EXHIBIT T3C
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ENVIROSOURCE, INC.
$63,000,000
14% SUBORDINATED NOTES DUE 2008
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INDENTURE
Dated as of ____________, 2001
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UNITED STATES TRUST COMPANY OF NEW YORK
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Trustee
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE ..........................1
SECTION 1.01. DEFINITIONS . ..................................................1
SECTION 1.02. OTHER DEFINITIONS . ............................................5
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT ..............5
SECTION 1.04. RULES OF CONSTRUCTION...........................................6
ARTICLE 2 THE NOTES .......................................................... 6
SECTION 2.01. FORM AND DATING ................................................6
SECTION 2.02. EXECUTION AND AUTHENTICATION ...................................8
SECTION 2.03. REGISTRAR AND PAYING AGENT......................................8
SECTION 2.04. LISTS OF HOLDERS OF THE NOTES ..................................9
SECTION 2.05. TRANSFER AND EXCHANGE ..........................................9
SECTION 2.06. CERTIFICATED NOTES ............................................12
SECTION 2.07. REPLACEMENT NOTES .............................................13
SECTION 2.08. PAYING AGENT TO HOLD MONEY IN TRUST ...........................13
SECTION 2.09. OUTSTANDING NOTE ..............................................14
SECTION 2.10 TREASURY NOTES ................................................14
SECTION 2.11. TEMPORARY NOTES ...............................................14
SECTION 2.12. CANCELLATION ..................................................15
SECTION 2.13. DEFAULTED INTEREST ............................................15
SECTION 2.14. RECORD DATE ...................................................15
SECTION 2.15. CUSIP NUMBER ..................................................15
ARTICLE 3 REDEMPTION..........................................................16
SECTION 3.01. NOTICES TO TRUSTEE ............................................16
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED .............................16
SECTION 3.03. NOTICE OF REDEMPTION...........................................17
SECT10N 3.04. EFFECT OF NOTICE OF REDEMPTION.................................17
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE....................................17
SECTION 3.06. NOTES REDEEMED IN PART.........................................17
SECTION 3.07. OPTIONAL REDEMPTION............................................18
SECTION 3.08. MANDATORY REDEMPTION...........................................18
ARTICLE 4 COVENANTS ..........................................................18
SECTION 4.01. PAYMENT OF NOTES ..............................................18
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY................................18
SECTION 4.03 REPORTS........................................................19
SECTION 4.04. COMPLIANCE CERTIFICATE.........................................19
SECTION 4.05. STAY EXTENSION AND USURY LAWS..................................20
SECTION 4.06. CORPORATE EXISTENCE ...........................................20
ARTICLE 5 MERGER AND CONSOLIDATION ..........................................20
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS ......................20
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED .............................20
ARTICLE 6 DEFAULTS AND REMEDIES ..............................................21
SECTION 6.01. EVENTS OF DEFAULT .............................................21
SECTION 6.02. ACCELERATION...................................................22
SECTION 6.03. OTHER REMEDIES ................................................22
SECTION 6.04. WAIVER OF PAST DEFAULTS .......................................23
SECTION 6.05. CONTROL BY MAJORITY ...........................................23
SECTION 6.06. LIMITATION ON SUITS ...........................................23
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SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.................24
SECTION 6.08. COLLECTION SUIT BY TRUSTEE....................................24
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM..............................24
SECTION 6.10. PRIORITIES....................................................25
SECTION 6.11. UNDERTAKING FOR COSTS ........................................25
SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES............................25
SECTION 6.14. DELAY OR OMISSION NOT WAIVER..................................26
ARTICLE 7 TRUSTEE.............................................................26
SECTION 7.01. DUTIES OF TRUSTEE.............................................26
SECTION 7.02. RIGHTS OF TRUSTEE.............................................27
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE..................................27
SECTION 7.04. TRUSTEE'S DISCLAIMER..........................................28
SECTION 7.05. NOTICE OF DEFAULTS............................................28
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES....................28
SECTION 7.07. COMPENSATION AND INDEMNITY....................................28
SECTION 7.08. REPLACEMENT OF TRUSTEE........................................29
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC..............................30
SECTION 7.10. ELIGIBILITY: DISQUALIFICATION.................................30
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.............30
ARTICLE 8 SATISFACTION AND DISCHARGE OF INDENTURE.............................31
SECTION 8.01. SATISFACTION AND DISCHARGE.....................................31
SECTION 8.02. APPLICATION OF TRUST MONEY.....................................31
SECTION 8.03. REPAYMENT TO COMPANY...........................................32
SECTION 8.04. REINSTATEMENT..................................................32
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER....................................32
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES............................32
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES...............................33
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT............................34
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS..............................34
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES...............................35
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC................................35
SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES..............................35
ARTICLE 10 SUBORDINATION OF NOTES ............................................36
SECTION 10.01. NOTES SUBORDINATE TO SENIOR, INDEBTEDNESS.....................36
SECTION 10.02. PAYMENT OVER Of PROCEEDS UPON DISSOLUTION, ETC................36
SECTION 10.03. NOTICE TO SENIOR INDEBTNESS UPON ACCELERATION OF NOTE.........37
SECTION 10.04. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT................37
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER...........................38
SECTION 10.06. PAYMENT PERMITTED IF NO DEFAULT...............................38
SECTION 10.07. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS ......39
SECTION 10.08. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS...................39
SECTION 10.09. TRUSTEE TO EFFECTUATE SUBORDINATION PROVISION.................39
SECTION 10.10. NO WAIVER OF SUBORDINATION PROVISIONS ........................39
SECTION 10.11. NOTICE TO TRUSTEE.............................................40
SECTION 10.12. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT........................................................41
SECTION 10.13. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS......41
SECTION 10.14. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS..............................41
SECTION 10.15. ARTICLE APPLICABLE TO PAYING AGENTS...........................41
SECTION 10.16. AUTHORIZATION TO EFFECT SUBORDINATION.........................42
ARTICLE 11 MISCELLANEOUS......................................................42
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SECTION 11.01. TRUST INDENTURE ACT CONTROLS..................................42
SECTION 11.02. NOTICES.......................................................42
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS
OF NOTES......................................................43
SFCTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT............43
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION................ 44
SECTION 11.06. RULES BY TRUSTEE AND AGENTS...................................44
SECTION 11.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS..................................................44
SECTION 11.08. GOVERNING LAW.................................................45
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.................45
SECTION 11.10. SUCCESSORS....................................................45
SECTION 11.11 SEVERABILITY..................................................45
SECTION 11.12. COUNTERPART ORIGINALS.........................................45
SECTION 11.13. OTHER PROVISIONS..............................................45
SECTION 11.14. TABLE OF CONTENTS, HEADINGS, ETC..............................45
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CROSS-REFERENCE TABLE
Trust Indenture Indenture Section
Act Section
310 (a)(1) ........................................ 7.10
(a)(2) ........................................ 7.10
(a)(3) ........................................ N.A.
(a)(4) ........................................ N.A.
(a)(5) ........................................ 7.10
(b) ........................................... 7.10
(c) ........................................... N.A.
311 (a) ........................................... 7.11
(b) ........................................... 7.11
(c) ........................................... N.A.
312 (a) ........................................... 2.04
(b) ........................................... 11.03
(c) ........................................... 11.03
313 (a) ........................................... 7.06
(b)(1) ........................................ N.A.
(b)(2) ........................................ 7.06
(c) ........................................... 7.06; 11.02
(d) ........................................... 7.06
314 (a) ........................................... 4.03; 11.02
(b) ........................................... N.A.
(c)(1) ........................................ 11.04
(c)(2) ........................................ 11.04
(c)(3) ........................................ N.A.
(d) ........................................... N.A.
(e) ........................................... 11.05
(f) ........................................... N.A.
315 (a) ........................................... 7.01
(b) ........................................... 7.05; 11.02
(c) ........................................... 7.01
(d) ........................................... 7.01
(e) ........................................... 6.11
316 (a)(last sentence) ............................ N.A.
(a)(1)(A) ..................................... 6.05
(a)(1)(B) ..................................... 6.04
(a)(2) ........................................ N.A
(b) ........................................... 6.07
(c) ........................................... 2.13
317 (a)(1) ........................................ 6.08
(a)(2) ........................................ 6.09
(b) ........................................... 2.07
318 (a) ........................................... 11.01
(b) ........................................... N.A.
(c) ........................................... 11.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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INDENTURE dated as of 2001 between Envirosource, Inc., a Delaware
corporation (the "Company"), and United States Trust Company of New York, a New
York banking corporation, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the 14% Subordinated
Notes due 2008, (the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" of any specified Person means any other Person. directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar,
"Applicable Procedures" means, with respect to any transfer or exchange of
beneficial interests in a Global Note, the rules and procedures of the
Depositary and the Trustee that apply to such transfer and exchange.
"Board of Directors" means the Board of Directors of the Company, or any
authorized committee of the Board of Directors.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation or any
and all equivalent ownership interests in a Person (other than a corporation).
"Capitalized Lease Obligation" means an obligation under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of Indebtedness represented by such obligation shall be the
capitalized amount of such obligation determined in accordance with such
principles.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 or such other address as to which the Trustee
may give notice to the Company.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Designated Senior Indebtedness" means (1) all Senior Indebtedness under
the New Credit Facility and (h) any other Senior Indebtedness which (a) at the
time of incurrence equals or exceeds $25,000,000 in aggregate principal amount
and (b) is specifically designated by the Company in the instrument evidencing
such Senior Indebtedness as "Designated Senior Indebtedness" for purposes of
this Indenture.
"Exchange Act' means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession,
which are in effect on the date hereof
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"IMS" means International Mill Service, Inc., a Pennsylvania corporation.
"Indebtedness" means, with respect to any Person, (i) the principal of and
any premium and interest on (a) indebtedness of such Person for money borrowed
and (b) indebtedness evidenced by notes, debenture, bonds or other similar
instruments; (ii) all Capitalized Lease Obligations of such Person; (iii) all
obligations of such Person to pay the purchase price of property, all
conditional sale obligations and all obligations under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business); (iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations for letters of credit securing obligations
(other than obligations described in clause (i) through (iii) above) entered
into in the ordinary course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the extent drawn upon, such
drawing is reimbursed no later than the tenth Business Day following receipt by
such Person of a demand for reimbursement following payment on the letter of
credit); (v) all obligations of the type referred to in clauses (i) through (iv)
of other Persons and all dividends of other Persons for the payment of which, in
either case, such Person is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred to in clauses (i)
through (v) above of other Persons secured by any Lien on any property or asset
of such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in The City of New York or at a place of payment are authorized by
law, regulation
2
or executive order to remain closed. if a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
"Lien" means any mortgage, lien, pledge, charge, or other security interest
or encumbrance of any kind.
"New Credit Facility" means that certain Credit Agreement dated as of
__________ 2001, among the Company, IMS, Technologies and ________, and the
various ancillary documents provided for therein, as the same may be amended,
extended, increased, renewed, restated, supplemented or otherwise modified (in
whole or in part, and without limitation as to amount, terms, conditions,
covenants and other provisions) from time to time, and any agreement or
agreements governing Indebtedness incurred to refinance, replace, restructure or
refund such agreements in whole or in part from time to time (whether with the
original agent and lenders or other agents and lenders or otherwise, and whether
provided for under the original New Credit Facility or otherwise).
"Non-payment Default" means, for purposes of Article 10 hereof, any event
(other than a Payment Default) the occurrence of which entitles one or more
Persons to act to accelerate the maturity of any Designated Senior
Indebtedness.
"Notes" means the Notes described in the second paragraph of this indenture
and issued hereunder.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, Controller,
Secretary, any Assistant Secretary or any Vice President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, principal financial officer, treasurer or principal
accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee,
"Payment Default" means any default in the payment when due (whether at
Stated Maturity, upon scheduled repayment, upon acceleration or otherwise) that
occurs and is continuing beyond any applicable grace period of principal of or
premium, if any, or interest on any Senior Indebtedness.
"Person" means any individual corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Representative" means the trustee, agent or other representative for any
Senior Indebtedness or Designated Senior Indebtedness.
3
"Responsible Officer" when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the principal of (and premium, if any),
interest (including interest accruing on or after filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding) on, penalties
and any obligation of the Company for reimbursement, indemnities and fees
relating to Indebtedness outstanding pursuant to the New Credit Facility and any
Indebtedness hereafter incurred, the terms of which (or the terms of the
instrument under which, or pursuant to which it is issued) expressly provide
that such Indebtedness shall be senior in right of payment to the Notes.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the principal of such security is
due and payable, including pursuant to any mandatory redemption provision (but
excluding any provision providing for the repurchase of such security at the
option of the holder thereof upon the happening of any contingency).
"Subordinated Note Custodian" means the Trustee, as custodian for the
Depositary with respect to the Notes in global form, or any successor entity
thereto.
"Subordinated Obligation" means any Indebtedness of the Company which is
contractually subordinate or junior in right of payment to the Notes.
"Subsidiary" means (i) a corporation at least a majority of whose Capital
Stock with voting power, under ordinary circumstances, to elect a majority of
the Board of Directors of such corporation is at the time, directly or
indirectly, owned or controlled by the Company, by a Subsidiary or Subsidiaries
of the Company, or by the Company and a Subsidiary or Subsidiaries of the
Company or (ii) any other Person (other than a corporation) in which the
Company, a Subsidiary or Subsidiaries of the Company, directly or indirectly, at
the date of determination, has at least a majority ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇. 77aaa-77bbbb)
as in effect on the date on which this Indenture is qualified under the TIA,
except as required by Section 9.03 hereof, provided that if the Trust Indenture
Act of 1939 is amended after such date, "Trust Indenture Act" or "TIA" means, if
so required by such amendment, the Trust Indenture Act of 1939, as so amended.
"Technologies" means Envirosource Technologies, Inc.
4
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or redeemable before the maturity thereof.
SECTION 1.02. OTHER DEFINITIONS
Defined in
Term Section
"Authenticating Agent" ................................ 2.02
"Bankruptcy Law" ...................................... 4.01
"Certificated Notes" .................................. 2.01
"Custodian" ........................................... 6.01
"Depositary" .......................................... 2.03
"DTC" ................................................. 2.03
"Event of Default" .................................... 6.01
"Global Note" ......................................... 2.01
"Paying Agent" ........................................ 2.03
"Payment Blockage Notice" ............................. 10.04
"Registrar" ........................................... 2.03
"Successor Corporation" ............................... 5.01
SECTION 1.03. INCORPORATION BY REFERENCE OF 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 used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company and any successor obligor upon the
Notes.
5
All other terms used in this Indenture that are defined by the TIA. defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include the
singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING (a) General. 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. The Notes may have notations, legends or endorsements approved as to
form by the Company and required by law, stock exchange rule, agreements to
which the Company is subject or usage. Each Note shall be dated the date of its
authentication. The Notes shall be issuable only in registered form without
coupons and only in denominations of $1.00 or integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
(b) Global Notes. Notes shall be initially issued in the form of one or
more permanent Global Notes in definitive fully registered form without interest
coupons (the "Global Notes"), which shall be registered in the name of the
Depositary or a nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided, and deposited on behalf of
the Holders of the Notes represented thereby with the Subordinated Note
Custodian.
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate amount
of outstanding Notes from time to time endorsed on Schedule A thereto and that
the aggregate amount of outstanding Notes represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges, redemptions
and transfers of interests. Any endorsement of
6
Schedule A of a G1obal Note to reflect the amount of any increase or decrease
in the amount of outstanding Notes represented thereby shall be made by the
Trustee or the Subordinated Note Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.05 hereof.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(c) Book-Entry Provisions. This Section 2.01(c) shall apply only to Global
Notes deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with this
Section 2.01(c), authenticate and deliver the Global Notes that (i) shall be
registered in the name of the Depositary or the nominee of the Depositary and
(ii) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instructions or held by the Subordinated Note Custodian.
Participants shall have no rights either under this Indenture with respect
to any Global Note held on their behalf by the Depositary or by the Subordinated
Note Custodian as custodian for the Depositary or under such Global Note, and
the Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants, the
operation of customary practices of such Depositary governing the exercise of
the rights of an owner of a beneficial interest in any Global Note.
(d) Certificated Notes. Notes issued in Certificated form shall be
substantially in the form of Exhibit A attached hereto (but without including
the text referred to in footnotes 1, 2 and 3 thereto) ("Certificated Notes") and
shal1 be printed, typewritten, lithographed or engraved or produced by any
combination of these methods or may be produced by any other method permitted by
the rules of any securities exchange on which the Notes may be listed, as
evidenced by the execution of such Notes.
(e) Provisions Applicable to Forms of Notes. The Notes may also have such
additional provisions, omissions, variations or substitutions as are not
inconsistent with the provisions of this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with this Indenture, any applicable law or
with any rules made pursuant thereto or with the rules of any securities
exchange or governmental agency or as may be determined consistently herewith by
the Officers of the Company executing such Notes, as conclusively evidenced by
their execution of such Notes. All Notes will be otherwise substantially
identical except as provided herein.
7
Subject to the provisions of this Article 2. a Holder of a Global Note may
grant proxies and otherwise authorize any Person to take any action that a
Holder is entitled to take under this Indenture or the Notes.
SECTION 2.02. EXECUTION AND AUTHENTICATION. An Officer of the Company shall
sign the Notes for the Company by manual or facsimile signature. The Company's
seal shall be reproduced on the Notes.
If an Officer whose signature is on a Note no longer holds that office at
the time the Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee or the Authenticating Agent. The signature of the Trustee shall be
conclusive evidence that the Note has been authenticated under this Indenture,
The Trustee or the Authenticating Agent shall, upon a written order of the
Company signed by two Officers of the Company, authenticate Notes for original
issue up to an aggregate principal amount stated in paragraph 4 of the Notes.
The aggregate principal amount of Notes outstanding at any time shall not exceed
the amount set forth herein except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes (the "Authenticating Agent"). Unless limited by the terms
of such appointment, 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 has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT. The Company shall maintain (i) an
office or agency where Notes may be presented for registration of transfer or
for exchange (including any co-registars, the "Registrar") and (ii) an office or
agency where Notes may be presented for payment ("Paying Agent"). The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any 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 notify the Holders of the Notes of the name and address of any
Agent not a party to this Indenture. The Company or any of its Subsidiaries 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, which
shall incorporate the provisions of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any 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, and shall be entitled to appropriate compensation in
accordance with Section 7.07 hereof.
8
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee (at the Corporate
Trust Office of the Trustee) to act as the Registrar and Paying Agent and to act
as Subordinated Note Custodian with respect to the Global Notes.
SECTION 2.04. LISTS 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 Holders of the Notes and
shall otherwise comply with TIA ss. 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee at least seven 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 Holders of the Notes, including the
aggregate principal amount of the Notes held by each thereof, and the Company
shall otherwise comply with TIA ss. 312(a).
SECTION 2.05. TRANSFER AND EXCHANGE. (a) Transfer and Exchange
of Certificated Notes. When Certificated Notes are presented to the Registrar
with a request:
(i) to register the transfer of such Certificated Notes; or
(ii) to exchange such Certificated Notes for an equal
principal amount of Certificated Notes or other authorized
denominations, the Registrar shall register the transfer or
make the exchange as requested if its reasonable requirements
for such transaction are met; provided, however, that the
Certificated Notes surrendered for transfer or exchange shall
be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and
the Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
(b) Restrictions on Transfer of a Certificated Note for a Beneficial
Interest in a Global Note. A Certificated Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Certificated
Note, duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, together with written
instructions directing the Trustee to make, or to direct the Subordinated Note
Custodian to make, an adjustment on its books and records with respect to such
Global Note to reflect an increase in the aggregate principal amount of the
Notes represented by the Global Note, such instructions to contain information
regarding the Depository account to be credited with such increase, then the
Trustee shall cancel such Certificated Note and cause, or direct the
Subordinated Note Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Subordinated
Note Custodian, the aggregate principal amount of the Notes represented by the
Global Note to be increased by the aggregate principal amount of the
Certificated Note to be exchanged and shall credit or cause to be credited to
the account of the Person specified in such instructions a beneficial interest
in the Global Note equal to the
9
principal amount of the Certificated Note canceled. If no Global Notes are then
outstanding and the Global Note has not been previously exchanged for
Certificated securities pursuant to Section 2.06, the Company shall issue and
the Trustee shall authenticate, upon written order of the Company in the form of
an Officers' Certificate, a new Global Note in the appropriate principal
amount.
(c) Transfer and Exchange of Global Notes. (i) The transfer and
exchange of Global Notes or beneficial interests in Global Notes shall be
effected through the Depository, in accordance with this Indenture (including
any applicable restrictions on transfer set forth herein, if any) and the
procedures of the Depository and the Applicable Procedures or other procedures
of the Depository therefor. A transferor of a beneficial interest in a Global
Note shall deliver a written order given in accordance with the Depository's
procedures containing information regarding the participant account of the
Depository to be credited with a beneficial interest in such Global Note or
another Global Note and such account shall be credited in accordance with such
order with a beneficial interest in the applicable Global Note and the account
of the Person making the transfer shall be debited by an amount equal to the
beneficial interest in the Global Note being transferred.
(ii) If the proposed transfer is a transfer of a beneficial interest in
one Global Note to a beneficial interest in another Global Note, the Registrar
shall reflect on its books and records the date and an increase in the principal
amount of the Global Note to which such interest is being transferred in an
amount equal to the principal amount of the interest to be so transferred, and
the Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Note from which such
interest is being transferred. Any beneficial interest in one Global Note that
is transferred to a Person who takes delivery in the form of an interest in
another Global Note will upon transfer, cease to be an interest in that Global
Note and become an interest in the Global Note to which the beneficial interest
is transferred and will thereafter be subject to all transfer restrictions, if
any, and other procedures applicable to beneficial interests in the Global Note
to which the beneficial interest is transferred for as long as it remains an
interest in that Global Note.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository
or a nominee of such successor Depository. Any Holder of a beneficial interest
in a Global Note shall, by acceptance of such Global Note, agree that transfers
of beneficial interests in such Global Note may be effected only through a book
entry system maintained by the Holder of such Global Note (or its agent), and
that ownership of a beneficial interest in the Notes represented hereby shall be
required to be reflected in book entry form. Interests of beneficial owners in a
Global Note may be transferred in accordance with the rules and procedures of
the Depository (or its successors).
(e) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in Global Notes of a series have been exchanged for
Certificated Notes, redeemed, repurchased or cancelled, all Global Notes of such
series shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.12 hereof. At any time prior to such
10
cancellation, if any beneficial interest in a Global Note is exchanged for
Certificated Notes, redeemed, repurchased or cancelled, the principal amount of
Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note, by the Trustee or the
Subordinated Note Custodian, at the direction of the Trustee, to reflect such
reduction.
(f) General Provisions Relating to Transfers and Exchanges. When Notes
are presented to the Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Notes of other denominations, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions arc met; provided, however, that any Note presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar and the Trustee duly executed by the Holder thereof or by his attorney
duly authorized in writing. To permit registrations of transfer and exchanges,
the Company shall issue and the Trustee shall authenticate Notes at the
Registrar's request, subject to such rules as the Trustee may reasonably
require.
Neither the Company nor the Registrar shall be required to
issue, register the transfer of or exchange (i) any Note for a period beginning
at the opening of business 15 days before any repurchase of Notes permitted by
this Indenture and ending at the close of business on the day of repurchase,
(ii) any Note 15 days before the day of any selection of Notes for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part or (iii) any Note between a record date and the next succeeding Interest
Payment Date.
No service charge shall be made to any Holder of a Note for
any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than such transfer tax or similar governmental charge payable
upon exchanges pursuant to Sections 2.10, 3.06 or 9.05 hereof, which shall be
paid by the Company).
Prior to due presentment for registration of transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of, premium, if any, and interest on
such Note and for all other purposes whatsoever, whether or not such Note is
overdue, and neither the Trustee, any Agent nor the Company shall be affected by
notice to the contrary.
All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled to
the same benefits under this Indenture as the Notes surrendered upon such
transfer or exchange.
Each Holder of the Notes agrees to indemnify the Company and
the Trustee against any liability that may result from the transfer, exchange,
or assignment of such ▇▇▇▇▇▇'s Notes in violation of any provision of the
Indenture or applicable United States Federal, or State securities law.
11
(g) No Obligation of the Trustee. (1) The Trustee shall have
no responsibility or obligation to any beneficial owner of a Global Note, a
member of, or a participant, in the Depository or any other Person with respect
to the accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Notes or with respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depository) of any notice (including any
notice of redemption or repurchase) or the payment of any amount, under or with
respect to such Notes. All notices and communications to be given to the Holders
and all payments to be made to Holders under the Notes shall be given or made
only to the registered Holders (which shall be the Depository or its nominee in
the case of a Global Note). The rights of beneficial owners in any Global Note
shall be exercised only through the Depository subject to the applicable rules
and procedures of the Depository. The Trustee may rely and shall be fully
protected in conclusively relying upon information furnished by the Depository
with respect to its members, participants and any beneficial owners.
(2) 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 (including any transfers between or among Depository participants,
members or beneficial owners in any Global 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 2.06. CERTIFICATED NOTES. (a) Global Note deposited
with the Depository or with the Trustee as Subordinated Note Custodian pursuant
to Section 2.02 shall be transferred to the beneficial owners thereof in the
form of Certificated Notes in an aggregate principal amount equal to the
principal amount of such Global Note, in exchange for such Global Note, only if
such transfer complies with Section 2.05 and (i) the Company notifies the
Trustee in writing that the Depository is no longer willing or able to act as a
depositary for the Notes or the Depositary ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depositary is not appointed
by the Company within 90 days of such notice of cessation, (ii) the Company, at
its option notifies the Trustee in writing that it elects to cause the issuance
of Certificated Notes under this Indenture, or (iii) upon the occurrence and
continuation of an Event of Default.
(b) Any Global Note that is transferable to the beneficial
owners thereof pursuant to this Section 2.06 shall be surrendered by the
Depository to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Note, an equal aggregate principal
amount of Certificated Notes of authorized denominations. Any portion of a
Global Note transferred pursuant to this Section 2.06 shall be executed,
authenticated and delivered only in denominations of $1.00 of principal amount
and any integral multiple thereof and registered in such names as the Depository
shall direct.
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SECTION 2.07. REPLACEMENT NOTES. If any mutilated Note is
surrendered to the Trustee, or the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon the written order of the Company signed by two
Officers of the Company, shall authenticate a replacement Note if the Trustee's
requirements for replacements of Notes are met. If required by the Trustee or
the Company, an indemnity bond must be supplied by the Holder that is sufficient
in the judgment of the Trustee and the Company to protect the Company, the
Trustee, any Agent or any Authenticating Agent from any loss which any of them
may suffer if a Note is replaced. Each of the Company and the Trustee may charge
for its expenses in replacing a Note.
The Company shall not be required to issue a replacement Note
for (i) any Note for a period beginning at the opening of business 15 days
before the repurchase of Notes permitted by this Indenture and ending at the
close of business on the day of such repurchase, (ii) any Note 15 days before
the day of any selection of Notes for redemption in whole or in part, except the
unredeemed portion of any note being redeemed in part or (iii) any Note between
a record date and the next succeeding Interest Payment Date.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder. The provisions
of this Section 2.07 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement of mutilated,
destroyed, lost or stolen Notes.
SECTION 2.08. PAYING AGENT TO HOLD MONEY IN TRUST. 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 of the Notes
or the Trustee all money held by the Paying Agent for the payment of principal
of, premium, if any, 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 and to account
for any funds disbursed. Upon payment over to the Trustee, the Paying Agent (if
other than the Company or a Subsidiary) shall have no further liability for the
money delivered to the Trustee. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders of the Notes all money held by it as Paying Agent.
Notwithstanding any provision herein to the contrary, an
installment (including, without limitation, any redemption or repurchase of
Notes pursuant to this Indenture) of principal or interest on any Note shall be
considered paid on the date due if the Trustee or Paying Agent (other than the
Company or any Subsidiary or Affiliate of the Company) holds on that date money
in immediately available funds designated for and sufficient to pay the
installment, provided that the Trustee or Paying Agent is not legally prohibited
from making any payment of such installment on such Notes.
13
SECTION 2.09. OUTSTANDING NOTES. The Notes outstanding at any
time are all the Notes authenticated by the Trustee except for those cancelled
by it, those delivered to it for cancellation and those described in this
Section as not outstanding.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
Subject to Section 2.10 hereof, a Note does not cease to be
outstanding because the Company, a Subsidiary of the Company or an Affiliate of
the Company holds the Note.
SECTION 2.10. 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 (and in the case of a
direction pursuant to Section 6.05 or a consent for a waiver of any past default
and its consequences, Notes owned by any Subsidiary of the Company or any
Affiliate of the Company) shall be considered as though not outstanding, except
that for purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which a Responsible
Officer knows to be so owned shall be so considered. The Company shall notify
the Trustee, in writing, when it or any of its Subsidiaries repurchases or
otherwise acquires Notes and of the aggregate principal amount so repurchased or
acquired. Notwithstanding the foregoing, Notes that are to be acquired by the
Company, any Subsidiary of the Company or an Affiliate of the Company pursuant
to an exchange offer, tender offer or other agreement shall not be deemed to be
owned by the Company, such Subsidiary of the Company or an Affiliate of the
Company until legal title to such Notes passes to the Company, such Subsidiary
or Affiliate, as the case may be.
SECTION 2.11. TEMPORARY NOTES. Until definitive Notes are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company and the Trustee
consider appropriate for temporary Notes. Without unreasonable delay, the
Company shall prepare and the Trustee, upon receipt of the written order of the
Company signed by two Officers of the Company, shall authenticate definitive
Notes in exchange for temporary Notes. Until such exchange, temporary Notes
shall be entitled to the same rights, benefits and privileges as definitive
Notes.
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SECTION 2.12. CANCELLATION. The Company at any time may
deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent
shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Notes (subject to the record retention requirement of
the Exchange Act), unless the Company directs them to be returned to it. The
Company may not issue new Notes to replace Notes that it has redeemed or paid
or that have been delivered to the Trustee for cancellation. All cancelled Notes
held by the Trustee shall be destroyed and certification of their destruction
delivered to the Company, unless by a written order, signed by two Officers of
the Company, the Company shall direct that cancelled Notes be returned to it.
SECTION 2.13. DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Notes and if such interest payment is not made within
the grace period provided by Section 6.01 (a), it shall pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on
the defaulted interest, to the Persons who are Holders of the Notes on a
subsequent special record date, which date shall be at the earliest practicable
date but in all events at least five Business Days prior to the payment date, in
each case at the rate provided in the Notes and in Section 4.01 hereof. The
Company shall, with the consent of the Trustee, fix or cause to be fixed each
such special record date and payment date. At least 15 days before the special
record date, the Company (or the Trustee if requested in writing by the Company,
in the name of and at the expense of the Company) shall mail to Holders of the
Notes a notice that states the special record date, the related payment date and
the amount of such interest to be paid. Any interest which is paid prior to the
expiration of the grace period provided in Section 6.01(a) hereof shall be paid
to Holders of the Notes as of the regular record date for the Interest Payment
Date for which interest has not been paid. Notwithstanding the foregoing, the
Company may make payment of any defaulted interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange.
SECTION 2.14. RECORD DATE. The record date for purposes of
determining the identity of Holders of the Notes entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture shall
be determined as provided for in TIA ss. 316(c).
SECTION 2.15. CUSIP NUMBER. The Company in issuing the Notes
may use a "CUSIP" number and, if it does so, the Trustee shall use the CUSIP
number in notices of redemption or exchange as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the
Notes and that reliance may be placed only on the other identification numbers
printed on the Notes. The Company will promptly notify the Trustee of any change
in the CUSIP number.
15
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE. If the Company elects to
redeem Notes pursuant to the optional redemption provisions of Section 3.07
hereof, it shall furnish to the Trustee, at least 45 days but not more than 60
days before a redemption date (or such shorter period as may be agreed to by the
Trustee in writing), an Officers' Certificate setting forth (i) the Section of
this Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption
price.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED. If less than
all of the Notes are to be redeemed, the Trustee shall select the Notes to be
redeemed among the Holders of the Notes on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate (and
in such manner as complies with applicable legal and stock exchange
requirements, if any), provided that no Notes of $1,000 or less shall be
redeemed in part. In the event of partial redemption by lot, the particular
Notes to be redeemed shall be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the redemption date by the Trustee
from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of them selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not
more than 60 days before a redemption date, the Company shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued;
(d) the name and address of the Paying Agent;
16
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in or is otherwise
prohibited from making such redemption payment, interest on Notes called
for redemption ceases to accrue on and after the redemption date and the
only remaining right of the Holder is to receive payment of the redemption
price upon surrender to the Paying Agent of the Notes to be redeemed;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 35 days but not more than
60 days prior to the redemption date (or such shorter period as may be agreed to
by the Trustee in writing), an Officers' Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph. In any case, failure to give such
notice or any defect in the notice to the Holder of any Note shall not affect
the validity of the proceeding for the redemption of any other Note.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become due and payable on the redemption date at the redemption
price.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. On or prior to the
redemption date, the Company shall deposit with the Trustee or with the Paying
Agent money in immediately available funds sufficient to pay the redemption
price of and accrued interest on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Notes to be redeemed.
On and after the redemption date, interest shall cease to
accrue on the Notes or the portions of Notes called for redemption. If a Note is
redeemed an or after an interest record date but on or prior to the related
Interest Payment Date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Note was registered at the close of business on such
record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph or the Company or the Trustee is otherwise prohibited
from making such payment, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.
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SECTION 3.06. NOTES REDEEMED IN PART. Upon surrender of a
Note that is redeemed in part, the Company shall issue and the Trustee shall
authenticate for the Holder of the Notes at the expense of the Company a new
Note equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 3.07. OPTIONAL REDEMPTION. The Company may redeem the
Notes at any time as a whole, or from time to time in part, at 100% of the
principal amount, plus accrued and unpaid interest to the redemption date.
SECTION 3.08. MANDATORY REDEMPTION. The Company shall not be
required to make mandatory redemption payments with respect to the Notes. There
are no sinking fund payments with respect to the Notes.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. The Company shall pay or cause
to be paid the principal of, premium, if any, and interest on the Notes on the
dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Trustee or the Paying
Agent, if other than the Company, holds on the due date money deposited by the
Company in immediately available funds designated for and sufficient to pay all
principal, premium, if any, and interest then due unless such payment is
prohibited by Article 10. The Trustee or such Paying Agent shall return to the
Company, no later than five days following the date of payment, any money
(including accrued interest) that exceeds such amount of principal, premium, if
any, and interest paid on the Notes.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to the applicable interest rate on the Notes to the extent lawful; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
The term "Bankruptcy Law" means title 11, U.S. Code or any
similar federal or state law for the relief of debtors.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. The Company
shall maintain in the Borough of Manhattan, The City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
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The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
SECTION 4.03. REPORTS. (a) So long as any of the Notes remain
outstanding, the Company shall cause copies of all quarterly and annual
financial reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act to be filed with the Trustee
and mailed to the Holders at their addresses appearing in the register of Notes
maintained by the Registrar, in each case, within 15 days of filing with the
SEC. The Company shall also comply with the provisions of TIA ss. 314(a).
(b) The Company shall provide the Trustee with a
sufficient number of copies of all reports and other documents and information
that the Trustee may be required to deliver to the Holders of the Notes under
this Section 4.03.
SECTION 4.04. COMPLIANCE CERTIFICATE. (a) The Company shall
deliver to the Trustee, within 120 days after the end of each fiscal year, an
Officers' Certificate stating that a review of the activities of the Company and
its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether each has
kept, observed, performed and fulfilled its obligations under this Indenture,
and further stating, as to each such Officer signing such certificates, that to
the best of his or her knowledge each entity has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action each is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action each is taking or
proposes to take with respect thereto.
(b) The Company shall, so long as any of the Notes
are outstanding, deliver to the Trustee promptly upon any Officer becoming aware
of (and in no event later than 30 days after the occurrence of) any Default or
Event of Default, an Officers' Certificate specifying such Default, Event of
Default or default and acceleration and what action the Company is taking or
proposes to take with respect thereto.
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SECTION 4.05. 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 wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Indenture, and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
SECTION 4.06. CORPORATE EXISTENCE. Subject to Article 5
hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate existence, and the
corporate, partnership or other existence of any Subsidiary, in accordance with
the respective organizational documents (as the same may be amended from time to
time) of the Company or any such Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any of its Subsidiaries if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders of the Notes.
ARTICLE 5
MERGER AND CONSOLIDATION
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS. The
Company shall not consolidate with or merge with or into any other corporation
or transfer all or substantially all of its properties and assets as an entirety
to any Person unless the Company shall be the continuing Person, or the Person
(if other than the Company) formed by such consolidation or into which the
Company is merged or to which the properties and assets of the Company as an
entirety are transferred (the "Successor Corporation"), shall be a Person
organized and existing under the laws of the United States or any state thereof
or the District of Columbia and shall expressly assume, by an indenture
supplemental to the Indenture, executed and delivered to the Trustee, in form
and substance reasonably satisfactory to the Trustee, all the obligations of the
Company under the Indenture and the Notes.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any such
assumption by the Successor Corporation, the Successor Corporation shall succeed
to and be substituted for the Company, under this Indenture and the Notes, and
the Company shall thereupon be released from all obligations under this
Indenture and under the Notes and the Company as the predecessor corporation may
thereupon or at any time thereafter be dissolved,
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wound up or liquidated. The Successor Corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, all
or any of the Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and upon the order of the
Successor Corporation instead of the Company and subject to all the terms,
conditions and limitations prescribed in the Indenture, the Trustee shall
authenticate and shall deliver any new Notes which the Successor Corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Notes so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Notes theretofore or thereafter issued
in accordance with the terms of this Indenture as though all such Notes had been
issued at the date of the execution hereof.
In the case of any such consolidation, merger or transfer,
such changes in form (but not in substance) may be made in the Notes thereafter
to be issued as may be appropriate.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs
if:
(a) the Company defaults in the payment of interest
on any Note when the same become due and payable and such default continues for
a period of 30 days;
(b) the Company defaults in the payment of principal
of any Note when the same becomes due and payable at maturity or otherwise or
fails to redeem or purchase Notes when required pursuant to this Indenture or
the Notes;
(c) the Company fails to comply with any of its other
covenants or agreements in the Notes or this Indenture and the default continues
for 60 days after there has been given, by registered or certified mail to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least a majority in aggregate principal amount of the outstanding Notes a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
(d) the Company pursuant to or within the meaning of
Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for
relief against it in an involuntary case;
(iii) consents to the appointment of a
Custodian of it or for all or substantially all of
its property;
(iv) makes a general assignment for the
benefit of its creditors;
(v) generally is not paying its debts as
they become due;
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(vi) admits in writing its inability to
generally pay its debts as such debts become due; or
(e) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(i) is for relief against the Company in an
involuntary case;
(ii) appoints a Custodian of the Company for
all or substantially all of the property of the
Company; or
(iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60
consecutive days.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Any notice of Default given by the Trustee or Noteholders
under this Section must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
Subject to the provisions of Sections 6.01 and 6.02, the
Trustee shall not be charged with knowledge of any Event of Default except any
Event of Default occurring pursuant to Section 6.01(b), unless written notice
thereof shall have been given to the Trustee by the Company, the Paying Agent,
any Holder or an agent of any Holder.
SECTION 6.02. ACCELERATION. If an Event of Default (other than
an Event of Default specified in clause (d) or (e) of Section 6.01) occurs and
is continuing, the Trustee by notice to the Company, or the Holders of not less
than a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Company and the Trustee, may declare the unpaid principal
of, premium, if any, and any accrued and unpaid interest on all the Notes to be
due and payable immediately. Upon such declaration the principal, premium, if
any, and interest shall be due and payable immediately. If an Event of Default
specified in clause (d) or (e) of Section 6.01 occurs, such an amount shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder. The Holders of a majority in
aggregate principal amount of the then outstanding Notes by written notice to
the Trustee may on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of the acceleration) have been cured
or waived.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal, premium, if any, and interest on the Notes or to enforce
the performance of any provision of the Notes or this Indenture.
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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 of a Note 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. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of not less
than a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Trustee may on behalf of the Holders of all of the Notes
waive an existing Default or Event of Default and its consequences, except a
continuing Default or Event of Default in the payment of the principal of,
premium, if any, or interest on, the Notes. Upon any such waiver, such Default
shall be cured and cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority
in aggregate principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with the
law or this Indenture that the Trustee, in its sole discretion, determines may
be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability or the Trustee determines that it does
not have adequate indemnification against any loss or expense; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.06. LIMITATION ON SUITS. A Holder of a Note may
pursue a remedy with respect to this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount
of the then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Note or Holders of Notes offer
and, if requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a
majority in aggregate principal amount of the then outstanding Notes do not give
the Trustee a direction which, in the opinion of the Trustee, is inconsistent
with the request.
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A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Note to receive payment of principal, premium, if any, and interest on the
Note, on or after the respective due dates expressed in the Note, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of the Holder of the Note.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of
Default specified in Section 6.01(a) or (b) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of principal of, premium,
if any, and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest 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 and any other amounts due the Trustee pursuant to the
provisions of Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee
is authorized to 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 of the Notes allowed in
any judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding
is hereby authorized by each Holder of a Note 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 of the Notes, 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 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out
of the estate in any such proceeding, 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 properties which the
Holders of the Notes may be entitled to receive in such proceeding 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 accept or adopt on behalf of any Holder of a Note any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder of a Note thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder of a Note in any such proceeding.
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SECTION 6.10. PRIORITIES. If the Trustee collects any money
pursuant to this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest,
respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes.
SECTION 6.11. UNDERTAKING 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 a 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, 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 does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a
suit by Holders of more than 10% in principal amount of the then outstanding
Notes.
SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES. If the
Trustee or any Holder of Notes has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding has been instituted.
SECTION 6.13. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided in Section 2.07 hereof, no right or remedy conferred herein,
upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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SECTION 6.14. DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6, or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the duties of the Trustee shall be
determined solely by the express provisions of this
Indenture and the Trustee need perform only those
duties that are specifically set forth in this
Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against
the Trustee, and
(ii) in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to
the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions
to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect
of paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with
respect to any action it takes or omits to take in
good faith in, accordance with a direction received
by it pursuant to Section 6.05 hereof
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(d) Whether or not therein expressly so provided,
every provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders of Notes, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on
any money 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 TRUSTEE. (a) The Trustee may
conclusively rely upon any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of Counsel or both, which
shall conform to Section 11.05 hereof. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from liability in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or negligence of any
agent appointed 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 conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. 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 any Affiliate of the Company with the
same rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the SEC for permission to continue as trustee or resign. Any
Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11 hereof.
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SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes or any money paid to the Company or upon the
Company's direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default or Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to Holders of Notes a notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a Default or Event of
Default in payment of principal of, premium, if any, or interest on any Note,
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after the reporting date stated in Section 11.13, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA ss. 313(a) (but if no event described in TIA
ss. 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also shall comply with TIA
ss. 313(b)(2). The Trustee shall also transmit by mail all reports as required
by TIA ss. 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the SEC and each
stock exchange, if any, on which the Notes are listed. The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall
pay to the Trustee from time to time reasonable compensation for its acceptance
of this Indenture and services hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against any and all losses, liabilities or expenses (including
reasonable attorneys' fees) incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, except as
set forth below. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder except to the extent
such failure shall have prejudiced the Company. The Company shall defend the
claim and the Trustee shall cooperate in the defense. If the Trustee is advised
by counsel that it may have available to it defenses which are
28
in conflict with defenses available to the Company, then the Trustee may have
separate counsel, and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture and the resignation or
removal of the Trustee.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through its own
negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01 (d) or (e) hereof occurs, the
expenses and the compensation for the services (including the reasonable fees
and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. A resignation or removal
of the Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in this
Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The Holder
of Notes of a majority in aggregate principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10
hereof;
(b) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to the Trustee under
any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
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. Within one year after the successor Trustee takes office, the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
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If a successor ▇▇▇▇▇▇▇ does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee after written request by any Holder of a Note
who has been a Holder of a Note for at least six months fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY: DISQUALIFICATION. There shall at
all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America or of any state
thereof authorized under such laws to exercise corporate trustee power, shall be
subject to supervision or examination by federal or state authority and shall
have a combined capital and surplus of at least $100 million as set forth in its
most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b); provided, however, that there shall be excluded from the operation
of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
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ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. SATISFACTION AND DISCHARGE. This Indenture shall upon the
request of the Company cease to be of further effect (except as to surviving
rights of registration of transfer, substitution or exchange of Notes herein
expressly provided for, the Company's obligations under Sections 7.07 and 8.04
hereof, the Company's rights of optional redemption under Article 3 hereof, and
the Company's, the Trustee's and the Paying Agent's obligations under Section
8.03 hereof) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when:
(1) either
(i) all outstanding Notes 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, will become due and payable
within one year or are to be called for redemption within one year
under irrevocable arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name and at the
expense of the Company, and the Company has irrevocably deposited or
caused to be deposited with the Trustee funds in an amount sufficient
to pay and discharge the entire debt on the Notes not theretofore
delivered to the Trustee, for cancellation, for principal of and
interest to the date of deposit, date of maturity or date of
redemption;
(2) the Company has paid or caused to be paid all sums then due and payable
by the Company under this Indenture; and
(3) the Company has delivered an Officers' Certificate and an Opinion of
Counsel relating to compliance with the conditions set forth in this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, the
Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.11, 7.07,
7.08, 8.02, 8.03 and 8.04, and the Trustee's and Paying Agent's obligations in
Section 8.03 shall survive until the Notes are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.07, 8.03 and 8.04 and
the Trustee's and Paying Agent's obligations in Section 8.03 shall survive.
SECTION 8.02. APPLICATION OF TRUST MONEY. Subject to Section 8.04 of this
Indenture, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 8.01 of this
Indenture and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of
principal of and interest on the Notes. The Trustee shall be under no obligation
to invest such money or U.S. Government Obligations except as it may agree with
the Company.
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In order to have money available on a payment date to pay principal (and
premium, if any, on) or interest on the Notes, the U.S. Government Obligations
shall be payable as to principal or interest at least one Business Day before
such payment date in such amounts as will provide the necessary money. U.S.
Government Obligations shall not be callable at the Company's option.
SECTION 8.03. REPAYMENT TO COMPANY. Subject to Section 7.07 of this
Indenture, the Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money held by them at any time and thereupon shall be
relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years;
provided, however, that the Company shall, if requested by the Trustee or the
Paying Agent, give the Trustee or such Paying Agent indemnification reasonably
satisfactory to it against any and all liability which may be incurred by it by
reason of such paying, and provided, further, that the Trustee or such Paying
Agent before being required to make any payment may cause to be published at the
expense of the Company once in a newspaper of general circulation in The City of
New York or mail to each Holder entitled to such money at such ▇▇▇▇▇▇'s address
as set forth in the register of Notes notice that such money remains unclaimed
and that after a date specified therein (which shall be at least 30 days from
the date of such Publication or mailing) any unclaimed balance of such money
then remaining will be repaid to the Company. After payment to the Company,
Holders entitled to such money must look to the Company for payment as general
creditors unless an applicable law designates another person, and all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
SECTION 8.04. REINSTATEMENT. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 8.01
of this Indenture, 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, 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 of this Indenture, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with Section 8.01 of this Indenture;
provided that, if the Company has made any payment of 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 such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES. Notwithstanding Section
9.02 of this Indenture, the Company and the Trustee may amend or supplement
this Indenture or the Notes without the consent of any Holder of a Note:
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(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
Certificated Notes or to alter the provisions of Article 2 hereof (including the
related definitions) in a manner that does not materially adversely affect any
Holder;
(c) to provide for the assumption of the Company's obligations to the
Holders of the Notes in the case of a merger or consolidation pursuant to
Article 5 hereof;
(d) to provide for the acceptance of or the appointment of a successor
trustee;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(f) to make any other change that would provide any additional rights
or benefits to the Holders of the Notes or that does not materially adversely
affect the legal rights hereunder of any Holder of the Notes;
(g) to add additional Events of Default; or
(h) to secure the Notes.
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
9.06 hereof, the Trustee shall join with the Company in the execution of any
amended or 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 may but shall not be obligated to
enter into such amended or supplemental Indenture which affects its own rights,
duties or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES. The Company and the Trustee
may amend or supplement this Indenture or the Notes or any amended or
supplemental Indenture with the written consent of the Holders of Notes of not
less than a majority in aggregate principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for the Notes), and any existing Default and its consequences or compliance with
any provision of this Indenture or the Notes may be waived with the consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for the Notes).
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 9.06 hereof, the Trustee shall
join with the Company in the execution of such amended or
33
supplemental Indenture unless such amended or supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its sole discretion, but shall not be obligated
to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes 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 amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Notes. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a non-consenting
Holder of Notes):
(a) reduce the principal amount of Notes whose Holders must consent to
an amendment or supplement;
(b) reduce the principal of or change the Stated Maturity of any Note
or change the time at which any Note may or shall be redeemed,
(c) reduce the rate of or change the time for payment of interest on
any Note;
(d) waive a Default or Event of Default in the payment of principal
of, premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes and a waiver of the payment
default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of or interest on the Notes;
(g) waive a redemption payment with respect to any Note; or
(h) make any change in the foregoing amendment and waiver provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment or
supplement to this Indenture or the Notes shall be set forth in a amended or
supplemental Indenture that complies with the TIA as then in effect.
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SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note is
a continuing consent by the Holder of a Note and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
▇▇▇▇▇▇'s Note, even if notation of the consent is not made on any Note. However,
any such Holder of a Note or subsequent Holder of a Note may revoke the consent
as to its Note if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder of a Note.
The Company may fix a record date for determining which Holders of the
Notes must consent to such amendment, supplement or waiver. If the Company fixes
a record date, the record date shall be fixed at (i) the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of Notes furnished to the Trustee prior to such solicitation pursuant to
Section 2.04 or (ii) such other date as the Company shall designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES. The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall authenticate new Notes that reflect the amendment, supplement
or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall sign any
amended or supplemental Indenture authorized pursuant to this Article 9 if the
amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If such amendment or supplement
adversely affects the rights, duties, liabilities or immunities of the Trustee,
the Trustee may, but need not, sign it. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that any waiver, amendment or supplement is
authorized by this Article 9. The Company may not sign an amendment or
supplemental 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. After a
supplemental indenture becomes effective, the Company shall mail to Holders a
notice briefly describing such amendment. The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 9.07.
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ARTICLE 10
SUBORDINATION OF NOTES
SECTION 10.01. NOTES SUBORDINATE TO SENIOR INDEBTEDNESS. The Company
covenants and agrees, and each Holder of a Note, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this Article 10, the Indebtedness represented by the Notes and the
payment of the principal of and interest on each and all of the Notes are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness and senior, in right of payment to all
Subordinated Obligations.
SECTION 10.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. In the event
of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event
the holders of Senior Indebtedness shall be entitled to receive payment in full
of all amounts due or to become due on or in respect of all Senior Indebtedness
in cash or cash equivalents, or provision shall be made for such payment in cash
or other immediately available funds or otherwise in a manner satisfactory to
each holder of Senior Indebtedness with respect to its Indebtedness, before the
Holders of the Notes are entitled to receive any payment on account of principal
of (and premium, if any) or interest on the Notes, and to that end the holders
of Senior Indebtedness shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, securities or other property, which may be payable or deliverable in
respect of the Notes in any such case, proceeding, dissolution, liquidation or
other winding up or event.
For purposes of this Article 10 only, the words "cash, securities or other
property" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which shares of stock
are subordinated in right of payment to all then outstanding Senior Indebtedness
to substantially the same extent as, or to a greater extent than, the Notes are
so subordinated as provided in this Article 10. The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or transfer of its
properties and assets substantially as an entirety to another Person upon the
terms and conditions set forth in Article 5 shall not be deemed a dissolution,
winding up, liquidation, reorganization, assignment for the benefit of creditors
or marshalling of assets and liabilities of the Company for the purposes of this
Section 10.02 if the Person formed by such consolidation or into which the
Company is merged or which acquires by conveyance or transfer such properties
and assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Article 5.
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SECTION 10.03. NOTICE TO SENIOR INDEBTEDNESS UPON ACCELERATION OF NOTES.
In the event that any Notes are declared due and payable before their Stated
Maturity the Company or the Trustee shall promptly notify holders of Senior
Indebtedness or their Representative of the acceleration and the Company shall
not make any payment on account of principal of (and premium, if any) or
interest on the Notes until five Business Days after the giving of such notice.
Payments on the Notes may thereafter be made if otherwise permitted by this
Article 10.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Note prohibited by the foregoing
provisions of this Section 10.03, and if such fact shall, at least one Business
Day prior to the time of such payment, have been made actually known to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then and
in such event such payment shall be paid over and delivered by the respective
recipient forthwith to the Company,
The provisions of this Section 10.03 shall not apply to any payment with
respect to which Section 10.02 would be applicable.
SECTION 10.04. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT. (a) Unless
Section 10.02 hereof shall be applicable, upon (a) the occurrence of a Payment
Default and (b) receipt by the Trustee of written notice of such occurrence,
then no direct or indirect payment or distribution in cash, securities or other
property of the Company shall be made on or on behalf of the Company on account
of principal of (or premium, if any) or interest on the Notes or on account of
the purchase or redemption or other acquisition of Notes unless and until such
Payment Default shall have been cured or waived in writing or shall have ceased
to exist or such Senior Indebtedness shall have been paid in full in cash or
cash equivalents or otherwise discharged, after which the Company shall resume
making any and all required payments in respect of the Notes, including any
missed payments.
(b) Unless Section 10.02 hereof shall be applicable, upon (a) the
occurrence of a Non-payment Default and (b) receipt by the Trustee or the
Company of written notice of such occurrence from one or more of the holders of
Designated Senior Indebtedness (or their Representative), then no direct or
indirect payment or distribution in cash, securities or other property of the
Company shall be made on or on behalf of the Company on account of any principal
of (or premium, if any) or interest on the Notes or on account of the purchase
or redemption or other acquisition of Notes for the period specified below (the
"Payment Blockage Period"). The Payment Blockage Period will commence upon the
earlier of the dates of receipt by the Trustee or the Company of such notice
(the "Payment Blockage Notice") from one or more of the holders of Designated
Senior Indebtedness (or their Representative) and shall end on the earliest of
(a) 179 days thereafter, (b) the date, as set forth in a written notice from the
holders of the Designated Senior Indebtedness (or their Representative) to the
Company or the Trustee, on which such Non-payment Default is cured, waived in
writing or ceases to exist or such Designated Senior Indebtedness is discharged
or (c) the date on which such Payment Blockage Period shall have been terminated
by written notice to the Company or the Trustee from one or more of the holders
(or their Representative) initiating such Payment Blockage Period, after which
the Company will resume (unless otherwise prohibited pursuant to the
37
immediately preceding paragraph) making any and all required payments in respect
of the Notes, including any missed payments. In any event, not more than one
Payment Blockage Period may be commenced during any period of 360 consecutive
days. No Non-payment Default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee will be, or can be, made
the basis for the commencement of a subsequent Payment Blockage Period.
(c) In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Note prohibited by the
foregoing provisions of this Section 10.04, then and in such event such payment
shall be paid over and delivered forthwith to the Company. Notwithstanding the
foregoing, in the event that the Company shall make any payment in respect of
the Notes to the Trustee and the Trustee shall receive written notice of a
Payment Default or a Non-payment Default from one or more of the holders of
Designated Senior Indebtedness (or their Representative) prior to making any
payment to Holders in respect of the Notes and prior to 11:00 a.m., New York
City time, on the date which is two Business Days prior to the date upon which
by the terms hereof any money may become payable for any purpose, such payments
shall be paid over by the Trustee and delivered forthwith to the Company.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER. In the event that the
Trustee or any Holder receives any payment on account of any obligations with
respect to the Notes at a time when such payment is prohibited by this Article
10 and if such fact shall, at least one Business Day prior to the time of such
payment, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event, such payment shall be held by the Trustee or
such Holder in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to, the holders of Senior Indebtedness as their
interests may appear or their Representative under the Indenture or other
agreement (if any) pursuant to which Senior Indebtedness may have been issued,
as their respective interests may appear, for application to the payment of all
obligations with respect to Senior Indebtedness remaining unpaid to the extent
necessary to pay such obligations in full in accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness,
SECTION 10.06. PAYMENT PERMITTED IF NO DEFAULT. Nothing contained in this
Article 10 or elsewhere in this Indenture or in any of the Notes shall prevent
(a) the Company, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the Company referred
to in Section 10.02, or under the conditions described in Sections 10.03 and
10.04, from making payments at any time of principal of (and premium, if any) or
interest on the Notes, or (b) the application by the Trustee of any money
deposited with it hereunder to the payment of or on account of the principal of
(and premium, if any) or interest on the Notes or the retention of such payment
by the Holders, if, at the time of such application by the Trustee, a
Responsible Officer of the Trustee did not have knowledge that such payment
would have been prohibited by the provisions of this Article 10.
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SECTION 10.07. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Notes shall be subrogated to the extent of the payments or distributions made to
the holders of such Senior Indebtedness pursuant to the provisions of this
Article 10 to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of (and premium, if any) and interest on
the Notes shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders of the Notes or the Trustee would be
entitled except for the provisions of this Article 10, and no payments over
pursuant to the provisions of this Article 10 to the holders of Senior
Indebtedness by Holders of the Notes or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of the Notes, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
SECTION 10.08. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. The provisions
of this Article 10 are and are intended solely for the purpose of defining the
relative rights of the Holders of the Notes on the one hand and the holders of
Senior Indebtedness on the other hand. Nothing contained in this Article 10 or
elsewhere in this Indenture or in the Notes is intended to or shall (a) impair,
as among the Company, its creditors other than holders of Senior Indebtedness
and the Holders of the Notes, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Notes the principal of (and
premium, if any) and interest on the Notes as and when the same shall become
due and payable in accordance with their terms; or (b) affect the relative
rights against the Company of the Holders of the Notes and creditors of the
Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Notes from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 10 of the holders of Senior Indebtedness to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
SECTION 10.09. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a Note
by his acceptance thereof authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 10 and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 10.10. NO WAIVER OF SUBORDINATION PROVISIONS. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder of any Senior Indebtedness, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
39
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Notes, without
incurring responsibility to the Holders of the Notes and without impairing or
releasing the subordination provided in this Article 10 or the obligations
hereunder of the Holders of the Notes to the holders of Senior Indebtedness, do
any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew, increase or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
SECTION 10.11. NOTICE TO TRUSTEE. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Notes.
Notwithstanding the provisions of this Article 10 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Notes, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or from any
trustee therefor (provided that only holders of Designated Senior Indebtedness
or their Representatives may give the notice provided for in Section 10.04(b));
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 7.01, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 10.11 at least two Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (and premium, if any) or interest on any Note), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.
Notwithstanding anything in this Article 10 to the contrary, nothing shall
prevent any payment by the Trustee to the Holders of monies deposited with it
pursuant to Section 8.01, and any such payment shall not be subject to the
provisions of Sections 10.02, 10.03 or 10.04.
Subject to the provisions of Article 7, the Trustee shall be entitled to
conclusively rely an the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a Representative
therefor) or Designated Senior Indebtedness (or a Representative therefor) to
establish that such notice has been given by a holder of Senior Indebtedness (or
a Representative therefor) or Designated Senior Indebtedness (or a
Representative therefor). In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article 10, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to
40
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article 10, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 10.12. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT. Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee, subject to the provisions of Section 7.01, and the
Holders of the Notes shall be entitled to conclusively rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the Persons entitled to participate in such a payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
10.
SECTION 10.13. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Notes or to the
Company or to any other Person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article 10 or
otherwise.
SECTION 10.14. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article 10 with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 10.15. ARTICLE APPLICABLE TO PAYING AGENTS. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article 10 shall in
such case (unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article 10 in addition to or
in place of the Trustee; provided, however, that Section 10.14 shall not apply
to the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
41
SECTION 10.16. AUTHORIZATION TO EFFECTIVE SUBORDINATION. Each Holder of
Notes, by the Holder's acceptance thereof, authorizes and directs the Trustee on
such ▇▇▇▇▇▇'s behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article 10, and appoints the
Trustee to act as such ▇▇▇▇▇▇'s attorney-in-fact for any and all such purposes.
If the Trustee does not file a proper proof of claim or proof of debt in the
form required in any proceeding referred to in Section 6.09 hereof at least 30
days before the expiration of the time to file such claim, one or more Holders
of the Designated Senior Indebtedness (or their Representative) are hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by TIA
ss. 318(c), the imposed duties shall control.
SECTION 11.02. NOTICES. Any notice or communication by the Company or the
Trustee to the others is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' address:
If to the Company:
Envirosource, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Secretary
If to the Trustee:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders of Notes)
shall be deemed to have been duly given: (i) at the time delivered by hand, if
personally delivered; (ii) five Business Days after being deposited in the mail,
postage prepaid, if mailed; (iii) when answered back, if telexed; (iv) when
receipt acknowledged, if telecopied; and (v) the next
42
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery,
Any notice or communication to a Holder of a Note shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA ss. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder of a Note or any defect in
it shall not affect its sufficiency with respect to other Holders of Notes.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders of Notes, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES. Holders of the Notes may communicate pursuant to TIA ss. 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 anyone else shall have the
protection of TIA ss. 312(c),
SECTION 11.04. 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, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is
43
based are erroneous. Any such certificate or Opinion of Counsel may be based,
and may state that it is so based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an Officer or Officers
of the Company stating that the information with respect to such factual matters
is in the possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate of opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant
to TIA ss. 314(a)(4)) 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 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
satisfied; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been satisfied.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS. The Trustee may make reasonable
rules for action by or at a meeting of Holders of Notes. The Registrar or Paying
Agent may make reasonable rules and set reasonable requirements for its
functions.
SECTION 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS. No director, officer, employee, agent, manager, incorporator,
stockholder or other Affiliate of the Company, as such, shall have any liability
for any obligations of the Company under the Notes or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the 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. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that such
a waiver is against public policy.
44
SECTION 11.08, GOVERNING LAW. The internal law of the State of New York
shall govern and be used to construe this Indenture and the Notes.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or its Subsidiaries. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
SECTION 11.10. SUCCESSORS. All agreements of the Company in this Indenture
and the Notes shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 11.11. SEVERABILITY. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 11.12. COUNTERPART ORIGINALS. The parties may sign any number of
copies of this Indenture, Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 11.13. OTHER PROVISIONS. The first certificate pursuant to Section
4.04 shall be for the fiscal year ending on December 31, 2001.
The reporting date for Section 7.06 is July 1 of each year. The first
reporting date is July 1, 2002.
SECTION 11.14. 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, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
45
SIGNATURES
Dated as of ______________ __, 2001 ENVIROSOURCE, INC.
By: ___________________________
Name:
Title:
Attest:
___________________________________
Dated as of ______________ __, 2001 UNITED STATES TRUST COMPANY OF
NEW YORK as Trustee
By: ____________________________
Name:
Title:
Attest:
___________________________________
EXHIBIT A
(Face of Note)
(THIS GLOBAL NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
REFERRED TO ON THE REVERSE THEREOF.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
ENVIROSOURCE, INC, (THE "COMPANY") OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.05 OF THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.
THIS GLOBAL NOTE IS EXCHANGEABLE FOR A NOTE IN DEFINITIVE, FULLY REGISTERED
FORM, WITHOUT INTEREST COUPONS, IF (A) DTC NOTIFIES THE ISSUER THAT IT IS
UNWILLING OR UNABLE TO CONTINUE AS DEPOSITORY FOR THIS GLOBAL NOTE OR IF AT ANY
TIME DTC CEASES TO BE A "CLEARING AGENCY" REGISTERED UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED, AND A SUCCESSOR DEPOSITORY IS NOT APPOINTED BY
THE ISSUER WITHIN 90 DAYS OF SUCH NOTICE. (B) THE ISSUER EXECUTES AND DELIVERS
TO THE TRUSTEE A NOTICE THAT THIS GLOBAL NOTE SHALL BE SO TRANSFERABLE,
REGISTRABLE, AND EXCHANGEABLE, AND SUCH TRANSFER SHALL BE SO REGISTRABLE, OR (C)
AN EVENT OF DEFAULT (AS HEREINAFTER DEFINED) HAS OCCURRED AND IS CONTINUING WITH
RESPECT TO THE NOTES.](1)
-----------------
(1) These paragraphs should be included if the Notes are issued in global form.
A-2
14% Subordinated Notes due 2008
ENVIROSOURCE, INC,
No.
CUSIP No.
$_______________________
ENVIROSOURCE, INC. promises to pay to ______________________ or registered
assigns, the principal sum of _______________ United States Dollars, [or such
greater or lesser amount as may from time to time be endorsed on Schedule A
hereto](2) on December 15, 2008,
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1 (whether or not a Business Day)
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authorization hereon has been duly executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit of this Indenture or be valid or obligatory
for any purpose.
------------------
(2) This is included on Global Notes only.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed as of the date written below.
ENVIROSOURCE, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
By: __________________________________
Name: ________________________________
Dated: ___________________________ Title: _______________________________
Certificate of Authentication:
This is one of the Notes
referred to in the within-mentioned
Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By: ____________________________________
Authorized Signatory
A-4
(Back of Note)
14% Subordinated Note due 2008
Capitalized terms used herein have the meaning assigned to them in the
Indenture (as defined below) unless otherwise indicated
(1) Interest. Envirosource, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at the rate and in
the manner specified below. The Company shall pay interest on the principal
amount of this Note at the rate per annum of 14%. The Company will pay interest
semianually on June 15 and December 15 of each year, commencing December 15,
2001, or if any such day is not a Business Day on the next succeeding Business
Day (each an "Interest Payment Date"). Interest will be computed on the basis of
a 360-day year consisting of twelve 30-day months. Interest shall accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from 2001. To the extent lawful, the Company shall pay interest on overdue
principal at the rate equal to the interest rate on the Notes; it shall pay
interest on overdue installments of interest (without regard to any applicable
grace periods) at the same rate to the extent lawful.
(2) Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the record date next preceding the Interest Payment Date,
even if such Notes are cancelled after such record date and on or before such
Interest Payment Date. The Holder hereof must surrender this Note to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. The Notes will be payable both as to
principal and interest at the office or agency of the Company maintained for
such purpose within the City and State of New York or, at the option of the
Company, payment of interest may be made by check mailed to the Holders of Notes
at their respective addresses set forth in the register of Holders of Notes.
Unless otherwise designated by the Company, the Company's office or agency in
New York will be the office of the Trustee maintained for such a purpose.
(3) Paying Agent and Registrar. Initially, the Trustee will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder of a Note. The Company may act
in any such capacity,
(4) Indenture. The Company issued the Notes under an Indenture, dated as of
___________ __, 2001 (the "Indenture"), between the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
▇▇.▇▇. 77aaa-77bbbb) as in effect on the date of the Indenture. The Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and such act for a statement of such terms. The terms of the Indenture shall
govern any inconsistencies between the Indenture and the Notes, The Notes are
unsecured general obligations of the Company limited to $63,000,000 in aggregate
principal amount.
(5) Optional Redemption. The Company shall have the option to redeem the
Notes at any time as a whole or from time to time in part, upon not less than 30
nor more than 60
A-5
days' notice, at 100% of the principal amount plus accrued and unpaid interest
thereon to the applicable redemption date.
(6) Mandatory Redemption. The Company will not be required to make
mandatory redemption payments with respect to the Notes. There are no sinking
fund payments with respect to the Notes.
(7) Notice of Redemption. Notice of redemption shall be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes held by a
Holder of Notes are to be redeemed. On and after the redemption date, interest
ceases to accrue on Notes or portions of them called for redemption.
(8) Denominations, Transfer, & Change. The Notes are in registered form
without coupons in denominations of $1.00 and integral multiples of S1.00. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder of a Note,
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. The
Registrar need not exchange or register the transfer of any Note or portion of a
Note selected for redemption. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed.
(9) Persons Deemed Owners. Prior to due presentment to the Trustee for
registration of the transfer of this Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name this Note is registered as
its absolute owner for the purpose of receiving payment of principal of,
premium, if any, and interest on this Note and for all other purposes
whatsoever, whether or not this Note is overdue, and neither the Trustee, any
Agent nor the Company shall be affected by notice to the contrary. The
Registered Holder of a Note shall be treated as its owner for all purposes.
(10) Amendments, Supplement and Waivers. Subject to certain exemptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes. Without
the consent of any Holder of a Note, the Indenture or the Notes may be amended
or supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of Certificated Notes or to
alter the provisions of Article 2 of the Indenture (including the related
definitions) in a manner that does not materially adversely affect any Holder,
to provide for the assumption of the Company's obligations to Holders of the
Notes in case of a merger or consolidation, to make any change that would
provide any additional rights or benefits of the Holders of the Notes or that
does not materially adversely affect the legal rights under the Indenture of any
such Holder, to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust Indenture
Act, to add additional Events of Default or to secure the Notes.
A-6
(11) Subordination. The Indebtedness evidenced by the Notes is, to the
extent provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness, and this Note is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effect the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
(12) Remedies. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable without further action or notice. Holders of the
Notes may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest on,
or the principal of, the Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of Default.
(13) Trustee Dealings with Company. The Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee; however, if the
Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as Trustee or
resign.
(14) No Personal Liabilities of Directors, Officers, Employees and
Stockholders. No director, officer, employee, agent, manager, incorporator,
stockholder or other Affiliate of the Company shall have any liability for any
obligations of the Company 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 of a Note by accepting a Note waives and releases all such liability. The
Waiver and release are part of the consideration for the issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
(15) Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
A-7
(16) Abbreviations. Customary abbreviations may be used in the name of a
Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/MIA (= Uniform Gifts
to Minors Act).
(17) CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders of Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture. Request may be made to:
Envirosource, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Secretary
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below: (1) or (we) assign and
transfer this Note to __________________________________________________________
(Insert assignee's Soc. Sec. or tax I.D. No.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
________agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------------
Date: _____________________
Your Signature: ________________________
(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee.
A-9
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
----------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
--------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ________________________________________________________ attorney to
transfer said Note on the books of the Company with full power of substitution
in the premises.
Date: _____________________ ________________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
A-10
SCHEDULE A
CHANGES IN PRINCIPAL AMOUNT OF NOTE(3)
The following changes in the principal amount of this Global Note have
been recorded:
Principal ▇▇▇▇▇▇
▇▇▇▇▇▇ of decrease Amount of of this
in increase in Global Note
Principal Principal Following such Signature of
Date of Amount of Amount of decrease authorized officer
Transaction this Global Note This Global Note (or increase) of Trustee
----------- ---------------- ---------------- ------------- ----------
-----------------
(3) This should only be included if the Note is issued in global form.
A-11