TRUST INDENTURE BY AND BETWEEN KINNEY DRUGS, INC., AS ISSUER AND HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE DATED AS OF APRIL ___, 2008 5% Participating Promissory Notes due April 2015
Exhibit T3C
BY AND
BETWEEN
▇▇▇▇▇▇
DRUGS, INC., AS ISSUER
AND
HSBC BANK
USA, NATIONAL ASSOCIATION, AS TRUSTEE
DATED AS
OF APRIL ___, 2008
5%
Participating Promissory Notes due April 2015
TABLE OF
CONTENTS
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CROSS
REFERENCE TABLE
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a
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ARTICLE
1
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DEFINITIONS
AND INCORPORATION BY REFERENCE
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SECTION
1.01. DEFINITIONS
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- 1
-
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SECTION
1.02. OTHER DEFINITIONS
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- 4
-
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SECTION
1.03. INCORPORATION BY REFERENCE OF THE TRUST INDENTURE
ACT.
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- 4
-
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SECTION
1.04. RULES OF CONSTRUCTION.
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- 5
-
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ARTICLE
2
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THE
NOTES
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SECTION
2.01. FORM AND DATING.
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- 5
-
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SECTION
2.02. EXECUTION AND AUTHENTICATION
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- 5
-
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SECTION
2.03. REGISTRAR AND PAYING AGENT.
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- 6
-
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SECTION
2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
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- 7
-
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SECTION
2.05. LIST OF HOLDERS OF THE NOTES.
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- 7
-
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SECTION
2.06. TRANSFER.
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- 7
-
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SECTION
2.07. REPLACEMENT NOTES.
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- 8
-
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SECTION
2.08. OUTSTANDING NOTES.
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- 9
-
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SECTION
2.09. TREASURY NOTES.
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- 9
-
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SECTION
2.10. TEMPORARY NOTES.
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- 9
-
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SECTION
2.11 LEGEND; ADDITIONAL TRANSFER REQUIREMENTS.
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- 9
-
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ARTICLE
3
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REDEMPTION
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SECTION
3.01. REDEMPTION.
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-
10 -
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ARTICLE
4
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COVENANTS
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SECTION
4.01. PAYMENT OF NOTES
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-
10 -
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SECTION
4.02. FINANCIAL REPORTS.
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-
10 -
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SECTION
4.03. COMPLIANCE CERTIFICATE.
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-
11 -
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SECTION
4.04. FURTHER INSTRUMENTS AND ACTS.
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-
11 -
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SECTION
4.05. MAINTENANCE OF CORPORATE EXISTENCE; PROPERTY;
ETC.
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-
11 -
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SECTION
4.06. STAY, EXTENSION AND USURY LAWS.
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-
12 -
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ARTICLE
5
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CHANGE
IN CONTROL
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SECTION
5.01. MANDATORY REDEMPTION UPON CHANGE OF
CONTROL.
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-
12 -
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I
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ARTICLE
6
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DEFAULT
AND REMEDIES
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SECTION
6.01. EVENTS OF DEFAULT.
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-
12 -
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SECTION
6.02. ACCELERATION.
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-
13 -
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SECTION
6.03. REMEDIES NOT EXCLUSIVE.
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-
14 -
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SECTION
6.04. WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.
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-
14 -
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SECTION
6.05. CONTROL BY MAJORITY.
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-
14 -
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SECTION
6.06. LIMITATIONS ON LEGAL ACTION.
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-
14 -
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SECTION
6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
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-
15 -
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SECTION
6.08. COLLECTION BY TRUSTEE.
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-
15 -
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SECTION
6.09. TRUSTEE MAY FILE PROOF OF CLAIM.
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-
15 -
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SECTION
6.10. PRIORITIES.
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-
16 -
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SECTION
6.11. UNDERTAKINGS FOR COSTS.
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-
16 -
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SECTION
6.12. REMEDIES SUBJECT TO PROVISIONS OF LAW.
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-
16 -
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ARTICLE
7
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THE
TRUSTEE
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SECTION
7.01. OBLIGATIONS OF THE TRUSTEE.
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-
17 -
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SECTION
7.02. RIGHTS OF THE TRUSTEE.
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-
17 -
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SECTION
7.03. INDIVIDUAL RIGHTS OF THE TRUSTEE.
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-
18 -
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SECTION
7.05. NOTICE OF DEFAULT OR EVENTS OF DEFAULT.
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-
19 -
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SECTION
7.06. REPORTS BY TRUSTEE TO HOLDERS.
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-
19 -
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SECTION
7.07. COMPENSATION AND INDEMNITY.
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-
19 -
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SECTION
7.08. RESIGNATION AND REMOVAL OF TRUSTEE.
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-
20 -
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SECTION
7.09. SUCESSION BY MERGER, ETC.
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-
21 -
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SECTION
7.10. ELIGIBILITY; DISQUALIFICATION.
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-
21 -
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SECTION
7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
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-
22 -
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ARTICLE
8
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SATISFACTION
AND DISCHARGE OF INDENTURE
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SECTION
8.01. SATISFACTION AND DISCHARGE OF INDENTURE.
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-
22 -
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SECTION
8.02. APPLICATION OF TRUST MONEY.
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-
22 -
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SECTION
8.03. REPAYMENT TO COMPANY.
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-
23 -
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SECTION
8.04. REINSTATEMENT.
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-
23 -
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ARTICLE
9
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AMENDMENTS,
SUPPLEMENTS AND WAIVERS
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SECTION
9.01. WITHOUT CONSENT OF HOLDERS.
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-
23 -
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SECTION
9.02. WITH CONSENT OF THE HOLDERS.
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-
24 -
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SECTION
9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
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-
25 -
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SECTION
9.04. REVOCATION AND EFFECT OF CONSENTS.
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-
25 -
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SECTION
9.05. NOTATION ON OR EXCHANGE OF NOTES.
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-
25 -
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SECTION
9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
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-
26 -
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SECTION
9.07. EFFECT OF SUPPLEMENTAL INDENTURES.
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-
26 -
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II
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ARTICLE
10
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MISCELLANEOUS
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SECTION
10.01. TRUST INDENTURE ACT TO CONTROL.
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-
26 -
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SECTION
10.02. NOTICES.
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-
26 -
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SECTION
10.03. COMMUNICATIONS BY HOLDERS WITH OTHER
HOLDERS.
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-
27 -
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SECTION
10.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.
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-
27 -
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SECTION
10.05. STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION.
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-
27 -
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SECTION
10.06. RECORD DATE FOR VOTE OR CONSENT OF HOLDERS OF
NOTES.
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-
27 -
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SECTION
10.07. RULES BY THE TRUSTEE, REGISTRAR AND PAYING
AGENT.
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-
28 -
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SECTION
10.08. LEGAL HOLIDAYS.
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-
28 -
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SECTION
10.09. GOVERNING LAW.
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-
29 -
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SECTION
10.10. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS.
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-
29 -
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SECTION
10.11. NO RECOURSE AGAINST OTHERS.
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-
29 -
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SECTION
10.12. NO SECURITY INTEREST.
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-
29 -
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SECTION
10.13. SUCCESSORS.
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29 -
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SECTION
10.14. COUNTERPARTS.
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-
29 -
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SECTION
10.15. SEVERABILITY.
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29 -
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SECTION
10.16. TABLE CONTENTS; HEADINGS; ETC.
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-
30 -
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SECTION
10.17. WAIVER OF JURY TRIAL.
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-
30 -
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EXHIBIT
"A"
|
i
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EXHIBIT
"B"
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viii
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III
CROSS
REFERENCE TABLE
|
Trust
Indenture Act Section
|
Indenture
Section
|
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310(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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N/A
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(a)(4)
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N/A
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(a)(5)
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7.10
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(b)
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7.10
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(c)
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N/A
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311(a)
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7.11
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(b)
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7.11
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(c)
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N/A
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312(a)
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2.06
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(b)
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10.03
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(c)
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10.03
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313(a)
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7.06
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(b)
|
7.06
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(b)(1)
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N/A
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(b)(2)
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7.06
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|
(c)
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7.06
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(d)
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7.06
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314(a)
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N/A
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(b)
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N/A
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(c)(1)
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10.04
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(c)(2)
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10.04
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(c)(3)
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N/A
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(d)
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N/A
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(e)
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10.05
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(f)
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N/A
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315(a)
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N/A
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(b)
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7.05
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(c)
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N/A
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(d)
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N/A
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(e)
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6.11
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316(a)(1)(A)
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6.05
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(a)(1)(B)
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9.02
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(a)(2)
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N/A
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(b)
|
6.07
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(c)
|
10.06
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|
317(a)(1)
|
6.08
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|
(a)(2)
|
6.09
|
|
(b)
|
2.04
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|
318(a)
|
10.01
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(b)
|
N/A
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(c)
|
10.01
|
N/A means
Not Applicable
NOTE:
This Cross-Reference Table shall not, for any purpose, be deemed to be part of
this Indenture.
a
THIS
TRUST
INDENTURE (the "Indenture"),
dated as of April ___, 2008 is by and between ▇▇▇▇▇▇ DRUGS,
INC., a New York corporation having a place of business at ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company"),
and HSBC BANK
USA, NATIONAL ASSOCIATION, a national banking association being duly
qualified to accept and administer the trusts created hereby, having its
principal corporate trust office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "Trustee"),
WITNESSETH:
WHEREAS, the
Company has duly authorized and deems it necessary and desirable to enter into
this Indenture to provide for the issuance of the Notes (as defined herein) in
connection with the exchange of certain shares of the Company's common stock;
and
WHEREAS, all
acts and things necessary to constitute this Indenture a valid indenture and
agreement according to its terms have been done and performed, the Company has
duly authorized the execution and delivery of this Indenture, and the Company,
in the exercise of the legal rights and powers vested in it, executes this
Indenture and proposes to make, execute, issue and deliver the Notes hereunder;
and
WHEREAS, the
Trustee agrees to act as Trustee, Registrar and Paying Agent (as defined
herein),
NOW, THEREFORE,
in consideration of the premises, and of the giving of consideration for
and acceptance of the Notes issued hereunder by the Holders (as defined herein),
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, each party hereto agrees as follows for the
benefit of the other party and for the equal and ratable benefit of the
Holders:
ARTICLE
1
DEFINITIONS
AND INCORPORATION BY REFERENCE
SECTION
1.01. DEFINITIONS
"Affiliate"
of any specified Person means (a) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person or (b) any executive officer or director of such
specified Person. For purposes of this definition, "control," as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; provided
that beneficial ownership of ten percent (10%) or more of the Voting
Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" shall have correlative meanings.
"Agent"
means any Registrar, Paying Agent or co-registrar.
"Beneficial
Owner" has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act, except that in calculating the beneficial ownership of
any particular "person" (as that term is used in Section 13(d)(3) of the
Exchange Act), such "person" shall be deemed to have beneficial ownership of all
securities that such "person" has the right to acquire
-1-
by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "Beneficially Owns" and "Beneficially Owned" shall have a
corresponding meaning.
"Board of
Directors" means either the board of directors of the Company or any
committee of the Board of Directors authorized to act for it with respect to
this Indenture.
"Business
Day" means any day, other than a Saturday, Sunday or any other Legal
Holiday (as defined herein).
"Cash"
or "cash"
means such coin or currency of the United States as at any time of payment is
legal tender for the payment of public and private debts.
"Commission"
means the Securities and Exchange Commission.
"Company"
means the party named as such above, until a successor replaces such Person in
accordance with the terms of this Indenture, and thereafter means such
successor.
"Corporate
Trust Office of the Trustee" means, for purposes of presentation or
surrender of Notes for payment, registration, transfer, exchange or purchase or
for service of notices or demands upon the Company, the office of the Trustee at
which at any particular time its corporate trust business shall be administered
(or such other address as the Trustee may designate from time to time by notice
to the Holders and the Company) or the principal corporate trust office of any
successor Trustee (or such other address as a successor Trustee may designate
from time to time by notice to the Holders and the Company).
"Debt"
means all obligations of the Company for borrowed money in an aggregate
principal amount of greater than Fifty Million Dollars and 00/100
($50,000,000.00).
"Default"
means, when used with respect to the Notes, any event that is or, after notice
or passage of time, or both, would be, an Event of Default.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated by the Commission thereunder.
"Fair Market
Value" means the price that would be paid in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy, as determined in good
faith by the Board of Directors, whose determination shall be conclusive if
evidenced by resolution.
"GAAP"
means generally accepted accounting principles in the United States of America
as in effect from time to time, including those set forth in (a) the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants, (b) the statements and
pronouncements of the Public Company Accounting Oversight Board and the
Financial Accounting Standards Board, (c) such other statements by such
other entity as approved by a significant segment of the accounting profession
and (d) the rules and regulations of the Commission governing the inclusion
of financial statements (including pro forma financial statements) in
registration statements filed under the Securities Act and periodic reports
required to be filed pursuant to Section 13 of the Exchange Act, including
opinions and pronouncements
-2-
in staff
accounting bulletins and similar written statements from the accounting staff of
the Commission.
"Holder"
means the person in whose name a Note is registered on the Registrar's
books.
"Indenture"
means this Trust Indenture, as amended or supplemented from time to time in
accordance with the terms hereof.
"Issue
Date" means the date hereof, which is the date on which the Notes are
originally issued under this Indenture.
"Notes"
means the 5% Participating Promissory Notes of the Company issued on the
date hereof. All Notes shall vote together as one series of Notes
under this Indenture.
"Officer"
means the Chief Executive Officer, the President, any Vice President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer, or the Secretary
of the Company.
"Officer's
Certificate" means a certificate signed by an Officer and delivered to
the Trustee.
"Opinion of
Counsel." means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company.
"Person"
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or other entity.
"Property"
means, with respect to any Person, any interest of such Person in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible,
including capital stock in, and other securities of, any other Person. For
purposes of any calculation required pursuant to this Indenture, the value of
any Property shall be its Fair Market Value.
"Securities
Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"Subsidiary"
means, in respect of any Person, any corporation, association, partnership or
other business entity of which more than fifty percent (50%) of the total voting
power of shares of capital stock entitled (without regard to the occurrence of
any contingency within the control of such Person to satisfy) to vote in the
election of directors, managers, general partners or trustees thereof is at the
time owned or controlled, directly or indirectly, by (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or
(iii) one or more Subsidiaries of such Person.
"TIA"
means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in
effect on the date hereof; provided,
however,
that if the TIA is amended after the date hereof, "TIA" means, to the extent
required by any such amendment, the TIA as so amended.
"Trust
Officer of the Trustee" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice
-3-
president,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject, and who shall have direct responsibility for the
administration of this Indenture.
"Trustee"
means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor.
"Voting
Stock" of any Person as of any date means the capital stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
SECTION
1.02. OTHER DEFINITIONS
|
Term
|
|
Defined in Section
|
|
"Authentication
Order"
|
|
2.02(d)
|
|
"Act
of Bankruptcy"
|
Exhibit
"A"
|
|
|
"Appraised
Value"
|
Exhibit
"A"
|
|
|
"Bankruptcy
Law"
|
Exhibit
"A"
|
|
|
"Change
in Control"
|
Exhibit
"A"
|
|
|
"Event
of Default"
|
|
6.01
|
|
"Interest
Payment Date"
|
Exhibit
"A"
|
|
|
"Legal
Holiday"
|
|
10.08
|
|
"Maturity
Date"
|
Exhibit
"A"
|
|
|
"Note
Register"
|
|
2.03
|
|
"Paying
Agent"
|
|
2.03
|
|
"Receiver"
|
Exhibit
"A"
|
|
|
"Registrar"
|
|
2.03
|
|
"Regular
Record Date"
|
|
Exhibit
"A"
|
SECTION 1.03. INCORPORATION
BY REFERENCE OF THE TRUST INDENTURE ACT.
Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms, if
used in this Indenture, have the following meanings:
"Commission"
means the Commission.
"indenture
securities" means the Notes.
"indenture
security holder" means a Holder.
"indenture
to be qualified" means this Indenture.
-4-
"indenture
trustee" or "institutional
trustee" means the Trustee.
"obligor"
on the indenture securities means the Company.
All other
TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule have the meanings
assigned to them therein.
SECTION 1.04.
RULES OF CONSTRUCTION.
Unless
the context otherwise requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) "or"
is not exclusive;
(d) words
in the singular include the plural, and words in the plural include the
singular;
(e) any
gender used in this Indenture shall be deemed to include the neuter, masculine
or feminine genders;
(f) provisions
apply to successive events and transactions; and
(g) "herein,"
"hereof" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other
subdivision.
ARTICLE
2
THE
NOTES
SECTION
2.01. FORM AND DATING.
The
Notes and the Trustee's certificate of authentication shall be substantially in
the form of Exhibit "A"
hereto, the terms of which are incorporated in and made a part of this
Indenture. To the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall control.
The Notes may have such notations, legends or endorsements approved as to form
by the Company and required, as applicable, by law, agreements to which the
Company is subject and/or usage. Each Note shall be dated the date of its
authentication.
SECTION
2.02. EXECUTION AND AUTHENTICATION
(a) An
Officer of the Company shall sign the Notes for the Company, by manual or
facsimile signature. Typographic and other minor errors or defects in any such
facsimile
-5-
signature
shall not affect the validity or enforceability of any Note that has been
authenticated and delivered by the Trustee.
(b) If
an Officer of the Company whose signature is on a Note no longer holds that
office at the time such Note is authenticated such Note shall be valid
nevertheless.
(c) A
Note shall not be valid until an authorized signatory of the Trustee by manual
signature signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
(d) The
Trustee shall authenticate and make available for delivery Notes for the
original issue upon receipt of a written order or orders of the Company signed
by an Officer of the Company (the "Authentication
Order"). Such Authentication Order shall specify the amount of the Notes
to be authenticated and the date on which the original issue of Notes is to be
authenticated. The maximum aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is One Hundred Million Dollars
and 00/100 ($100,000,000.00). The Notes shall be issued in minimum
denominations of One Dollar and 00/100 ($1.00) and any whole multiples
thereof.
(e) The
Trustee shall act as the initial authenticating agent. Thereafter, the Trustee
may appoint an authenticating agent reasonably acceptable to the Company to
authenticate Notes. An authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent to deal with the Company or an Affiliate of the
Company.
(f) The
Notes shall be issuable only in registered form without coupons, rounded to the
nearest whole dollar amount.
SECTION 2.03. REGISTRAR
AND PAYING AGENT.
The
Company shall maintain (a) an office or agency where the Notes may be
presented for registration of transfer or for exchange (including any
co-registrar, the "Registrar");
and (b) an office or agency where the Notes may be presented for payment
("Paying
Agent"). The Registrar shall keep a register of the Holders and of the
transfer and exchange of such Notes (the "Note
Register"). The Company may appoint one or more co-registrars and one or
more additional paying agents. The term "Paying Agent" shall include any such
additional paying agent. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder of a Note. The Company shall
notify the Trustee and the Trustee shall, at the Company's expense, notify the
Holders of the name and address of any Agent not a party to this Indenture. The
Company may act as Paying Agent, Registrar or co-registrar. The Company shall
enter into an appropriate agency agreement with any Agent not a party to this
Indenture. Any such agency agreement shall implement the provisions of this
Indenture that relate to such Agent. If the Company fails to maintain
a Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee
shall act as such, as appropriate, and shall be entitled to appropriate
compensation in accordance with Section 7.07. The Company
initially appoints the Trustee to act as (a) Registrar and Paying Agent;
and (b) agent for service of notices and demands in connection with the
Notes.
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SECTION 2.04. PAYING
AGENT TO HOLD MONEY IN TRUST.
On or
prior to each due date of the principal of and interest on any Note, the Company
shall deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of the Holders or the Trustee all money held by the Paying
Agent for the payment of principal of and interest on the Notes, and shall
notify the Trustee of any Default by the Company in making any such payment.
While any such Default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee and to account for any funds disbursed. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee. Upon payment over to the Trustee and accounting for any funds
disbursed, the Paying Agent (if other than the Company) shall have no further
liability for the money delivered to the Trustee. If the Company acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
SECTION
2.05. LIST OF HOLDERS OF THE NOTES.
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of the Holders. If
the Trustee is not the Registrar, the Company shall furnish or cause to be
furnished to the Trustee at least ten (10) Business Days before each interest
payment date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of the Holders, including the aggregate principal amount
of Notes held by each such Holder of Notes.
SECTION
2.06. TRANSFER.
(a) Except
as otherwise provided herein, the Notes may not be transferred, pledged,
hypothecated, otherwise disposed of or given as collateral to any
Person.
(b) Subject
to compliance with any applicable additional requirements contained in Section
2.11, when a Note is presented to a Registrar with a request to register a
transfer thereof as permitted in the form of Note attached as Exhibit
"A" (a "Permitted
Transfer"), the Registrar shall register the Permitted Transfer as
requested ; provided, however,
that every Note presented or surrendered for registration of a Permitted
Transfer shall be accompanied by a transfer certificate in the form included in
Exhibit "B",
and completed in a manner satisfactory to the Registrar and duly executed by the
Holder thereof or its attorney duly authorized in writing. To permit
registration of Permitted Transfers, upon surrender of any Note for registration
of transfer at an office or agency maintained pursuant to Section 2.03, the
Company shall execute and the Trustee shall authenticate Notes of a like
aggregate principal amount at the Registrar's request. Any Permitted Transfer
shall be without charge, except that the Company or the Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto. Any sale of a Note for
consideration shall not be recognized by the Trustee, unless first approved in
writing by an Officer of the Company.
(c) All
Notes issued upon any Permitted Transfer shall be valid obligations of the
Company, evidencing the same debt and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such Permitted
Transfer.
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(d) Any
Registrar appointed pursuant to Section 2.03 shall provide to the Trustee
such information as the Trustee may reasonably require in connection with the
delivery by such Registrar of Notes upon transfer.
(e) Each
Holder of a 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 Note in violation of any provision of this Indenture and/or applicable
United States federal or state securities law.
(f) 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 Note
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
2.07. REPLACEMENT NOTES.
(a) If
any mutilated Note is surrendered to the Company, a Registrar or the Trustee,
and the Company, a Registrar and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and there is
delivered to the Company, the applicable Registrar and the Trustee such bond,
security or indemnity as will be required by them to save each of them harmless,
the Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Note or in lieu of
any such destroyed, lost or stolen Note, a new Note of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
(b) If
any such mutilated, destroyed, lost or stolen Note has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Note, pay such Note.
(c) Upon
the issuance of any new Notes under this Section 2.07, 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 as a result of any Notes, at the
request of any Holder, being issued to a Person other than such Holder and any
other reasonable expenses (including the reasonable fees and expenses of the
Trustee or the Registrar) in connection therewith.
(d) Every
new Note issued pursuant to this Section 2.07 in lieu of any mutilated,
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Notes duly issued hereunder.
(e) Except
as otherwise provided by applicable law, the provisions of this
Section 2.07 are
exclusive and shall preclude all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Notes.
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SECTION
2.08. OUTSTANDING NOTES.
(a) Notes
outstanding at any time are all Notes authenticated by the Trustee, except for
those canceled by it, those delivered to the Trustee for cancellation or
surrendered for transfer and those described in this Section 2.08 as not
outstanding. A Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds such Note.
(b) If
a Note is replaced pursuant to Section 2.07, it ceases to be outstanding
unless the Company receives proof satisfactory to it that the replaced Note is
held by a bona fide purchaser.
(c)
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date money sufficient to pay all
principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, and the Paying
Agent is not prohibited from paying such money to the Holders on that date
pursuant to the terms of this Indenture, then on and after that date such Notes
(or portions thereof) shall cease to be outstanding and interest thereon shall
cease to accrue.
SECTION
2.09. TREASURY NOTES.
In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company, any
Subsidiary or an Affiliate of the Company shall be considered as though they are
not outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee actually knows are so owned shall be
so disregarded.
SECTION
2.10. TEMPORARY NOTES.
Until
definitive Notes are ready for delivery, the Company may prepare and execute,
and, upon receipt of an Authentication Order, the Trustee shall authenticate and
deliver, temporary Notes. Temporary Notes shall be substantially in the form of
definitive notes but may have variations as the Company considers appropriate
for temporary Notes. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate and deliver definitive Notes in exchange for
temporary Notes. Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
SECTION
2.11. LEGEND; ADDITIONAL TRANSFER REQUIREMENTS.
(a) Every
Note shall be subject to the restrictions on transfer and shall bear the legend
set forth on the form of Notes attached as Exhibit "A"
(the "Legend"). All
Notes issued upon a Permitted Transfer or as replacement Notes shall be subject
to the restrictions on transfer and shall bear the Legend. Whenever any Note is
presented or surrendered for registration of Permitted Transfer or in exchange
for a Note registered in a name other than that of the Holder, such Note must be
accompanied by a certificate in substantially the form set forth in Exhibit "B",
dated the date of such surrender and signed by the Holder of such Note, as to
compliance with such restrictions on transfer. The Registrar shall not be
required to accept for such registration of transfer or exchange any Note not so
accompanied by a properly completed certificate.
-9-
(b) As
used in Section 2.11(a), the term "transfer" encompasses any sale, pledge,
transfer, hypothecation or other disposition of any Note.
ARTICLE
3
REDEMPTION
SECTION
3.01. REDEMPTION.
The
Company shall not be entitled to redeem any Notes prior to the Maturity
Date.
ARTICLE
4
COVENANTS
SECTION
4.01. PAYMENT OF NOTES.
(a) The
Company shall promptly make all payments in respect of the Notes on the dates
and in the manner provided in the Notes and this Indenture. A payment of
principal or interest shall be considered paid on the date it is due if the
Paying Agent (other than the Company or any of its Affiliates) holds by
10:00 a.m., New York City time, on that date money, deposited by or on
behalf of the Company sufficient to make the payment. Accrued and unpaid
interest on any Note that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Note is registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such purpose.
Principal and interest, if payable, shall be considered paid on the applicable
date due if on such date the Trustee or the Paying Agent holds, in accordance
with this Indenture, money sufficient to pay all such amounts then due. The
Company shall, to the fullest extent permitted by law, pay interest in
immediately available funds on overdue principal amount and interest at the
annual rate borne by the Notes compounded quarterly, which interest shall accrue
from the date such overdue amount was originally due to the date payment of such
amount, including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand.
(b) Payment
of the principal of and interest, if any, on the Notes shall be made at the
office or agency of the Company maintained for that purpose in Gouverneur, New
York or at the Corporate Trust Office of the Trustee in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address appears in
the Note Register; provided further that a Holder with an aggregate principal
amount in excess of One Hundred Thousand Dollars and 00/100 ($100,000.00) will
be paid by wire transfer in immediately available funds at the election of such
Holder if such Holder has provided wire transfer instructions to the Trustee at
least ten (10) Business Days prior to the payment date. Any wire transfer
instructions received by the Trustee will remain in effect until revoked by the
Holder.
SECTION
4.02. FINANCIAL REPORTS.
(a) So
long as any Notes are outstanding, the Company shall furnish to the Trustee all
(i) internal quarterly unaudited financial information within sixty (60) days
after the close of
-10-
each
fiscal quarter; and (ii) internal annual audited financial information within
one hundred twenty (120) days after the close of each fiscal year, including,
with respect to the annual information only, a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and a report on the
Company's annual financial statements by the Company's certified independent
accountants.
(b) Delivery
of such reports, information, and documents to the Trustee pursuant to the
provisions of this Section 4.02 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).
SECTION
4.03. COMPLIANCE CERTIFICATE.
The
Company shall deliver to the Trustee, within one hundred twenty (120) days
after the end of each fiscal year of the Company (beginning with the fiscal year
ending on December 31, 2008), an Officer's Certificate as to the signer's
knowledge after due inquiry of the Company's compliance with all terms,
conditions and covenants on its part contained in this Indenture and stating
whether or not the signer knows of any Default or Event of Default. If such
signer knows of such a Default or Event of Default, the Officer's Certificate
shall describe the Default or Event of Default and the efforts to remedy the
same. For the purposes of this Section 4.03, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
SECTION
4.04. FURTHER INSTRUMENTS AND ACTS.
The
Company will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purposes of this Indenture.
SECTION
4.05. MAINTENANCE OF CORPORATE EXISTENCE; PROPERTY; ETC.
(a) The
Company shall preserve its corporate or other legal existence and all its rights
and licenses to the extent necessary or desirable in the operation of its
business and affairs and be qualified to do business in each jurisdiction where
its ownership of Property or the conduct of its business requires such
qualifications; provided,
however,
that nothing herein contained shall be construed to obligate it to retain or
preserve any of its rights or licenses, no longer used or, in the judgment of
the Board of Directors, useful in the conduct of its
business.
(b) The
Company shall do all things reasonably necessary to conduct its affairs and
carry on its business and operations in such manner as to comply with any and
all applicable laws of the United States and the several states thereof and duly
observe and conform to all valid orders, regulations or requirements of any
governmental authority relative to the conduct of its business; provided,
nevertheless, that nothing herein contained shall require it to comply with,
observe and conform to any such law, order, regulation or requirement of any
governmental authority so long as the validity thereof or the applicability
thereof to it shall be contested in good faith.
-11-
(c) The
Company shall promptly pay when due all lawful taxes, governmental charges and
assessments at any time levied or assessed upon or against it; provided,
however,
that it shall have the right to contest in good faith any such taxes, charges or
assessments or the collection of any such sums and pending such contest may
delay or defer payment thereof.
(d) The
Company shall promptly pay or otherwise satisfy and discharge all of its Debt
and all demands and claims against it as and when the same become due and
payable, other than any thereof (exclusive of the Notes issued hereunder) whose
validity, amount or collectibility is being contested in good
faith.
SECTION
4.06. STAY, EXTENSION AND USURY LAWS.
The
Company covenants (to the extent that it may lawfully do so) that it shall not
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the
principal of or accrued but unpaid interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture, and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE
5
CHANGE IN
CONTROL
SECTION
5.01. MANDATORY REDEMPTION UPON CHANGE OF CONTROL.
Notwithstanding Section 3.01 above, upon the occurrence
of a Change in Control, the Company shall redeem the Notes at the time and in
the manner set forth on form of Notes attached hereto as Exhibit
"A".
ARTICLE
6
DEFAULT
AND REMEDIES
SECTION
6.01. EVENTS OF DEFAULT.
(a) The
following events shall constitute "Events of
Default":
(i) a
default in the payment by the Company of accrued and unpaid interest on the
Notes, which has continued for thirty (30) days;
(ii) a
default by the Company in the payment of principal of the Notes when due and
payable;
(iii) a
default by the Company in the performance or breach of any other covenant or
warranty contained in the Notes or this Indenture, continuing for sixty (60)
days after written notice provided to the Company by the Trustee or by the
Holders of twenty-five percent (25%) or more of the aggregate principal amount
of all outstanding Notes;
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(iv) a
default under any Debt by the Company that results in acceleration of maturity
of such Debt, or failure to pay any such Debt at maturity;
(v) the
occurrence of an Act of Bankruptcy.
SECTION
6.02. ACCELERATION.
(a) If
an Event of Default (other than an Event of Default due to the occurrence of an
Act of Bankruptcy) occurs and is continuing, the Trustee may, by notice to the
Company, or the Holders of at least twenty five (25%) in aggregate principal
amount of the Notes then outstanding may, by notice to the Company and the
Trustee, declare the principal amount and accrued and unpaid interest, if any,
through the date of declaration on all the Notes to be immediately due and
payable. Upon such a declaration, such principal amount and such accrued and
unpaid interest, if any, shall be due and payable immediately. If there are any
amounts outstanding under any instruments constituting Debt, such amounts
described in the immediately preceding sentence shall become due and payable
upon the first to occur of an acceleration under any instruments constituting
Debt or five (5) Business Days after receipt by the Company of notice of the
acceleration of the Notes, unless all Events of Default specified in such notice
of acceleration have been cured or waived.
(b) If
an Event of Default occurs due to an Act of Bankruptcy by the Company, and is
continuing, the principal amount and accrued but unpaid interest, if any, on all
the Notes shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders of
Notes.
(c) At
any time after such a declaration of acceleration with respect to the 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
not less than a majority in principal amount of the Notes, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(i) the
Company has paid or deposited with the Trustee a sum sufficient to pay in the
currency in which the Notes are payable:
(A) all
overdue installments of interest on all outstanding Notes,
(B) the
principal of any outstanding Notes which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates borne by
or provided for in the Notes,
(C) to
the extent that payment of such interest is lawful, interest upon overdue
installments of interest at the rate or rates borne by or provided for in the
Notes, and
(D) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(ii) all
Events of Default with respect to the Notes, other than the nonpayment of the
principal of (or premium, if any) or interest on the Notes which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 6.04.
-13-
SECTION
6.03. REMEDIES NOT EXCLUSIVE.
(a) If
an Event of Default occurs and is continuing, the Trustee may, but shall not be
obligated to, pursue any available remedy by proceeding at law or in equity to
collect payment of the principal amount and accrued and unpaid interest, if any,
on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
(b) The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by
applicable law.
SECTION
6.04. WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.
Subject
to Sections 6.07 and 9.02, the Holders of not less than a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may waive an existing Default or Event of Default and its consequences,
except an uncured Default or Event of Default in the payment of the principal
of, or any accrued but unpaid interest, if any, on any Note, or any Default or
Event of Default in respect of any provision of this Indenture or the Notes
which, under Section 9.02, cannot be modified or amended without the
consent of the Holder of each Note affected. When a Default or Event of Default
is waived, it is cured and ceases to exist.
SECTION
6.05. CONTROL BY MAJORITY.
If an
Event of Default shall have occurred and be continuing, the Holders of not less
than a majority in aggregate principal amount of the Notes outstanding shall
have the right, at any time, by an instrument in writing executed and delivered
to the Trustee and accompanied by indemnity satisfactory to the Trustee, to
direct the method and place of conducting any proceeding to be taken in
connection with the enforcement of the terms and conditions hereof or for the
appointment of a receiver or any other proceedings hereunder, provided that such
direction is not in conflict with any applicable law or the provisions hereof,
and is not unduly prejudicial to the interest of any Holders not joining in such
direction, and provided further, that the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall
determine that the proceeding so directed would involve it in personal
liability, and provided further that nothing in this Section shall impair the
right of the Trustee in its discretion to take any other action hereunder which
it may deem proper and which is not inconsistent with such direction by the
Holders.
SECTION
6.06. LIMITATIONS ON LEGAL ACTION.
(a) A
Holder may not pursue any remedy with respect to this Indenture or the Notes
unless:
(i) the
Holder gives to the Trustee written notice of a continuing Event of
Default;
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(ii) the
Holders of at least twenty five percent (25%) in aggregate principal amount of
the then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(iii) such
Holder or Holders offer to the Trustee security or indemnity satisfactory to it
against any loss, liability or expense;
(iv) the
Trustee does not comply with the request within sixty (60) days after
receipt of the request and the offer of security or indemnity;
and
(v) no
direction inconsistent with such written request has been given to the Trustee
during such sixty (60) day period by the Holders of a majority in aggregate
principal amount of the Notes then outstanding.
(b) No
Holder shall have any right under any provision of this Indenture or the Notes
to affect, disturb, or prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
SECTION
6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding anything contained herein to the
contrary, the right of any Holder to receive payment of the principal and
interest in respect of the Notes held by such Holder, on or after the respective
due dates expressed in the Notes and this Indenture, is absolute and
unconditional and shall not be impaired or affected without the consent of the
Holder.
SECTION
6.08. COLLECTION BY TRUSTEE.
If an
Event of Default described in clauses (i) or (ii) of
Section 6.01(a) occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company or
another obligor on the Notes for the whole amount owing with respect to the
Notes and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
SECTION
6.09. TRUSTEE MAY FILE PROOF OF CLAIM.
The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor on the Notes), its
creditors or its property and shall be entitled and empowered to collect and
receive any money or other property payable or deliverable on any such claims
and to distribute the same, and any Receiver 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 to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07, and
to the extent
-15-
that such
payment of the reasonable compensation, expenses, disbursements and advances in
any such proceedings shall be denied for any reason, payment of the same shall
be secured by a lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other property which the Holders may be
entitled to receive in such proceedings, whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to, or, on
behalf of any Holder, to authorize, accept or adopt any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.
SECTION
6.10. PRIORITIES.
(a) If
the Trustee collects any money pursuant to this Article 6, it shall pay out
the money in the following order:
(i) First,
to the Trustee for amounts due under Section 7.07;
(ii) Second,
to Holders for amounts due and unpaid on the Notes for the principal and
interest, ratably, without preference or priority of any kind, according to such
respective amounts due and payable on the Holders' Notes;
and
(iii) Third,
the balance, if any, to the Company.
(b) The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 6.10.
SECTION
6.11. UNDERTAKINGS FOR COSTS.
In any
suit for the enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken or omitted by it as Trustee, a
court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit made by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by Holders of more than twenty
five percent (25%) in aggregate principal amount of the Notes then outstanding.
This Section 6.11 shall be in lieu of Section 315(e) of the TIA and such
Section 315(e) is hereby expressly excluded from this Indenture, as permitted by
the TIA.
SECTION
6.12. REMEDIES SUBJECT TO PROVISIONS OF LAW.
All
rights, remedies and powers provided by this Article 6 may be exercised only to
the extent that the exercise thereof does not violate any applicable provision
of law, and all the provisions of this Article 6 are intended to be subject to
all applicable mandatory provisions of law which may be controlling and to be
limited to the extent necessary so that they will not render this instrument or
the provisions hereof invalid or unenforceable under the provisions of any
applicable law.
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ARTICLE
7
THE
TRUSTEE
SECTION
7.01. OBLIGATIONS OF THE TRUSTEE.
The
duties and responsibilities of the Trustee shall be as provided by the TIA. No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. 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 7.01 and Section 7.02. The Trustee shall not be liable for interest
on any money or asset received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
SECTION
7.02. RIGHTS OF THE TRUSTEE.
Subject
to Section 7.01:
(a) The
Trustee may rely and shall be protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note 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) Before
the Trustee acts or refrains from acting, it may require an Officer's
Certificate or an Opinion of Counsel, which shall conform to
Section 10.04(b). The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officer's
Certificate or Opinion of Counsel.
(c) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys or custodians, and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any such agent, attorney or custodian appointed by the Trustee with due
care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or
powers.
(e) The
Trustee may consult with counsel of its selection, and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and
protection in respect of any such action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The
Trustee shall not be required to give any bond or surety with respect to the
execution of its rights and duties under this Indenture. The Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by this
Indenture or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders shall have offered to the Trustee security
or indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
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(g) 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 of the Company, and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation. The reasonable expense
of every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand from the Company's own
funds.
(h) The
Trustee shall not be deemed to have notice or knowledge of any Default or Event
of Default unless a Trust Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a Default is received
by the Trustee at the Corporate Trust Office, and such notice references the
Notes and this Indenture. In the absence of receipt of such notice or actual
knowledge, the Trustee may conclusively assume that there is no Default or Event
of Default.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder,
including, without limitation as Paying Agent and Registrar, and to each agent,
custodian and other Person employed to act hereunder.
(j) The
right of the Trustee to perform any discretionary act enumerated in this
Indenture shall not be construed as a duty, and the Trustee shall not be
answerable for other than its own gross negligence or willful misconduct in the
performance of such act.
(k) In
no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(l) 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 directions of the Holders of a
majority in principal amount of the Notes relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture.
SECTION
7.03. INDIVIDUAL RIGHTS OF THE TRUSTEE.
Subject
to Sections 7.10 and 7.11 below, the Trustee in its individual or any other
capacity may become the owner or pledgee of Notes and may otherwise deal with
the Company or an Affiliate of the Company with the same rights it would have if
it were not Trustee. Any Agent may do the same with like
rights.
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SECTION
7.04. TRUSTEE'S DISCLAIMER.
The
Trustee makes no representation as to the validity or adequacy of this Indenture
or the Notes and the Trustee assumes no responsibility for their correctness. It
shall not be accountable for the Company's use of the proceeds from the Notes
and it shall not be responsible for any statement in the Notes or the recitals
thereto or hereto other than its certificate of
authentication.
SECTION
7.05. NOTICE OF DEFAULT OR EVENTS OF DEFAULT.
If a
Default or an Event of Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Holder of a Note notice of all
uncured Defaults or Events of Default known to it within ninety (90) days
after it occurs, unless such Default or Event of Default shall have been cured
or waived. However, the Trustee may withhold the notice if and for so long as a
committee of its Trust Officers in good faith determines that withholding notice
is in the interests of Holders of Notes, except in the case of a Default or an
Event of Default in payment of the principal of, or premium, if any, or interest
on any Note when due or in the payment of any redemption or purchase obligation.
This Section 7.05 is in lieu of Section 315(b) of the TIA and such
provision is expressly excluded from this Indenture as permitted by the
TIA.
SECTION
7.06. REPORTS BY TRUSTEE TO HOLDERS.
(a) If
a report is required by TIA Section 313, within sixty (60) days after
each May 15th, beginning with the May 15th following
the date of this Indenture, the Trustee shall mail to each Holder of Notes a
brief report dated as of such May 15th that complies with TIA
Section 313(a). If required by TIA Section 313, the Trustee also shall
comply with TIA Sections 313(b)(2) and (c). In the event that no events
have occurred under the applicable sections of the TIA, the Trustee shall be
under no duty or obligation to provide such reports.
(b) A
copy of each report at the time of its mailing to Holders of Notes shall be
mailed to the Company and, to the extent required by the TIA, filed with the
Commission. The Company shall notify the Trustee whenever the Notes become
listed on any stock exchange or listed or admitted to trading on any quotation
system and any changes in the stock exchanges or quotation systems on which the
Notes are listed or admitted to trading and of any delisting
thereof.
SECTION
7.07. COMPENSATION AND INDEMNITY.
(a) The
Company shall pay to the Trustee from time to time such compensation (as agreed
to from time to time by the Company and the Trustee in writing) for its services
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust).
(b) Except
as otherwise expressly provided herein, the Company shall reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee, including fees on collection and enforcement,
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and its agents),
except any such expense, disbursement or advance as may be attributable to its
gross negligence or bad faith.
-19-
(b) The
Company shall indemnify the Trustee or any predecessor Trustee (which for
purposes of this Section 7.07 shall include its officers, directors,
employees and agents) for, and hold it harmless against, any and all loss,
claim, damage, liability or expense including taxes (other than franchise taxes
and taxes based upon, measured by or determined by the income of the Trustee),
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture or any action or failure to
act as authorized or within the discretion or rights or powers conferred upon
the Trustee hereunder including the reasonable costs and expenses of the Trustee
(including reasonable legal fees and expenses) and its counsel in
defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. The Company need not pay for any
settlement effected without its prior written consent, which shall not be
unreasonably withheld. Notwithstanding anything contained herein to the
contrary, in no event shall the Trustee be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
(c) The
Company shall have no obligation to reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it determined to have
been caused by its own gross negligence or willful
misconduct.
(d) The
Trustee shall have a senior claim to which the Notes are hereby made subordinate
on all money or property held or collected by the Trustee. The obligations of
the Company under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture or the resignation or removal of the
Trustee.
(e) When
the Trustee incurs expenses or renders services after an Event of Default due to
an Act of Bankruptcy, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law. The
provisions of this Section shall survive the termination of this
Indenture.
SECTION
7.08. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) The
Trustee may resign on its motion or may be removed at any time by an instrument
or instruments in writing signed by the Holders of not less than a majority of
the aggregate principal amount of Notes then outstanding. The Company
may remove the Trustee at any time, so long as no Default or Event of Default
has occurred and is continuing, and appoint a successor Trustee in accordance
with this Section 7.08.
(b) If
the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
If the Company fails to promptly appoint a successor Trustee, the Trustee shall
have the right to choose a qualified Trustee as successor, and the Company shall
appoint such successor as Trustee. The resignation or removal of a Trustee shall
not be effective unless and until a successor Trustee shall have delivered the
written acceptance of its appointment, as described below.
(c) If
a successor Trustee does not take office within thirty (30) days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of ten percent (10%) in principal amount of the Notes then outstanding
may petition any court of competent jurisdiction for the appointment of a
temporary successor Trustee at the expense of the Company.
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(d) If
the Trustee fails to comply with Section 7.10,
any Holder who has been a bona fide holder of a Note for at least six (6) months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
(e) Every
successor Trustee howsoever appointed hereunder shall execute, acknowledge and
deliver to its predecessor and also to the Company an instrument in writing,
accepting such appointment hereunder, and thereupon such successor Trustee,
without further action, shall become fully vested with all the rights,
immunities, powers, trusts, duties and obligations of its predecessor, and such
predecessor shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of such
predecessor. The predecessor Trustee shall execute any and all
documents necessary or appropriate to convey all interest it may have to the
successor Trustee. The predecessor Trustee shall promptly deliver all
material records relating to the trust or copies thereof and, on request,
communicate all material information it may have obtained concerning the trust
to the successor Trustee.
(f) Each
successor Trustee, not later than ten (10) days after its assumption of the
duties hereunder, shall mail a notice of such assumption to each
Holder.
(g) A
retiring Trustee shall not be liable for the acts or omissions of any successor
Trustee after its succession.
(h) Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.
SECTION
7.09. SUCESSION BY MERGER, ETC.
If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business (including the administration
of this Indenture) to, another corporation, the resulting, surviving or
transferee corporation, without any further act, shall be the successor Trustee;
provided such transferee corporation shall qualify and be eligible under
Section 7.10. Such successor Trustee shall promptly mail notice of its
succession to the Company and each Holder.
SECTION
7.10. ELIGIBILITY; DISQUALIFICATION.
The
Trustee shall satisfy the requirements of paragraphs (1), (2) and
(5) of TIA Section 310(a). The Trustee (or its parent holding company)
shall have a combined capital and surplus of at least Fifty Million Dollars and
00/100 ($50,000,000.00) as set forth in its most recent published annual report
of condition. If at any time the Trustee shall cease to satisfy any such
requirements, it shall resign immediately in the manner and with the effect
specified in this Article 7. The Trustee shall be subject to the provisions
of TIA Section 310(b). Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the penultimate paragraph of
TIA Section 310(b).
-21-
SECTION
7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent provided
therein.
ARTICLE
8
SATISFACTION
AND DISCHARGE OF INDENTURE
SECTION
8.01. SATISFACTION AND DISCHARGE OF INDENTURE.
(a) This
Indenture shall cease to be of further force and effect, and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
either:
(i) all
Notes theretofore authenticated and delivered (other than (A) Notes which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.08; and (B) Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 8.03) have been delivered to the Trustee for
cancellation; or
(ii) all
such Notes not theretofore delivered to the Trustee for cancellation have become
due and payable, whether at the Maturity Date or otherwise; provided
that
(A) the
Company has deposited with the Trustee, or a Paying Agent (other than the
Company or any of its Affiliates) immediately available funds in trust, for the
purpose of and in an amount sufficient to pay and discharge all indebtedness and
obligations related to such Notes not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such
deposit;
(B) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(C) the
Company has delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein relating to the
satisfaction and discharge of this Indenture have been complied
with.
(b) Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 7.07 and, if money shall have been deposited
with the Trustee pursuant to clause (A) of Section 8.01(a)(ii), the
provisions of Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.12, 4.01 and this
Article 8, shall survive until the Notes have been paid in
full.
SECTION
8.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of
Section 8.03, the Trustee or a Paying Agent shall hold in trust, for the
benefit of the Holders, all money deposited with it pursuant to
Section 8.01 and shall apply the deposited money in accordance with this
Indenture and the Notes to the payment of the principal of and interest on the
Notes.
-22-
SECTION
8.03. REPAYMENT TO COMPANY.
(a) The
Trustee and each Paying Agent shall promptly pay to the Company upon request any
excess money (i) deposited with them pursuant to Section 8.01; and
(ii) held by them at any time.
(b) The
Trustee and each Paying Agent shall, subject to applicable laws relating to the
abandonment of property, pay to the Company upon request any money held by them
for the payment of principal or interest that remains unclaimed for two (2)
years after a right to such money has matured; provided,
however,
that the Trustee or such Paying Agent, before being required to make any such
payment, may at the expense of the Company cause to be mailed to each Holder
entitled to such money notice that such money remains unclaimed and that after a
date specified therein, which shall be at least thirty (30) days from the
date of such mailing, any unclaimed balance of such money then remaining will be
repaid to the Company. After payment to the Company, Holders entitled to money
must look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
SECTION
8.04. REINSTATEMENT.
If the Trustee or any Paying Agent is unable
to apply any money in accordance with Section 8.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01
until such time as the Trustee or such Paying Agent is permitted to apply all
such money in accordance with Section 8.02; provided,
however,
that if the Company has made any payment of the principal of or interest on any
Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive any such
payment from the money held by the Trustee or such Paying
Agent.
ARTICLE
9
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
SECTION
9.01. WITHOUT CONSENT OF HOLDERS.
(a) Without
the consent of any Holders of the Notes, the Company, when authorized by or
pursuant to a resolution of the Board of Directors, and the Trustee, may enter
into an indenture or indentures supplemental hereto for any of the following
purposes:
(i) to
cure any ambiguity, defect or omission herein;
(ii) to
correct or supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising hereunder and which shall not materially and adversely
affect the interests of the Holders;
(iii) to
provide for un-certificated Notes in addition to or in place of certificated
Notes;
-23-
(iv) to
comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the TIA;
(v) to
evidence and provide for the acceptance of appointment by a successor Trustee
and to add to or change any of the provisions of this Indenture as is necessary
to provide for or facilitate the administration of the trusts under this
Indenture by more than one Trustee;
(vi) to
provide for rights of Holders of the Notes upon any reclassification or change
of the Company's common stock;
(vii) to
supplement any of the provisions of this Indenture to the extent necessary to
permit or facilitate satisfaction and discharge of the Notes under this
Indenture, provided that such action shall not adversely affect the interests of
the Holders in any material respect; or
(viii) to make
any other change that would provide any additional rights or benefits to the
Holders or that does not materially adversely affect the legal rights under this
Indenture of any such Holder; provided
that the Company provides the Trustee an opinion of the external counsel of the
Company stating that such change does not materially adversely affect the rights
of any Holder of the Notes.
(b) The
Trustee is hereby authorized to join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into any such
supplemental indenture which adversely affects its own rights, duties or
immunities under this Indenture. The consent of the holders of the
Notes is not necessary to approve the particular form of any proposed amendment.
It is sufficient if such consent approves the substance of the proposed
amendment.
SECTION
9.02. WITH CONSENT OF HOLDERS.
(a) The
Company and the Trustee may amend or supplement this Indenture or the Notes with
the written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding and affected by such amendment or
supplement (voting together as a single class). However, subject to
Section 9.04, without the written consent of each Holder affected, an
amendment, supplement or waiver may not:
(i) change
the stated maturity of the principal of, or any installment of principal of, or
interest on, the Notes;
(ii) reduce
the principal amount of or the rate of interest on the
Notes;
(iii) change
the place of payment, or the coin or currency, for payment of principal of, or
interest on, the Notes;
(iv) impair
the right to institute suit for the enforcement of any payment on or with
respect to Notes;
-24-
(v) reduce
the above stated percentage in principal amount of outstanding Notes necessary
to modify or amend this Indenture, to waive compliance with specified provisions
thereof or specified defaults and consequences thereunder or to reduce the
quorum or voting requirements set forth in this Indenture;
or
(vi) modify
any of the provisions of this Section 9.02 or Sections 6.02, 6.04,
6.05 or 7.08(a) of this
Indenture, except to increase the required percentage to effect such action or
to provide that specified other provisions of this Indenture may not be modified
or waived without the consent of the Holders of each Outstanding Note affected
thereby.
(b) Without
limiting the foregoing Section 9.02(a), the Holders of a majority in
principal amount of the Notes then outstanding may, on behalf of all the Holders
of all Notes (i) waive compliance by the Company with the restrictive
provisions of this Indenture; and (ii) waive any past Default or Event of
Default under this Indenture and its consequences, except an uncured failure to
pay when due the principal amount or accrued and unpaid interest, or in respect
of any provision which under this Indenture cannot be modified or amended
without the consent of the Holder of each outstanding Note
affected.
(c) After
an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall promptly mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
SECTION
9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of
this Indenture or the Notes shall comply with the TIA as in effect at the date
of such amendment or supplement.
SECTION
9.04. REVOCATION AND EFFECT OF CONSENTS.
(a) Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder or subsequent Holder may revoke the consent as to its Note or
portion of a Note if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective.
(b) After
an amendment, supplement or waiver becomes effective, it shall bind every Holder
of a Note.
SECTION
9.05. NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver
changes the terms of a Note, the Trustee may require the Holder of the Note to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Note regarding the changed terms and return it to the Holder. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee shall authenticate a new Note reflecting the changed
terms.
-25-
SECTION
9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The
Trustee shall sign any amendment or supplemental indenture authorized pursuant
to this Article 9 if the amendment or supplemental indenture does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, in its sole discretion, but need not, sign it. In
signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be provided with and, subject to Section 7.01,
shall be fully protected in relying upon, an Officer's Certificate and Opinion
of Counsel stating that such amendment or supplemental indenture is authorized
or permitted by this Indenture. The Company may not sign an amendment or
supplement indenture until the Board of Directors approves
it.
SECTION
9.07. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the
execution of any supplemental indenture under this Article 9, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
ARTICLE
10
MISCELLANEOUS
SECTION
10.01. TRUST INDENTURE ACT TO CONTROL.
If any
provision of this Indenture limits, qualifies, or conflicts with the duties
imposed by operation of TIA Section 318(c), the imposed duties shall
control.
SECTION
10.02. NOTICES.
Any
demand, authorization notice, request, consent or communication shall be given
in writing and delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows or transmitted by facsimile transmission
(confirmed by delivery in person or mail by first-class mail, postage prepaid,
or by guaranteed overnight courier) to the following facsimile
numbers:
If to the
Company:
▇▇▇▇▇▇
Drugs, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
or if to
the Trustee:
HSBC Bank
USA, National Association
▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
-26-
SECTION
10.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Holders
of Notes may communicate pursuant to TIA Section 312(b) with other Holders of
Notes with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA Section 312(c).
SECTION
10.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.
Upon
any request or application by the Company to the Trustee to take any action
under this Indenture (except with respect to the initial issuance of the Notes),
the Company shall furnish to the Trustee, at the request of the
Trustee:
(a) an
Officer's Certificate (which shall include the statements set forth in
Section 10.05) stating that, in the opinion of the signers, the conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent (including any covenants, compliance with which constitutes
a condition precedent) have been complied with.
SECTION
10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a
statement that the person making such certificate or opinion has read such
covenant or condition;
(b) 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;
(c) a
statement that, in the opinion of each such person, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(d) a
statement as to whether or not, in the opinion of each such person, such
covenant or condition has been complied with.
SECTION
10.06. RECORD DATE FOR VOTE OR CONSENT OF HOLDERS OF
NOTES.
(a) The
Company (or, in the event deposits have been made pursuant to Section 8.01,
the Trustee) may set a record date for purposes of determining the identity of
Holders entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture, which record date shall not be more than
thirty (30) days prior to the date of the commencement of solicitation of
such action. Notwithstanding the provisions of Section 9.04, if a record
date is fixed, those persons who were Holders of Notes at the close of business
on such record date (or their duly designated proxies), and only those persons,
shall be entitled to take such action by vote or consent or to revoke any vote
or consent previously given, whether or not such persons continue to be Holders
after such record date.
-27-
(b) A
meeting will be permitted to be called at any time by the Trustee, and also,
upon request, by the Company or the Holders of at least twenty five percent
(25%) in principal amount of the outstanding Notes, in any such case upon
written notice given as provided in this Indenture. Except for any consent that
must be given by the Holder of each Note affected by specified modifications and
amendments of this Indenture, any resolution presented at a meeting or adjourned
meeting duly reconvened at which a quorum is present will be permitted to be
adopted by the affirmative vote of the Holders entitled to vote a majority in
aggregate principal amount of the outstanding Notes represented at that meeting;
provided,
however,
that, except as referred to above, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the outstanding Notes may be
adopted at a meeting or adjourned meeting duly reconvened at which a quorum is
present by the affirmative vote of the Holders of such specified percentage in
principal amount of the outstanding Notes. Any resolution passed or decision
taken at any meeting of Holders of Notes duly held in accordance with this
Indenture will be binding on all Holders of such Notes, whether or not present
or represented at the meeting. The quorum at any meeting of Holders of the Notes
called to adopt a resolution, and at any reconvened meeting, will be persons
holding or representing a majority in principal amount of such outstanding
Notes; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which may be given by the Holders of not less than a specified percentage
in principal amount of the outstanding Notes, the persons holding or
representing such specified percentage in principal amount of such outstanding
Notes will constitute a quorum.
(c) Notwithstanding
the foregoing provisions, if any action is to be taken at a meeting of Holders
of the Notes with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage in
principal amount of all outstanding Notes affected thereby:
(i) there
shall be no minimum quorum requirement for such meeting; and
(ii) the
principal amount of such outstanding Notes that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
SECTION
10.07. RULES BY THE TRUSTEE, REGISTRAR AND PAYING AGENT.
The
Trustee may make reasonable rules (not inconsistent with the terms of this
Indenture) for action by or at a meeting of Holders. Any Registrar or Paying
Agent may make reasonable rules for its functions.
SECTION
10.08. LEGAL HOLIDAYS.
A "Legal
Holiday" is a Saturday, Sunday or a day on which state or federally
chartered banking institutions in City of New York are authorized or obligated
by law or executive order to close. If a payment date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a Regular Record
Date is a Legal Holiday, the record date shall not be
affected.
-28-
SECTION
10.09. GOVERNING LAW.
This
Indenture and the Notes shall be governed by, and construed in accordance with,
the laws of the State of New York.
SECTION
10.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION
10.11. NO RECOURSE AGAINST OTHERS.
No
director, officer, employee or shareholder of the Company, as such, will have
any liability for any obligations of the Company under the Notes, this
Indenture, or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to
waive liabilities under the federal securities laws.
SECTION
10.12. NO SECURITY INTEREST.
Nothing
in this Indenture or in the Notes, express or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, now in effect or hereafter enacted and made effective, in any
jurisdiction.
SECTION
10.13. SUCCESSORS.
All
agreements of the Company in this Indenture and the Notes shall bind its
successor. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION
10.14. COUNTERPARTS.
This
Indenture may be executed in any number of counterparts with the same effect as
if all the parties had signed the same document. All counterparts
taken together shall constitute one and the same document.
SECTION
10.15. SEVERABILITY.
Any
provision of this Indenture or the Notes which is or becomes prohibited or
unenforceable in any jurisdiction shall not invalidate or impair the remaining
provisions of this Indenture or the Notes, which shall be deemed severable from
the prohibited or unenforceable provisions, and any prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable that provision in any other jurisdiction.
-29-
SECTION
10.16. TABLE OF CONTENTS; HEADINGS; ETC.
The table
of contents, cross-reference table and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, shall not
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION
10.17. WAIVER OF JURY TRIAL.
EACH OF
THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
[SIGNATURE
PAGE FOLLOWS]
-30-
IN WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the date first above written.
▇▇▇▇▇▇
DRUGS, INC.
By: ____________________________________
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Chief Executive Officer
HSBC BANK
USA, NATIONAL
ASSOCIATION
By: ____________________________________
Name: _______________________________
Title: _______________________________
-31-
EXHIBIT
"A"
FORM OF
INITIAL NOTE
|
No.:
|
|
|
Issue
Date: ,
2008
|
|
|
Principal Amount: $
Number
of Shares Exchanged: ________________
|
▇▇▇▇▇▇
DRUGS, INC.
5%
PARTICIPATING PROMISSORY NOTES DUE 2015
▇▇▇▇▇▇
Drugs, Inc., a New York corporation (the "Company"),
promises to pay to the order of ____________________________________, or
registered assigns, the principal amount of _________ ($________), or such
greater amount as may be payable pursuant to the terms of this Note, on April,
___ 2015 (the "Maturity
Date").
This Note
shall bear interest at the rate of five percent (5%) per
year.
Additional provisions of this Note are set forth
herein.
IN WITNESS WHEREOF,
the Company has caused this instrument to be duly
executed.
▇▇▇▇▇▇
DRUGS, INC.
By:
__________________________________
Name:
_____________________________
Title:
______________________________
Dated:
April ,
2008
Certificate
of Authentication:
HSBC Bank
USA, National Association, as Trustee, certifies that this is one of the Notes
referred to in the within-mentioned Indenture.
By: _________________________________
\ Authorized Signatory
\ Authorized Signatory
i
THE
SECURITIES REPRESENTED BY THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE EFFECT
THAT SUCH REGISTRATION IS NOT REQUIRED.
▇▇▇▇▇▇
DRUGS, INC.
5%
PARTICIPATING PROMISSORY NOTES DUE 2015
This Note
was issued in connection with the exchange by the Holder with the Company of the
number of shares of ▇▇▇▇▇▇ Drugs, Inc. Class A Common Stock $2.50 par
value set forth on the initial page of this Note (the "Shares")
pursuant to the terms of a Joint Exchange Offer dated March 17, 2008 of the
Company and the ▇▇▇▇▇▇ Drugs, Inc. Employee Stock Ownership and 401(k) Plan (the
"Exchange
Offer"); and
This Note
is one of a duly authorized issue of Company's 5% Participating Promissory
Notes described in the Exchange Offer (collectively, the "Notes"), all
issued or to be issued under and pursuant to a trust indenture (the "Indenture"),
dated as of April ___, 2008 by and between the Company and HSBC Bank USA,
National Association, as trustee (the "Trustee"). Reference
is hereby made to the Indenture, and all modifications, amendments and
indentures supplemental thereto relating to the Notes, for a description of the
rights, limitations of rights, obligations, duties, and immunities thereunder of
the Trustee, the Company and the Holders of the Notes and the terms upon which
the Notes are authenticated and delivered. Capitalized terms not
otherwise defined in this Note shall have the meanings assigned to such terms in
the Indenture.
1. Interest.
This Note shall bear interest at the rate of five percent (5%) per annum
from the date hereof or from the most recent Interest Payment Date (as defined
below) to which interest has been paid or duly provided for, as the case may be,
payable quarterly in arrears on July
17, October 17, January 17 and April 17 of each
year (each, an "Interest Payment
Date"), commencing on the next Interest Payment Date after the date
hereof, until the principal hereof is paid or duly made available for payment.
Interest payable on each Interest Payment Date shall equal the amount of
interest accrued for the period commencing on and including the immediately
preceding Interest Payment Date in respect of which interest has been paid or
duly provided for (or commencing on and including the date hereof, if no
interest has been paid or duly provided for) and ending on and including the day
preceding such Interest Payment Date. Interest will cease to accrue on a Note
upon its maturity. Interest on this Note will be computed on the basis of a
360-day year consisting of twelve 30-day months.
2. Method of
Payment.
(a) Except
as provided in the Indenture, the Company shall pay to the Person
who is the Holder of record of this Note, at the close of business
(whether or not a Business Day) on April 17, 2012, a principal payment equal to
the greater of (i) one half the original principal amount of this Note; or (ii)
an amount representing eighty percent (80%) of the Appraised Value of one
half of the number of shares of the Company's Common Stock exchanged with the
Company for this Note.
(b) Except
as provided in the Indenture, the Company shall pay to the Person who is the
Holder of record of this Note, at the close of business (whether or not a
Business Day) on April 17, 2015, a principal payment equal to the greater of (i)
one-half the original principal amount of this Note; or (ii) an amount
representing eighty percent (80%) of the Appraised Value of one half of the
number of shares of the Company's Common Stock exchanged with the Company for
this Note. The number of shares so exchanged are noted on the first
page of this Note. Holders must
ii
surrender
Notes to the Paying Agent and comply with the other terms of the Indenture to
collect the principal amount, plus, if applicable, accrued and unpaid interest
payable as herein provided at the Maturity Date.
(c) Except
as provided in the Indenture, the Company shall pay interest on the this Note to
the Person who is the Holder of record of this Note at the close of business
(whether or not a Business Day) on the July 17, October 17, January 17 and April
17 immediately preceding the applicable Interest Payment Date (each, a "Regular
Record Date").
(d) The Company shall pay, in money of the
United States that at the time of payment is legal tender for payment of public
and private debts, all amounts due in cash with respect to the Notes on the
dates and in the manner provided in this Note and the Indenture; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the Holder's registered address.
3. Paying
Agent and Registrar. The Trustee shall act as Paying Agent
and Registrar.
4. Indenture. The
terms of the Notes include those terms and conditions stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture
(the "Act"). Notwithstanding anything to the contrary herein contained, the
Notes are subject to all such terms and conditions, and Holders are referred to
the Indenture and the Act for a statement of such terms and conditions. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be
controlling.
5. Ranking. The Notes
are general unsecured obligations of the Company.
6. Redemption. Except
as otherwise specifically set forth herein, the Company shall not have the right
to redeem any Notes prior to the Maturity Date.
7. Persons
Deemed Owners. The Holder
of this Note may be treated as the owner of this Note for all purposes, and none
of the Company or the Trustee nor any authorized agent of the Company or the
Trustee shall be affected by any notice to the contrary, except as required by
law.
8. Modification;
Amendment; Waiver. The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Notes under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in the
aggregate principal amount of all outstanding Notes affected thereby (voting
together as a single class). The Indenture also provides that certain amendments
or modifications may not be made without the consent of each Holder to be
affected thereby. Furthermore, provisions in the
iii
Indenture
permit the Holders of a majority in the aggregate principal amount of the
outstanding Notes, in certain instances, to waive, on behalf of all of the
Holders of Notes, certain past defaults under the Indenture and their
consequences. Any such waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and other
Notes issued upon the registration of transfer hereof or in exchange hereof, or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
9. Transfer;
Exchange. The Notes
are in registered form without coupons. A Holder may transfer or exchange Notes
in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the
Indenture.
10. Permitted
Transfers. This
Note is non-negotiable and is not registered under the Securities Act of
1933. The Holder may not pledge, encumber or place a lien on this
Note, and any such pledge, encumbrance or lien shall be null and void and
without legal effect. Notwithstanding the foregoing, this Note may be
transferred without consideration to the Holder's spouse, children or
grandchildren; a trust established by Holder for Holder's benefit or the benefit
of Holder's spouse and/or children and/or grandchildren; a charitable trust that
Holder has established; or a charitable organization qualifying for tax exempt
status under Section 501(c)(3) of the Internal Revenue Code. No other
transfer of this Note will be allowed or recognized.
11. Defaults
and Remedies.
(a) An
Event of Default includes (i) a default in the payment by the Company of accrued
and unpaid interest on the Notes, which has continued for thirty (30) days; (ii)
a default by the Company in the payment of principal of the Notes when due and
payable; (iii) a default by the Company in the performance or breach of any
other covenant or warranty contained in the Notes or the Indenture, continuing
for sixty (60) days after written notice provided to the Company by the Trustee
or by the Holders of twenty-five percent (25%) or more of the aggregate
principal amount of all outstanding Notes; (iv) a default under any Debt by the
Company that results in acceleration of maturity of such Debt, or failure to pay
any such Debt at maturity; or (v) the occurrence of an Act of
Bankruptcy.
(b) If
an Event of Default shall occur and be continuing beyond any applicable cure
period there may be declared due and payable the principal amount (together with
accrued and unpaid interest) on the Notes in the manner and with the effect
provided in the Indenture.
12. Redemption
Upon a Change in Control. Within
sixty (60) days of a Change in Control of the Company, the Company will pay all
accrued but unpaid interest due under the Note plus the principal amount of this
Note equal to the greater of (a) the portion of the principal remaining unpaid
or (b) (i) an amount representing eighty percent (80%) of the Appraised Value of
the shares of the Company's Common Stock exchanged with the Company for this
Note if such Change in Control occurs prior to the payment of the first
scheduled principal payment, or (ii) an amount representing eighty percent (80%)
of the Appraised Value of one-half of the shares of the Company's Common Stock
exchanged with the Company for this Note if such Change in Control occurs
subsequent to the payment of the first scheduled principal
payment. For purposes of a Change in Control, the Appraised Value of
the shares of the Company's Common Stock will be based on the latest appraisal
conducted by the firm retained by the ▇▇▇▇▇▇ Drugs, Inc. Employee Stock
Ownership/401(k) Plan prior to the occurrence of a Change in
Control..
iv
13. Trustee
Dealings with the Company. The
Trustee, in its individual or any other capacity, may become the owner of Notes
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Neither the Trustee nor any
Holder of the Notes will have any voting rights in respect of the Company's
Common Stock.
14. Authentication.
This Note shall not be valid until the Trustee or an authenticating agent signs
the certificate of authentication on the first page of this
Note.
15. Certain
Definitions.
(a) For
purposes of this Note, the "Appraised
Value" shall mean the latest value assigned to the Company's Common Stock
(or if such shares are no longer authorized, the successor class of stock
designated by the Company) by the firm retained by the ▇▇▇▇▇▇ Drugs, Inc.
Employee Stock Ownership and 401(k) Plan for purpose of making periodic
valuations of the Common Stock for such Plan, equitably adjusted for stock
splits, stock dividends and the issuance and redemptions of shares of the
Company's Common Stock following the date of this Note.
(b) For
purposes of this Note, the term "Act of
Bankruptcy" shall mean:
(i) the
Company, pursuant to or within the meaning of any Bankruptcy Law (as defined
below):
(A) commences
a voluntary case or proceeding as a debtor;
(B) consents
to the entry of an order of relief against it in an involuntary case or
proceeding or the commencement of any case against it;
(C) consents
to the appointment of a Receiver (as defined below) of the Company or for all or
substantially all of the property of the Company;
(D) makes
a general assignment for the benefit of its creditors;
(E) files
a petition in bankruptcy or answer or consent seeking reorganization or relief;
or
(F) consents
to the filing of such petition;
(ii) a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law, which order or decree remains unstayed or in effect for sixty (60)
consecutive days, that:
(A) grants
relief against the Company in an involuntary case or proceeding or adjudicates
the Company insolvent or bankrupt;
(B) appoints
a Receiver of the Company or for all or substantially all of the property of the
Company; or
(C) orders
the winding up or liquidation of the Company;
(iii) for
purposes of this definition only:
v
(A) the
term "Bankruptcy
Law" shall mean Title 11 of the United States Code (or any successor
thereto) or any similar federal or state law for the relief of
debtors.
(B) the
term "Receiver" shall mean any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
(c) For
purposes of this Note, the term "Change in
Control" shall mean:
(i) the
acquisition by any "individual", "entity" or "group" (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange
Act")) of "beneficial ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty percent (50%) or more of
either (A) the then outstanding shares of common stock of the Company; or (B)
the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors;
or
(ii) the
Company consolidates with, or merges with or into, another Person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets; provided,
however,
that a transaction pursuant to which the holders of fifty percent
(50%) or more of the total voting power of all shares of the common stock of the
Company entitled to vote generally in the election of directors immediately
prior to such transaction have the entitlement to exercise, directly or
indirectly, fifty percent (50%) or more of the total voting power of all shares
of common stock entitled to vote generally in the election of directors of the
continuing or surviving corporation immediately after such transaction shall not
be a Change in Control.
(d) For
purposes of this Note, the term "Common Stock" shall mean the Company's Class A
Common Stock, par value $2.50 per share.
(e) For
purposes of this Note, the term "Debt" shall mean all obligations of the Company
for borrowed money in an aggregate amount of greater than Fifty Million and
00/100 Dollars ($50,000,000.00).
16. Calculations. Except as
otherwise specifically stated herein or in the Indenture, all calculations to be
made with respect to the Notes shall be the obligation of the Company. All
calculations made by the Company or its agent as contemplated pursuant to the
terms hereof and of the Indenture shall be made in good faith and, absent
manifest error, shall be final and binding on the Company and the Holders. The
Company shall provide a schedule of calculations to the Trustee, and the Trustee
shall be entitled to rely upon the accuracy of the calculations by the Company
without independent verification. The Trustee shall forward calculations made by
the Company to any Holder of Notes upon request within twenty (20) Business Days
of the effective date of any adjustment.
17. No
Recourse against Others. A
director, officer, employee or stockholder, as such, of the Company or the
Trustee, shall not have any liability for any obligations of the Company, or the
Trustee, under the Notes, the Indenture, or for any claim based on, in respect
of or by reason of, such obligations or their creation. Each Holder by accepting
a Note waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Notes.
vi
18. Governing
Law.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
19. Legend. THE
SECURITIES REPRESENTED BY THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE EFFECT
THAT SUCH REGISTRATION IS NOT REQUIRED.
vii
EXHIBIT
"B"
FORM OF
CERTIFICATE OF TRANSFER
▇▇▇▇▇▇
Drugs, Inc.
▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: 5%
Participating Note due 2015
Reference
is hereby made to that certain Trust Indenture dated as of April ___, 2008 (the
"Indenture")
by and between ▇▇▇▇▇▇ Drugs, Inc. (the "Company") and
HSBC Bank USA, National Association (the "Trustee"). Capitalized
terms not otherwise defined herein shall have the meanings assigned to such
terms in the Indenture.
___________________ (the "Transferor")
owns and proposes to transfer the Note(s) annexed hereto, with a face value at
maturity of $________________ (the "Transfer"),
to __________________ (the "Tranferee"). In
connection with the Transfer, the undersigned Transferor hereby certifies that
the Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in the Notes and pursuant to and in
accordance with the Securities Act of 1933, as amended and any applicable
securities law of any state of the United States, and accordingly the Transferor
further certifies that (check
one):
¨ such
Transfer is being effected to the Transferor's spouse, children and/or
grandchildren; or
¨ such
Transfer is being effected to a trust created for the benefit of the
Transferor's spouse, children and/or grandchildren; or
¨ such
Transfer is being effected to a charitable trust created by the Transferor;
or
¨ such
Transfer is being effected to a charitable organization qualifying for tax
exempt status under section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
__________________________________________
[Insert
name of Transferor]
* Signature
guaranteed by:
By:___________________________
* The
signature must be guaranteed by an institution which is a member of one of the
following recognized signature guaranty programs: (i) the Securities Transfer
Agent Medallion Program (STAMP); (ii) the New York Stock Exchange Medallion
Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) such
other guaranty program acceptable to the Trustee.
viii