INDENTURE
Published on January 9, 2003
DYNEX CAPITAL, INC.
Issuer
AND
WACHOVIA BANK NATIONAL ASSOCIATION
Trustee
INDENTURE
Dated as of ___________, 2003
9.50 % Senior Notes Due 2005
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310 (a)(1)............................................................... 7.10
(a)(2................................................................ 7.10
(a)(3)............................................................... N.A.
(a)(4)............................................................... N.A.
(a)(5)............................................................... 7.10
(b).................................................................. 7.9
(c).................................................................. N.A.
311 (a).................................................................. 7.14
(b).................................................................. 7.14
(c).................................................................. N.A.
312 (a)........................................................... 2.5(a); 5.1
(b)......................................... ........................ 13.2
(c).................................................. ............... 12.2
313 (a)............................................ ..................... 7.2
(b)(1).............................................. .............. N.A.
(b)(2)............................................................... 7.2
(c).................................................................. 7.2
(d).................................................................. 7.2
314 (a).......................................................... 4.7(a); 5.2
(b).................................................................. N.A.
(c)(1)............................................................... 13.4
(c)(2)............................................................... 13.4
(c)(3)............................................................... N.A.
(d).................................................................. N.A.
(e) ................................................................. 13.4
(f).................................................................. N.A.
315 (a)................................................................ 7.1(b)
(b).................................................................. 6.8
(c................................................................ 7.1(a)
(d................................................................ 7.1(c)
(e................................................................... 6.9
316 (a) (last sentence).................................................. 8.4
(a)(1)(A)............................................................ 6.7
(a)(1)(B)............................................................ 6.7
(a)(2)............................................................... N.A.
(b).................................................................. 6.4
(c).................................................................. 8.1
317 (a).................................................................. 6.2
(b).................................................................. 4.4
318 (a).......................................................... 13.07; 13.08
N.A. means "not applicable".
* This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS..................................................1
Section 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT............7
Section 1.3 RULES OF CONSTRUCTION........................................7
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
Section 2.1 DESIGNATION, AMOUNT AND ISSUE OF NOTES.......................8
Section 2.2 FORM OF NOTES................................................8
Section 2.3 DATE AND DENOMINATION OF NOTES; PAYMENTS OF PRINCIPAL
AND INTEREST..............................................8
Section 2.4 EXECUTION OF NOTES..........................................10
Section 2.5 EXCHANGE AND TRANSFER OF NOTES; RESTRICTIONS ON
TRANSFER; DEPOSITORY......................................10
Section 2.6 MUTILATED, DESTROYED, LOST OR STOLEN NOTES..................13
Section 2.7 TEMPORARY NOTES.............................................14
Section 2.8 CANCELLATION OF NOTES PAID, ETC.............................15
Section 2.9 CUSIP NO....................................................15
ARTICLE III
REDEMPTION AND REPURCHASE OF NOTES
Section 3.1 REDEMPTION PRICES...........................................15
Section 3.2 NOTICE OF REDEMPTION; SELECTION OF NOTES....................15
Section 3.3 PAYMENT OF NOTES CALLED FOR REDEMPTION......................17
Section 3.4 REPURCHASE OF NOTES UPON A CHANGE OF CONTROL................17
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST..................19
Section 4.2 MAINTENANCE OF OFFICE OR AGENCY.............................19
Section 4.3 APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE..........20
Section 4.4 PROVISIONS AS TO PAYING AGENT...............................20
Section 4.5 CORPORATE EXISTENCE.........................................21
Section 4.6 STAY, EXTENSION AND USURY LAWS..............................21
Section 4.7 COMPLIANCE STATEMENT; NOTICE OF DEFAULTS....................22
Section 4.8 LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES....................................22
Section 4.9 TAXES.......................................................22
Section 4.10 INSURANCE...................................................22
Section 4.11 LIMITATION ON RESTRICTED PAYMENTS...........................23
Section 4.12 LIMITATION ON TRANSACTIONS WITH AFFILIATES..................23
ARTICLE V
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY
Section 5.1 NOTEHOLDERS' LISTS..........................................24
Section 5.2 REPORTS BY COMPANY..........................................24
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 EVENTS OF DEFAULT...........................................25
Section 6.2 PAYMENTS OF NOTES ON DEFAULT; SUIT THEREFOR.................27
Section 6.3 APPLICATION OF MONIES COLLECTED BY TRUSTEE..................29
Section 6.4 PROCEEDINGS BY NOTEHOLDER...................................29
Section 6.5 PROCEEDINGS BY TRUSTEE......................................30
Section 6.6 REMEDIES CUMULATIVE AND CONTINUING..........................30
Section 6.7 DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY
MAJORITY OF NOTEHOLDERS.....................................30
Section 6.8 NOTICE OF DEFAULTS..........................................31
Section 6.9 UNDERTAKING TO PAY COSTS....................................31
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.1 DUTIES AND RESPONSIBILITIES OF TRUSTEE......................32
Section 7.2 REPORTS BY TRUSTEE TO HOLDERS...............................33
Section 7.3 RELIANCE ON DOCUMENTS, OPINIONS, ETC........................33
Section 7.4 NO RESPONSIBILITY FOR RECITALS, ETC.........................34
Section 7.5 TRUSTEE, PAYING AGENTS, CONVERSION AGENTS OR REGISTRAR
MAY OWN NOTES...............................................34
Section 7.6 MONIES TO BE HELD IN TRUST..................................34
Section 7.7 COMPENSATION AND EXPENSES OF TRUSTEE........................35
Section 7.8 OFFICERS' CERTIFICATE AS EVIDENCE...........................35
Section 7.9 CONFLICTING INTERESTS OF TRUSTEE............................35
Section 7.10 ELIGIBILITY OF TRUSTEE......................................36
Section 7.11 RESIGNATION OR REMOVAL OF TRUSTEE...........................36
Section 7.12 ACCEPTANCE BY SUCCESSOR TRUSTEE.............................37
Section 7.13 SUCCESSOR, BY MERGER, ETC...................................38
Section 7.14 LIMITATION ON RIGHTS OF TRUSTEE AS CREDITOR.................38
ARTICLE VIII
CONCERNING THE NOTEHOLDERS
Section 8.1 ACTION BY NOTEHOLDERS.......................................38
Section 8.2 PROOF OF EXECUTION BY NOTEHOLDERS...........................38
Section 8.3 WHO ARE DEEMED ABSOLUTE OWNERS..............................39
Section 8.4 COMPANY-OWNED NOTES DISREGARDED.............................39
Section 8.5 REVOCATION OF CONSENTS, FUTURE HOLDERS BOUND................40
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS......40
Section 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.........41
Section 9.3 EFFECT OF SUPPLEMENTAL INDENTURES...........................42
Section 9.4 NOTATION ON NOTES...........................................42
Section 9.5 EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO
BE FURNISHED TO THE TRUSTEE...............................42
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE
Section 10.1 COMPANY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS..............43
Section 10.2 SUCCESSOR COMPANY TO BE SUBSTITUTED.........................43
Section 10.3 OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE...................43
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 11.1 LEGAL DEFEASANCE AND COVENANT DEFEASANCE OF THE NOTES.......44
Section 11.2 TERMINATION OF OBLIGATIONS UPON CANCELLATION OF THE NOTES...46
Section 11.3 SURVIVAL OF CERTAIN OBLIGATIONS.............................46
Section 11.4 ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE......................46
Section 11.5 APPLICATION OF TRUST ASSETS.................................47
Section 11.6 REPAYMENT TO THE COMPANY; UNCLAIMED MONEY...................47
Section 11.7 REINSTATEMENT...............................................47
ARTICLE XII
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 12.1 INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS............48
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 ADDRESSES FOR NOTICES, ETC..................................48
Section 13.2 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS................49
Section 13.3 GOVERNING LAW...............................................49
Section 13.4 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT;
CERTIFICATES TO TRUSTEE...................................49
Section 13.5 LEGAL HOLIDAYS..............................................50
Section 13.6 NO SECURITY INTEREST CREATED................................50
Section 13.7 TRUST INDENTURE ACT.........................................50
Section 13.8 TRUST INDENTURE ACT CONTROLS................................50
Section 13.9 BENEFITS OF INDENTURE.......................................50
Section 13.10 TABLE OF CONTENTS, HEADINGS, ETC............................50
Section 13.11 AUTHENTICATING AGENT........................................51
Section 13.12 EXECUTION IN COUNTERPARTS...................................51
INDENTURE, dated as of __________, 2003, by and between DYNEX CAPITAL,
INC., a Virginia corporation (the "Company"), and Wachovia Bank National
Association, a national banking corporation (the "Trustee").
W I T N E S S E T H:
------------------
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issuance of its 9.50% Senior Notes Due 2005 (the "Notes"), in an aggregate
principal amount not to exceed $30,000,000 and to provide the terms and
conditions upon which the Notes are to be authenticated, issued and delivered,
the Company has duly authorized the execution and delivery of this Indenture;
and
WHEREAS, the Notes will be originally issued solely in global form, and in
the event that the Company issues Notes in definitive form, such issuance will
be accompanied by a supplement to this Indenture including the form of
definitive Notes; and
WHEREAS, the Notes, the certificate of authentication to be borne by the
Notes, a form of assignment, a form of option to require repurchase by the
Company upon a Change of Control (as hereinafter defined), and a certificate of
transfer to be borne by the Notes are to be substantially in the forms
hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes, when executed by
the Company and authenticated and delivered by the Trustee or a duly authorized
authenticating agent, as in this Indenture provided, the valid, binding and
legal obligations of the Company, and to constitute these presents a valid
agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issuance hereunder of the Notes have in all
respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are,
and are to be, authenticated, issued and delivered, and in consideration of the
premises and of the purchase and acceptance of the Notes by the holders thereof,
the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below) as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS.
-----------
The terms defined in this Section 1.1 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section 1.1. All other terms used in this Indenture
that are defined in the Trust Indenture Act (as hereinafter defined) or that are
by reference defined in the Securities Act (as hereinafter defined), except as
herein otherwise expressly provided for or unless the context otherwise
requires, shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force on the date of this Indenture. The
words "herein," "hereof," "hereunder" and words of similar import refer to this
Indenture as a whole and not to any particular Article or Section.
"Affiliate". An "Affiliate" of any specified person shall mean an
"affiliate" as defined in Rule 144(a) as promulgated under the Securities Act.
"Board Of Directors". The term "Board of Directors" shall mean the Board of
Directors of the Company or a committee of such Board of Directors duly
authorized to act for it.
"Board Resolution". The term "Board Resolution" shall mean a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification.
"Business Day". The term "Business Day" shall mean a day, other than a
Saturday, a Sunday or a day on which the banking institutions in the State and
City of New York are authorized or obligated by law or executive order to close
or a day that is declared a national or New York state holiday.
"Capital Stock". The term "Capital Stock" of any person shall mean any and
all shares, interests, participations or other equivalents (however designated)
of such person's corporate stock or any and all equivalent ownership interests
in a person (other than a corporation) whether now outstanding or issued after
the date hereof.
"Cede". The term "Cede" shall mean Cede & Co., a nominee of the Depository.
"Change Of Control". The term "Change of Control" shall have the meaning
specified in Section 3.4(d).
"Change Of Control Purchase Price". The term "Change of Control Purchase
Price" shall have the meaning specified in Section 3.4(a).
"Change Of Control Purchase Date". The term "Change of Control Purchase
Date" shall have the meaning specified in Section 3.4(a).
"Change Of Control Offer". The term "Change of Control Offer" shall have
the meaning specified in Section 3.4(a).
"Commission". The term "Commission" shall mean the United States Securities
and Exchange Commission, as from time to time constituted, created under the
Exchange Act or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, the body performing such duties at such time.
"Company". The term "Company" shall mean Dynex Capital, Inc., a Virginia
corporation, and subject to the provisions of Article X, shall include its
successors and assigns.
"Corporate Trust Office of the Trustee". The term "Corporate Trust Office
of the Trustee," or other similar term, shall mean the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, from its office which is, located at 1021 East Cary Street, 3rd
Floor (Corporate Trust-VA), Richmond, Virginia 23219.
"Covenant Defeasance". The term "covenant defeasance" shall have the
meaning specified in Section 11.1(c).
"Custodian". The term "Custodian" shall mean the Trustee, as custodian for
Cede pursuant to Section 2.5 with respect to the Notes in global form, or any
successor entity thereto.
"Default". The term "default" shall mean any event that is, or after notice
or passage of time, or both, would be, an Event of Default.
"Defaulted Interest". The term "Defaulted Interest" shall have the meaning
specified in Section 2.3.
"Definitive Notes; In Definitive Form". The term "Definitive Notes" shall
mean the Notes in definitive form. Any reference to Notes "in definitive form"
shall mean definitive Notes.
"Depository". The term "Depository" shall mean, with respect to the Notes
issuable or issued in whole or in part in global form, the person specified in
Section 2.5(b) as the Depository with respect to the Notes, until a successor
shall have been appointed and become such pursuant to the applicable provisions
of this Indenture, and thereafter, "Depository" shall mean or include such
successor.
"Disqualified Stock". The term "Disqualified Stock" means, with respect to
any Person, any Capital Stock which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is exchangeable for indebtedness, or is
redeemable at the option of the holder thereof, in whole or in part on or prior
to the stated maturity.
"DWAC". The term "DWAC" shall mean Deposit and Withdrawal at Custodian
Service.
"Event of Default". The term "Event of Default" shall mean any event
specified in Section 6.1(a) through (g).
"Exchange Act". The term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Global Note". The term "Global Note" shall mean the note in global form as
specified in Exhibit A.
"Indenture". The term "Indenture" shall mean this instrument as originally
executed or, if amended or supplemented as herein provided, as so amended or
supplemented.
"Legal Defeasance". The term "legal defeasance" shall have the meaning
specified in Section 11.1(b).
"Note or Notes". The terms "Note" or "Notes" shall mean any one or more, as
the case may be, of the 9.5% Senior Notes Due 2005 authenticated and delivered
under this Indenture.
"Noteholder; Holder". The term "Noteholder" or "holder" as applied to any
Note, or other similar term (but excluding the term "beneficial holder"), shall
mean any person in whose name at the time a particular Note is registered on the
Note registrar's books.
"Note Register". The term "Note register" shall have the meaning specified
in Section 2.5(a).
"Note Registrar". The term "Note registrar" shall have the meaning
specified in Section 2.5(a).
"Officers' Certificate". The term "Officers' Certificate," when used with
respect to the Company, shall mean a certificate signed by two authorized
officers which shall include (a) any of the President, the Chief Executive
Officer, the Chief Operating Officer or the Chief Financial Officer and (b) any
Treasurer or Secretary or any Assistant Secretary of the Company, that is
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 13.4 if and to the extent required by the provisions of
such Section.
"Opinion of Counsel". The term "Opinion of Counsel" shall mean an opinion
in writing signed by legal counsel, who may be an employee of or counsel to the
Company or other counsel acceptable to the Trustee, that is delivered to the
Trustee. Each such opinion shall include the statements provided for in Section
13.4 if and to the extent required by the provisions of such Section.
"Outstanding". The term "outstanding" with reference to Notes as of any
particular time shall mean, subject to the provisions of Section 8.4, all Notes
authenticated and delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, for which monies in the necessary
amount shall have been deposited in trust with the Trustee for payment,
redemption or repurchase; provided that if such Notes are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been
given pursuant to Article III or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Notes paid or exchanged pursuant to Section 2.5 hereof or Notes in
lieu of or in substitution for which other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.6 unless
proof satisfactory to the Trustee is presented that any such Notes are held
by BONA FIDE holders in due course shall not be deemed outstanding.
"Payment Date". The term "Payment Date" shall mean each May 31, August 31,
November 30 and February 28. --------------
"Payment Default". The term "Payment Default" shall have the meaning
specified in Section 6.1(d). -----------------
"Person". The term "person" shall mean a corporation, an association, a
partnership, an individual, a joint venture, a joint stock company, a trust, an
unincorporated organization or a government or an agency or a political
subdivision thereof.
"Predecessor Note". The term "Predecessor Note" of any particular Note
shall mean every previous Note evidencing all or a portion of the same debt as
that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.6 in lieu of a
lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
lost, destroyed or stolen Note.
"Record Date". The term "record date" with respect to any Payment Date
shall have the meaning set forth in Section 2.3 hereof.
"Responsible Officer". The term "Responsible Officer" with respect to the
Trustee, shall mean an officer of the Trustee assigned and duly authorized by
the Trustee to administer its corporate trust matters.
"Restricted Payment". The term "Restricted Payment" means any of the
following: (i) the declaration or payment of any dividend or any other
distribution on Capital Stock of the Company or any payment made to the direct
or indirect holders (in all their capacities as such) of Capital Stock of the
Company (other than dividends or distributions payable solely in Capital Stock
(other than Disqualified Stock) or in options, warrants or other rights to
purchase Capital Stock (other than Disqualified Stock); (ii) the purchase,
redemption or other acquisition or retirement for value of any Capital Stock of
the Company or (iii) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement for value,
prior to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, of any indebtedness existing on the Issue Date which is subordinated in
right of payment to the Notes (other than indebtedness acquired in anticipation
of satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of acquisition and other
than calls and resecuritizations of non-recourse obligations.)
"Securities Act". The term "Securities Act" shall mean the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder.
"Subsidiary". The term "Subsidiary" of any specified person shall mean (i)
a corporation, a majority of whose Capital Stock with voting power under
ordinary circumstances to elect directors is at the time directly or indirectly
owned by such person or (ii) any other person (other than a corporation) in
which such person or such person and a Subsidiary or Subsidiaries of such person
or a Subsidiary or Subsidiaries of such person directly or indirectly, at the
date of determination thereof, has at least majority ownership.
"Successor Company". The term "Successor Company" shall have the meaning
specified in Section 11.1.
"Trust Indenture Act". The term "Trust Indenture Act" shall mean the Trust
Indenture Act of 1939, as amended, as it was in force at the date of execution
of this Indenture, except as provided in Sections 9.3 and 13.8; provided that in
the event said Trust Indenture Act of 1939 is amended after the date hereof, the
term "Trust Indenture Act" shall mean, to the extent required by such amendment,
said Trust Indenture Act of 1939 as so amended.
"Trustee". The term "Trustee" shall mean Wachovia Bank National
Association, its successors and any corporation resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee at the time serving as successor trustee hereunder.
"U.S. Government Obligations". The term "U.S. Government Obligations" shall
mean 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 timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian
with respect to any such U.S. Government Obligation or a specific payment of
principal or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by such custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
"Voting Stock". The term "Voting Stock" shall have the meaning set forth in
Section 3.5(e) hereof.
Section 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
-------------------------------------------------
Whenever this Indenture refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the
following meanings:
"Indenture Securities" means the Notes;
"Indenture Security Holder" means a holder of Notes;
"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
under the Trust Indenture Act.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act have the meanings so
assigned to them.
Section 1.3 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 generally accepted accounting
principles;
(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 II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.1 Designation, Amount and Issue of Notes.
--------------------------------------
The Notes shall be designated as "9.5% Senior Notes Due 2005." Notes not to
exceed the aggregate principal amount of $30,000,000 upon the execution of this
Indenture, or from time to time thereafter, may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Notes upon the written order
of the Company, signed by its (a) Chief Executive Officer, President, Chief
Operating Officer or Chief Financial Officer, and (b) any Treasurer or Secretary
or any Assistant Secretary, without any further action by the Company hereunder.
The Global Note shall be exchangeable only as provided in Section 2.5.
Section 2.2 Form of Notes.
-------------
The Global Note shall represent all of the outstanding Notes and shall not
be exchangeable for definitive Notes except as herein expressly provided.
Payment of principal of and interest and premium, if any, on the Global Note
shall be made in accordance with the provisions of Section 2.3 hereof.
The terms and provisions contained in the form of Global Note attached as
Exhibit A hereto shall constitute, and are hereby expressly made, a part of this
Indenture and to the extent applicable, 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.
Section 2.3 Date and Denomination of Notes; Payments of Principal and Interest.
------------------------------------------------------------------
The Notes shall be issuable in registered form only without coupons in
denominations of $25 principal amount and integral multiples thereof. Every Note
shall be dated the date of its authentication, shall be repaid in equal
quarterly installments of principal and shall bear interest on the outstanding
principal balance from February 28, 2003 as provided in the Global Note.
Principal and interest shall be first payable on May 31, 2003 and then quarterly
on each August 31, November 30, February 28, and May 31 (each a "payment date")
as specified on the face of the form of Global Note, attached as Exhibit A
hereto.
The Trustee shall apply such principal payments to the reduction of the
principal amount outstanding under the Global Note and shall direct the
Depository and Custodian to record such reduction in principal on the Global
Note.
The person in whose name any Note (or its Predecessor Note) is registered
at the close of business on any record date with respect to any Payment Date
(including any Note that is transferred or exchanged after the record date and
on or before the Payment Date) shall be entitled to receive the principal and
interest payable on Payment Date notwithstanding the cancellation of such Note
upon any transfer or exchange subsequent to the record date and prior to such
Payment Date. Principal and interest may, at the option of the Company, be paid
by check mailed to the address of such person as it appears on the Note
register; provided that, with respect to any holder of Notes with an aggregate
principal amount equal to or in excess of $5,000,000, at the request (such
request to include appropriate wire instructions) of such holder in writing to
the Trustee on or before the record date preceding any Payment Date, principal
and interest on such holder's Notes shall be paid by wire transfer in
immediately available funds. The term "record date" with respect to any Payment
Date (except as otherwise provided herein for Defaulted Interest) shall mean the
15th day of the month in which such Payment Date occurs.
None of the Company, the Trustee or any paying agent shall have any
responsibility or liability for any aspect of the records relating to or payment
made on account of beneficial ownership interests in the Global Note or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Interest on the Notes shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
Any interest on any Note that is payable, but is not punctually paid or
duly provided for, on any said May 31, August 31, November 30 or February 28
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Noteholder on the relevant record date by virtue of his having been such
Noteholder; and such Defaulted Interest shall be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the persons in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on a special record date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
to be paid on each Note and the date of the payment (which shall be not less
than 25 days after the receipt by the Trustee of such notice, unless the Trustee
shall consent to an earlier date), and at the same time, the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
persons entitled to such Defaulted Interest as in this clause provided.
Thereupon, the Trustee shall fix a special record date for the payment of such
Defaulted Interest, which shall be not more than 15 days and not less than 10
days prior to the date of the payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at
the expense of the Company, shall cause notice of the payment of such Defaulted
Interest and the special record date therefor to be mailed, first-class postage
prepaid, to each Noteholder at his address as it appears in the Note register,
not less than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor having
been so mailed, such Defaulted Interest shall be paid to the persons in whose
names the Notes (or their respective Predecessor Notes) were registered at the
close of business on such special record date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Section 2.4 Execution of Notes.
------------------
The Notes shall be signed in the name and on behalf of the Company by the
signature of its Chief Executive Officer, President, Chief Operating Officer or
Chief Financial Officer and attested by the signature of its Treasurer,
Secretary or any of its Assistant Secretaries (any of which signatures may be
printed, engraved or otherwise reproduced thereon, by facsimile or otherwise).
Only such Notes as shall bear thereon a certificate of authentication
substantially in the form set forth on the form of Note attached as Exhibit A
hereto, manually executed by the Trustee (or an authenticating agent appointed
by the Trustee as provided by Section 13.11), shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee (or such an authenticating agent) upon any Note executed by the
Company shall be conclusive evidence that the Note so authenticated has been
duly authenticated and delivered hereunder and that the holder is entitled to
the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the Notes
shall cease to be such officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
Section 2.5 Exchange and Transfer of Notes; Restrictions on Transfer;
Depository.
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Any exchange or transfer of all or a part of the Global Note for definitive
Notes pursuant to this Section 2.5 must be accompanied by a supplemental
indenture that shall include the form of such definitive Notes. Except as
otherwise expressly provided herein, the Global Note may not be exchanged for
definitive Notes.
(a) The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company designated pursuant to Section 4.2 being herein
sometimes collectively referred to as the "Note register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the transfers of Notes. Such Note register shall be in written form or in any
form capable of being converted into written form within a reasonable period of
time. The Trustee is hereby appointed "Note registrar" for the purpose of
transfers of Notes as herein provided. The Company may appoint one or more
co-registrars. The Global Note shall be registered in the name of Cede & Co.
Inc. as designee of The Depository unless exchanged as expressly provided for
herein.
Subject to the first paragraph of Section 2.5:
upon surrender for registration of transfer of any Note to the
Note registrar or any co-registrar and satisfaction of the requirements
for such transfer set forth in this Section 2.5, the Company shall
execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one
or more new Notes of any authorized denominations and of a like
aggregate principal amount may be required by Section 2.5(c).
notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon surrender
of the Notes to be exchanged at any such office or agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and make available for delivery, the
Notes that the Noteholder making the exchange is entitled to receive
bearing certificate numbers not contemporaneously outstanding.
all Notes presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the
Trustee, the Note registrar or any co-registrar) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory
to the Company, executed by the Noteholder thereof or his attorney duly
authorized in writing.
no service charge shall be charged to the Noteholder for any
exchange or registration of transfer of Notes, but the Company may
require payment of a sum sufficient to cover any tax, assessments or
other governmental charges that may be imposed in connection therewith.
none of the Company, the Trustee or the Depository, the Note
registrar or any co-registrar shall be required to exchange or register
a transfer of (a) any Notes for a period of 15 days next preceding the
mailing of a notice of redemption, (b) any Notes called for redemption
or, if a portion of any Note is selected or called for redemption, such
portion thereof selected or called for redemption, or (c) any Notes
surrendered for repurchase pursuant to Section 3.5 or, if a portion of
any Note is surrendered for repurchase pursuant to Section 3.5, such
portion thereof surrendered for repurchase pursuant to Section 3.5.
all Notes issued upon any transfer or exchange of Notes shall
be the valid obligations of the Company, evidencing the same debt and
entitled to the same benefits under this Indenture as the Notes
surrendered upon such registration of transfer or exchange. All Notes,
the transfer and/or exchange of which is effectuated by the Trustee
pursuant to this Section 2.5, shall be accompanied by an Officers'
Certificate of the Company certifying that such transfer, exchange
and/or registration is authorized by the Company and permitted
hereunder.
any transfer of a definitive Note or Notes must be effected by
the delivery to the transferee (or its nominee) of a definitive Note or
Notes registered in the name of the transferee (or its nominee) on the
books maintained by the Trustee. With respect to any such transfer, the
Company shall execute and the Trustee shall authenticate and make
available for delivery to the transferee (or such transferee's nominee,
as the case may be), a definitive Note or Notes in the appropriate
aggregate principal amount in the name of such transferee (or its
nominee) and bearing such restrictive legends as may be required by
this Indenture.
(b) Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in this Section 2.5(b)), the 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.
The Depository shall be a clearing agency registered under the Exchange
Act. The Company initially appoints the Depository Trust Company to act as
Depository with respect to the Global Note. The Global Note shall be issued to
the Depository, registered in the name of Cede, as the nominee of the
Depository, and shall not be exchanged or transferred except as expressly
provided for herein and shall be deposited with the Trustee as Custodian for
Cede.
Neither the Company nor the Trustee (or any registrar, paying agent or
conversion agent under this Indenture) shall have responsibility for the
performance by the Depository or its participants or indirect participants of
its respective obligations under the rules and procedures governing its
operations. The Depository will take any action permitted to be taken by a
holder of Notes (including, without limitation, the presentation of Notes for
exchange as described below) only at the direction of one or more participants
to whose account with the Depository interests in the Global Note are credited,
and only in respect of the principal amount of the Notes represented by the
Global Note as to which such participant or participants has or have given such
direction.
If at any time the Depository for the Global Note notifies the Company that
it is unwilling or unable to continue as Depository for such Notes, the Company
may appoint a successor Depository with respect to such Notes. If a successor
Depository for the Notes is not appointed by the Company within 90 days after
the Company receives such notice, the Company shall execute, and the Trustee,
upon receipt of an Officers' Certificate for the authentication and delivery of
Notes, shall authenticate and make available for delivery, Notes in definitive
form, in an aggregate principal amount equal to the principal amount of the
Global Note in exchange for the Global Note.
Definitive Notes issued in exchange for all or a part of the Global Note
pursuant to this Section 2.5(b) shall be registered in such names and in such
authorized denominations as the Depository, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. Upon
execution and authentication, the Trustee shall make available for delivery such
definitive Notes to the persons in whose names such definitive Notes are so
registered.
At such time as all interest in the principal, premium, if any, and
interest of the Global Note has been paid, redeemed, repurchased or canceled,
the Global Note shall be, upon receipt thereof, canceled by the Trustee in
accordance with standing procedures and instructions existing between the
Depository and the Custodian. At any time prior to such cancellation, if any
interest in the principal, premium, if any, and interest of the Global Note is
paid, exchanged for definitive Notes, redeemed, repurchased, converted, canceled
or transferred to a transferee who receives definitive Notes therefor or any
definitive Note is exchanged or transferred for part of the Global Note, the
principal amount of the Global Note shall, in accordance with the standing
procedures and instructions existing between the Depository and the Custodian,
be reduced or increased, as the case may be, and an endorsement shall be made on
the Global Note by the Trustee or the Custodian, at the direction of the
Trustee, to reflect such reduction or increase.
The Company and the Trustee may for all purposes, including the making of
payments due on the Notes, deal with the Depository as the authorized
representative of the Noteholders for the purposes of exercising the rights of
Noteholders hereunder. The rights of the owner of any beneficial interest in the
Global Note shall be limited to those established by law and agreements between
such owners and depository participants; provided that no such agreement shall
give any rights to any person against the Company or the Trustee without the
written consent of the parties so affected. Multiple requests or directions from
and votes of the Depository, as holder of notes in book-entry form with respect
to any particular matter, shall not be deemed inconsistent to the extent they do
not represent an amount of notes in excess of those held in the name of the
Depository or its nominee.
(c) Each holder or former holder of a Note agrees to indemnify the
Company and the Trustee against any liability that may result from the transfer,
exchange or assignment of such holder's or former holder's Note in violation of
any provision of this Indenture and/or applicable U.S. federal or state
securities law.
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes.
------------------------------------------
In case any Note shall become mutilated or be destroyed, lost or stolen,
the Company in its discretion may execute, and upon its request, the Trustee or
an authenticating agent appointed by the Trustee shall authenticate and make
available for delivery a new Note bearing a number not contemporaneously
outstanding in exchange and substitution for the mutilated Note or in lieu of
and in substitution for the Note so destroyed, lost or stolen. The Company may
charge such applicant for the expenses of the Company in replacing a Note. In
every case the applicant for a substituted Note shall furnish to the Company, to
the Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless from any
loss, liability, cost or expense caused by or connected with such substitution,
and in every case of destruction, loss or theft, the applicant shall also
furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or
theft of such Note and of the ownership thereof.
The Trustee or such authenticating agent may authenticate any such
substituted Note and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such authenticating
agent may require. Upon the issuance of any substituted Note, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith. In case any Note that has matured or is about to mature or has been
called for redemption or is about to be repurchased shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Note, pay or authorize the payment of the same (without surrender thereof,
except in the case of a mutilated Note), as the case may be, if the applicant
for such payment shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless from any loss, liability, cost or
expense caused by or connected with such substitution, and in case of
destruction, loss or theft, evidence satisfactory to the Company, the Trustee
and, if applicable, any paying agent of the destruction, loss or theft of such
Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section 2.6
in lieu of any Note that is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note shall be enforceable by anyone, and shall be entitled to all
the benefits of (but shall be subject to all the limitations set forth in) this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder. To the extent permitted by law, all Notes shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment or conversion of mutilated, destroyed,
lost or stolen Notes and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment or conversion of negotiable
instruments or other securities without their surrender.
Section 2.7 Temporary Notes.
---------------
If definitive Notes are to be issued as provided herein, pending the
preparation of such definitive Notes, the Company may execute and the Trustee or
an authenticating agent appointed by the Trustee shall, upon written request of
the Company, authenticate and make available for delivery temporary Notes
(printed or lithographed). Temporary Notes shall be issuable in any authorized
denomination and shall be substantially in the form of the definitive Notes but
with such omissions, insertions and variations as may be appropriate for
temporary Notes, all as may be determined by the Company. Every such temporary
Note shall be executed by the Company and authenticated by the Trustee or such
authenticating agent upon the same conditions and in substantially the same
manner, and with the same effect, as the definitive Notes. Without unreasonable
delay the Company shall execute and deliver to the Trustee or such
authenticating agent definitive Notes (other than in the case of Notes in global
form) and thereupon any or all temporary Notes (other than the Global Note) may
be surrendered in exchange therefor, at each office or agency maintained by the
Company pursuant to Section 4.2 and the Trustee or such authenticating agent
shall authenticate and make available for delivery in exchange for such
temporary Notes an equal aggregate principal amount of definitive Notes. Such
exchange shall be made by the Company at its own expense and without any charge
therefor. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits and subject to the same limitations under this
Indenture as definitive Notes authenticated and delivered hereunder.
Section 2.8 Cancellation of Notes Paid, Etc.
-------------------------------
All Notes surrendered for the purpose of payment, redemption, repurchase,
exchange or registration of transfer shall, if surrendered to the Company or any
paying agent or any Note registrar or any conversion agent, be surrendered to
the Trustee and promptly canceled by it or, if surrendered to the Trustee, shall
be promptly canceled by it and no Notes shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Indenture. If required
by the Company, the Trustee shall return canceled Notes to the Company. If the
Company shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Notes unless
and until the same are delivered to the Trustee for cancellation.
Section 2.9 Cusip Numbers.
--------------
The Company in issuing the Notes may use "CUSIP" numbers (if then generally
in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE III
REDEMPTION AND REPURCHASE OF NOTES
Section 3.1 Redemption Prices.
-----------------
The Notes are redeemable at the option of the Company at any time at the
Company's option, upon notice as set forth in Section 3.2, in whole at any time
or in part from time to time, at the redemption price of 100% of principal
amount of Notes plus accrued and unpaid interest.
Section 3.2 Notice of Redemption; Selection of Notes.
----------------------------------------
In case the Company shall desire to exercise the right to redeem all or, as
the case may be, any part of the Notes pursuant to Section 3.1, it shall fix a
date for redemption and, in the case of any redemption pursuant to Section 3.1,
it or, at its written request accompanied by the proposed form of notice of
redemption (which must be received by the Trustee at least 45 days or, if the
Note is issued solely as a Global Note, at least 20 days prior to the date fixed
for redemption, unless a shorter period is agreed to by the Trustee or as
otherwise required by the Depository), the Trustee in the name of and at the
expense of the Company, shall mail or cause to be mailed a notice of such
redemption at least 30 and not more than 60 days or, if the Note is issued
solely as a Global Note, at least 10 and not more than 15 days or as otherwise
required by the Depository or law, prior to the date fixed for redemption to the
holders of Notes so to be redeemed as a whole or in part at their last addresses
as the same appear on the Note register, provided that subject to the approval
of the form of notice by the Trustee if the Company shall give such notice, it
shall also give such notice, and notice of the Notes to be redeemed, to the
Trustee. Any such notice shall reflect that the Company has agreed to deposit
with the Trustee on or prior to the date fixed for redemption an amount
sufficient to redeem the principal amount of the Notes called for redemption and
all interest accrued thereon up to the date fixed for redemption. Such mailing
shall be by first class mail. The notice, if mailed in the manner herein
provided, shall be conclusively presumed to have been duly given, whether or not
the holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the holder of any Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note.
Each such notice of redemption shall identify the Notes to be redeemed
(including CUSIP numbers), specify the aggregate principal amount of Notes to be
redeemed, the date fixed for redemption, the redemption price at which Notes are
to be redeemed, the place or places of payment, that payment shall be made upon
presentation and surrender of such Notes, that interest accrued to the date
fixed for redemption shall be paid as specified in said notice and that on and
after said date, interest thereon or on the portion thereof to be redeemed shall
cease to accrue. If fewer than all the Notes are to be redeemed, the notice of
redemption shall identify the Notes to be redeemed. In case any Note is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof shall be issued.
On or prior to the Business Day prior to the redemption date specified in
the notice of redemption given as provided in this Section 3.2, the Company
shall deposit by 11:00 A.M. Eastern Time with the Trustee or with one or more
paying agents (or, if the Company is acting as its own paying agent, set aside,
segregate and hold in trust as provided in Section 4.4) an amount of money
sufficient to redeem on the redemption date all the Notes so called for
redemption at the appropriate redemption price, together with accrued interest
to the date fixed for redemption. If fewer than all the Notes are to be
redeemed, the Company shall give the Trustee written notice in the form of an
Officers' Certificate not fewer than 15 days (or such shorter period of time as
may be acceptable to the Trustee) prior to the redemption date as to the
aggregate principal amount of Notes to be redeemed.
If fewer than all the Notes are to be redeemed, the Trustee shall select
the Notes or portions thereof to be redeemed (in principal amounts of $25 or
integral multiples thereof), by lot or, in its discretion, on a PRO RATA basis;
provided, however, that as long as the Notes are issued in global form, such
Notes shall be redeemed in accordance with the procedures established by the
Depository. The Notes (or portions thereof) so selected shall be deemed duly
selected for redemption for all purposes hereof.
Section 3.3 Payment of Notes Called for Redemption.
--------------------------------------
If notice of redemption has been given as above provided, the Notes or
portion of Notes with respect to which such notice has been given shall become
due and payable on the date and at the place or places stated in such notice at
the applicable redemption price, together with interest thereon accrued to the
date fixed for redemption subject to the provision in the last sentence of this
paragraph, and on and after said date (unless the Company shall default in the
payment of such Notes at the redemption price, together with interest thereon
accrued to said date), interest on the Notes or portion of Notes so called for
redemption shall cease to accrue, and, except as provided in Sections 7.6 and
11.3, to be entitled to any benefit or security under this Indenture, and the
holders thereof shall have no right in respect of such Notes except the right to
receive the redemption price thereof and unpaid interest thereon to the date
fixed for redemption. On presentation and surrender of such Notes at a place of
payment in said notice specified, the said Notes or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption;
provided that any quarterly payment of principal and interest becoming due on
the date fixed for redemption shall be payable to the holders of such Notes
registered as such on the relevant record date subject to the terms and
provisions of Section 2.3 hereof.
Upon presentation of any Note redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new Note or Notes, of
authorized denominations, in principal amount equal to the unredeemed portion of
the Notes so presented.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, such Note shall be deemed to remain outstanding and the
principal and premium, if any, shall, until paid or duly provided for, bear
interest from the date fixed for redemption at the rate borne by the Note until
the principal, interest and premium, if any, shall have been paid or duly
provided for.
Section 3.4 Repurchase of Notes upon a Change of Control.
--------------------------------------------
(a) If a Change of Control shall occur at any time, then each holder of
Notes shall have the right to require that the Company repurchase such holder's
Notes in whole or in part in integral multiples of $25 at a purchase price (the
"Change of Control Purchase Price") in cash in an amount equal to 101% of the
remaining outstanding principal balance of such Notes, plus accrued and unpaid
interest thereon, if any, to the purchase date (the "Change of Control Purchase
Date") pursuant to the offer described below (the "Change of Control Offer") and
in accordance with the other procedures set forth in this Indenture.
(b) Within 30 days following any Change of Control, the Company shall
publish a notice in the Wall Street Journal, notify the Trustee thereof and give
written notice of such Change of Control to each holder of Notes, by first-class
mail, postage prepaid, at the Noteholder's address appearing in the Note
register, stating, among other things, (i) that a Change of Control has
occurred, (ii) the Change of Control Purchase Price, (iii) the Change of Control
Purchase Date (which shall be a Business Day no earlier than 30 days nor later
than 60 days from the date such notice is mailed, or such later date as is
necessary to comply with requirements under the Exchange Act), (iv) that any
Note not tendered shall continue to accrue interest and to have all of the
benefits of this Indenture, (v) that, unless the Company defaults in the payment
of the Change of Control Purchase Price, any Notes accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date, (vi) that Noteholders electing to have any Notes
purchased pursuant to a Change of Control Offer shall be required to surrender
the Notes, with the form entitled "Option of Noteholder to Elect Purchase" on
the reverse of the Notes completed, to the Company at the address specified in
the notice prior to the close of business on the third Business Day preceding
the Change of Control Purchase Date, (vii) that Noteholders shall be entitled to
withdraw their election if the Company receives, not later than the close of
business on the second Business Day preceding the Change of Control Purchase
Date, a telegram, telex, facsimile transmission or letter setting forth the name
of the Noteholder, the principal amount of Notes delivered for purchase, and a
statement that such Noteholder is withdrawing his election to have such Notes
purchased, and (viii) that Noteholders whose Notes are being purchased only in
part shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be equal to $25
in principal amount or an integral multiple thereof. The Company shall comply
with the requirements of Rule 13e-4 and 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes in
connection with a Change of Control.
(c) On the Change of Control Purchase Date, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Trustee in
immediately available funds by 11:00 A.M. Eastern Time an amount equal to the
Change of Control Purchase Price in respect of all Notes or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof tendered to the Company. The Trustee shall promptly mail to each
Noteholder of Notes so accepted payment in an amount equal to the purchase price
of such Notes, and the Trustee shall promptly authenticate and mail to each
Noteholder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each such new Note shall be in a
principal amount of $25 or an integral multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
(d) The term "Change in Control" shall mean an event or series of
events in which (i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) acquires "beneficial ownership" (as
determined in accordance with Rule 13d-3 under the Exchange Act), directly or
indirectly, of more than 50% of the total Voting Stock of the Company whether by
purchase tender, merger or otherwise; provided, however, that any such person or
group shall not be deemed to be the beneficial owner of, or to beneficially own,
any Voting Stock tendered in a tender offer until such tendered Voting Stock is
accepted for purchase under the tender offer; or all or substantially all of the
assets of the Company are sold, exchanged or otherwise is transferred to such
person or group (other than any pledges or transfers made in connection with the
securitization of the Company's assets.)
(e) "Voting Stock" means stock of the class or classes pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of a corporation (irrespective whether or not at the time stock of
any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.1 Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees that it shall duly and punctually pay or
cause to be paid the principal of and premium, if any, and interest on each of
the Notes at the places, at the respective times and in the manner provided
herein and in the Notes. Any amounts of cash to be given to the Trustee or
paying agent shall be deposited with the Trustee or paying agent in immediately
available funds by 11:00 A.M. Eastern Time. Each installment of principal and
interest on the Notes due on any quarterly Payment Date may be paid by mailing
checks for the amounts payable to or upon the written order of the holders of
Notes entitled thereto as they shall appear on the Note register; provided that,
with respect to any holder of Notes with an aggregate principal amount equal to
or in excess of $5,000,000, at the request (such request to include appropriate
wire instructions) of such holder in writing to the Trustee, principal and
interest on such holder's Notes shall be paid by wire transfer in immediately
available funds. An installment of principal or interest shall be considered
paid on the date due if the Trustee or paying agent (other than the Company, a
Subsidiary of the Company or any Affiliate of any of them) holds on that date
money designated for and sufficient to pay the installment of principal or
interest and is not prohibited from paying such money to the holders of the
Notes pursuant to the terms of this Indenture.
Section 4.2 Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in Richmond, Virginia, an office or agency,
which may be an office or agency of the Trustees where the Notes may be
surrendered for registration of transfer or exchange or for presentation for
payment or for redemption or repurchase 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 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.
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. 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 initially designates the Trustee as paying agent, Note
registrar and the Corporate Trust Office of the Trustee, as offices or agencies
of the Company for the purposes set forth in the first paragraph of this Section
4.2.
So long as the Trustee is the Note registrar, the Trustee agrees to mail,
or cause to be mailed, the notices set forth in Section 7.11(a).
Section 4.3 Appointments to Fill Vacancies in Trustee's Office.
--------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, shall appoint, in the manner provided in Section 7.11, a Trustee, so
that there shall at all times be a Trustee hereunder.
Section 4.4 Provisions as to Paying Agent.
-----------------------------
(a) If the Company shall appoint a paying agent other than the Trustee,
or if the Trustee shall appoint such a paying agent, the Company or the Trustee,
as the case may be, shall cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 4.4:
(1) that it shall hold all sums held by it as such agent for
the payment of the principal of, premium, if any, or interest on the Notes
(whether such sums have been paid to it by the Company or by any other obligor
on the Notes) in trust for the benefit of the holders of the Notes;
(2) that it shall give the Trustee written notice of any
failure by the Company (or by any other obligor on the Notes) to make any
payment of the principal of, premium, if any, or interest on the Notes when the
same shall be due and payable; and
(3) that at any time during the continuance of an Event of
Default, upon request of the Trustee, it shall forthwith pay to the Trustee all
sums so held in trust.
The Company shall, before each due date of the principal of, premium, if
any, or interest on the Notes, deposit with the paying agent a sum sufficient to
pay such principal, premium, if any, or interest, and (unless such paying agent
is the Trustee) the Company shall promptly notify the Trustee of any failure to
take such action.
(b) If the Company shall act as its own paying agent, it shall, on or
before each due date of the principal of, premium, if any, or interest on the
Notes, set aside, segregate and hold in trust for the benefit of the holders of
the Notes a sum sufficient to pay such principal, premium, if any, or interest
so becoming due and shall notify the Trustee of any failure to take such action
and of any failure by the Company (or any other obligor under the Notes) to make
any payment of the principal of, premium, if any, or interest on the Notes when
the same shall become due and payable.
(c) Anything in this Section 4.4 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any paying agent hereunder
as required by this Section 4.4, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any paying agent
to the Trustee, the Company or such paying agent shall be released from all
further liability with respect to such sums.
(d) Anything in this Section 4.4 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.4 is subject to
Sections 11.3 and 11.4.
Section 4.5 Corporate Existence.
-------------------
Subject to Article X, 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
of the Company, 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 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 materially adverse to the holders of the Notes.
Section 4.6 Stay, Extension and Usury Laws.
------------------------------
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of or interest on the Notes as contemplated herein, wherever enacted,
now or at any time hereafter in force, or that may affect the covenants or the
performance of this Indenture; and the Company (to the extent it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it 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 4.7 Compliance Statement; Notice of Defaults.
----------------------------------------
(a) The Company shall deliver to the Trustee within 120 days after the
end of each fiscal year of the Company an Officers' Certificate stating whether
or not to the best knowledge of the signers thereof the Company is in compliance
(without regard to periods of grace or notice requirements) with all conditions
and covenants under this Indenture, and if the Company shall not be in
compliance, specifying such non-compliance and the nature and status thereof of
which such signer may have knowledge.
(b) The Company shall file with the Trustee written notice of the
occurrence of any default or Event of Default within ten days of its becoming
aware of any such default or Event of Default.
Section 4.8 Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries.
---------------------------------------------------------------
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction on the ability of any
Subsidiary to (i) pay dividends or make any other distribution on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, or pay any indebtedness owed to, the Company or a Subsidiary of the
Company, (ii) make loans or advances to the Company or any Subsidiary of the
Company, or (iii) transfer any of its properties or assets to the Company other
than any Subsidiary other than in each case any encumbrance or restriction
relating to the securitization of the assets of the Company or Subsidiary
consistent with past practice.
Section 4.9 Taxes.
-----
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon the Company or its Subsidiaries
or upon the income, profits or property of the Company or any such Subsidiary
and (ii) all lawful claims for labor, materials and supplies that, if unpaid,
might by law become a lien upon the property of the Company or any such
Subsidiary; provided that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which disputed amounts adequate reserves have
been made.
Section 4.10 Insurance.
---------
The Company shall provide, or cause to be provided, for itself and its
Subsidiaries, insurance (including appropriate self-insurance) against loss or
damage of the kinds customarily insured against by corporations similarly
situated and owning like properties, including, but not limited to, products
liability insurance and public liability insurance, with reputable insurers or
with the government of the United States of America or an agency or
instrumentality thereof, in such amounts with such deductibles and by such
methods as shall be determined in good faith by the Board of Directors to be
appropriate.
Section 4.11 Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make any Restricted Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Restricted Payment; and
(b) the aggregate amount of all such Restricted Payments does not
exceed the sum of (i) the cumulative real estate investment trust taxable income
of the Company earned for the tax years ended after December 31, 2001, as
determined by Section 857(b)(2) of the Code, without giving effect to the
dividends paid deduction defined in Section 561 of the Code and (ii) One
Million Dollars ($1,000,000).
The provisions of this covenant shall not prohibit any distribution by the
Company which is necessary to maintain the Company's status as a real estate
investment trust under the Code.
Section 4.12 Limitations on Transactions with Affiliates.
-------------------------------------------
The Company shall not, and shall not permit any of its Subsidiaries to,
conduct any business or enter into any transactions or series of transactions
with or for the benefit of any of its Affiliates (each, an "Affiliate
Transaction"), except in good faith and on terms that are, in the aggregate, no
less favorable to the Company or such Subsidiary, as the case may be, than those
that could have been obtained in a comparable transaction on an arm's-length
basis from a Person who is not such an Affiliate. All Affiliate Transactions
(and each series of related Affiliate Transactions which are a part of a common
plan) involving aggregate payments or other market value in excess of $3
million, shall be approved unanimously by the Board of Directors of the Company,
such approval to be evidenced by a board resolution stating that such directors
have, in good faith, determined that such transactions or related transactions
comply with the foregoing provision; and if the Company or any Subsidiary of the
Company enters into an Affiliate Transaction (or a series of related Affiliate
Transactions which are part of a common plan) involving aggregate payments or
market value in excess of $5 million, the Company or such Subsidiary shall,
prior to the consummation thereof, obtain a favorable opinion as to the fairness
of such transaction or related transactions from an independent financial
advisor and file the same with the Trustee; provided that this sentence shall
not be applicable with respect to sales or purchases of products or services by
the Company or from its Affiliates in the ordinary course of business on terms
similar to those that could have been obtained in a comparable transaction on an
arms-length basis from a Person who is not such an Affiliate. Notwithstanding
the foregoing, the restrictions set forth in this covenant shall not apply to
(i) customary directors' fees and (ii) customary fees or transactions by and
among the Company and its wholly owned Subsidiaries.
ARTICLE V
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY
Section 5.1 Noteholders' Lists.
------------------
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 Notes, the Company and the Trustee, and shall otherwise comply with
Trust Indenture Act Section 312(a). If the Trustee is not the Notes registrar,
the Company shall furnish to the Trustee on or before at least seven Business
Days preceding 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
reasonably may require of the names and addresses of holders of Notes, and the
Company shall otherwise comply with Trust Indenture Act Section 312(a).
Section 5.2 Reports by Company.
------------------
The Company shall deliver to the Trustee within 15 days after it files the
same with the Commission, copies of all reports and information (or copies of
such portions of any of the foregoing as the Commission may by its rules and
regulations prescribe), if any, which the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act or pursuant to
the immediately following sentence. So long as the Notes remain listed on the
American Stock Exchange, the Company shall file with the Commission such reports
as may be required pursuant to Section 13 of the Exchange Act in respect of a
security registered pursuant to Section 12 of the Exchange Act, regardless of
whether the Company is otherwise required to file such reports. If the Company
is not subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act (or otherwise required to file reports pursuant to the immediately
preceding sentence) and so long as at least Three Million Dollars ($3,000,000)
in aggregate principal amount of Notes remain outstanding, the Company shall
deliver to the Trustee, within 15 days after it would have been required to file
such information with the Commission were it required to do so, annual and
quarterly financial statements, including any notes thereto (and, in the case of
a fiscal year end, an auditors' report by an independent certified public
accounting firm of established national reputation), and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations," in
each case substantially equivalent to that which it would have been required to
include in such quarterly or annual reports, information, documents or other
reports if it had been subject to the requirements of Section 13 or 15(d) of the
Exchange Act. The Company shall provide copies of the foregoing materials to the
Noteholders to the extent required by the Trust Indenture Act once this
Indenture has been qualified. The Company shall also comply with the other
provisions of the Trust Indenture Act Section 314(a).
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
-----------------
In case one or more of the following Events of Default (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body) shall have occurred and be continuing:
(a) default in the payment of the principal of or premium, if any, on
the Notes when due at maturity, upon a payment date or upon redemption or
otherwise, including failure by the Company to purchase the Notes when required
under Section 3.5; or
(b) default in the payment of any installment of interest on the Notes
as and when the same shall become due and payable and continuance of such
default for a period of 30 days; or
(c) a failure on the part of the Company to duly observe or perform any
other covenants or agreements on the part of the Company in this Indenture
(other than a default in the performance or breach of a covenant or agreement
that is specifically dealt with elsewhere in this Section 6.1) that continues
for a period of 90 days after the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the Company
by the Trustee, or to the Company and a Responsible Officer of the Trustee, by
the holders of at least 25% in aggregate principal amount of the Notes at the
time outstanding determined in accordance with Section 8.4; or
(d) an event of default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Subsidiaries), other than any non-recourse indebtedness, whether such
indebtedness or guarantee now exists or shall be created after the date hereof,
which default (i) is caused by a failure to pay principal or interest on such
indebtedness prior to the expiration of the grace period provided in such
indebtedness (a "Payment Default") or (ii) results in the acceleration of such
indebtedness prior to its expressed maturity and, in each case, the principal
amount of such indebtedness, together with the principal amount of any other
such indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $25,000,000 or more;
(e) final judgments or decrees shall be entered by a court of competent
jurisdiction against the Company or any Subsidiary involving liabilities of
$40,000,000 or more (singly or in the aggregate) (after deducting the portion of
such liabilities accepted by a reputable insurance company) and such final
judgments or decrees shall not have been vacated, discharged, satisfied or
stayed pending appeal within 60 days from the entry thereof;
(f) the Company shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect, or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it or shall make a general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due; or
(g) an involuntary case or other proceeding shall be commenced against
the Company seeking liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 consecutive days;
then, and in each and every such case (other than an Event of Default
specified in Section 6.1(f) or (g)), unless the principal of all of the Notes
shall have already become due and payable, either the Trustee or the holders of
not less than 25% in aggregate principal amount of the Notes then outstanding
hereunder determined in accordance with Section 8.4, by notice in writing to the
Company (and to the Trustee if given by Noteholders), may declare the principal
of, premium, if any, on the Notes and the interest accrued thereon to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the Notes
contained to the contrary notwithstanding. If an Event of Default specified in
Section 6.1(f) or (g) occurs and is continuing, the principal of all the Notes
and the interest accrued thereon shall be immediately due and payable. The
foregoing provision is subject to the conditions that if, at any time after the
principal of the Notes shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all Notes and the principal of and premium, if any, on any and all
Notes that shall have become due otherwise than by acceleration (with interest
on overdue installments of interest (to the extent that payment of such interest
is enforceable under applicable law) and on such principal and premium, if any,
at the rate borne by the Notes, to the date of such payment or deposit) and
amounts due to the Trustee pursuant to Section 7.7, and if any and all defaults
under this Indenture, other than the nonpayment of principal of, premium, if
any, and accrued interest on Notes that shall have become due by acceleration,
shall have been cured or waived pursuant to Section 6.7, then and in every such
case the holders of a majority in aggregate principal amount of the Notes then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults or Events of Default and rescind and annul such declaration and its
consequences; but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or Event of Default, or shall impair any
right consequent thereto. The Company shall notify a Responsible Officer of the
Trustee, promptly upon becoming aware thereof, of any Event of Default.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such waiver or rescission and annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the holders of Notes and the Trustee shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the holders of Notes and the Trustee shall continue as
though no such proceeding had been taken.
Section 6.2 Payments of Notes on Default; Suit Therefor.
-------------------------------------------
The Company covenants that (a) in case a default shall be made in the
payment of any installment of interest upon any of the Notes as and when the
same shall become due and payable, and such default shall have continued for a
period of 30 days, or (b) in case default shall be made in the payment of the
principal of or premium, if any, on any of the Notes as and when the same shall
have become due and payable, whether upon a Payment Date, at maturity of the
Notes or in connection with any redemption or repurchase, by declaration or
otherwise, then, upon demand of the Trustee, the Company shall pay to the
Trustee, for the benefit of the holders of the Notes, the whole amount that then
shall have become due and payable on all such Notes for principal of, premium,
if any, or interest, or both, as the case may be, with interest upon the overdue
principal, premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest at
the rate borne by the Notes; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any expenses or liabilities incurred by the Trustee hereunder other than through
its negligence or willful misconduct. Until such demand by the Trustee, the
Company may pay the principal of and premium, if any, and interest on the Notes
to the registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes
and collect in the manner provided by law out of the property of the Company or
any other obligor on the Notes wherever situated the monies adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Notes under Title 11
of the United States Code or any other applicable law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Company or such other obligor, the property of the Company or such other
obligor, or in the case of any other judicial proceedings relative to the
Company or such other obligor upon the Notes, or to the creditors or property of
the Company or such other obligor, the Trustee, irrespective of whether the
principal of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 6.2, shall be entitled and
empowered, by intervention in such proceedings or otherwise, subject to the
rights of the Trustee under Section 7.3 and 7.7 hereof, to file and prove a
claim or claims for the whole amount of principal, premium, if any, and interest
owing and unpaid in respect of the Notes and, in case of any judicial
proceedings, 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 and of the
Noteholders allowed in such judicial proceedings relative to the Company or any
other obligor on the Notes, its or their creditors, or its or their property and
to collect and receive any monies or other property payable or deliverable on
any such claims and to distribute the same after the deduction of any amounts
due the Trustee under Section 7.7; and any receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, custodian or similar official is
hereby authorized by each of the Noteholders 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 Noteholders, to pay to the Trustee any amount due it
for reasonable compensation, expenses, advances and disbursements, including
counsel fees incurred by it up to the date of such distribution. To the extent
that such payment of reasonable compensation, expenses, advances and
disbursements out of the estate in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid out
of, any and all distributions, dividends, monies, securities and other property
that the holders of the Notes may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or adopt on behalf of any Noteholder any plan of
reorganization or arrangement affecting the Notes or the rights of any
Noteholder, or to authorize the Trustee to vote in respect of the claim of any
Noteholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Notes, may be enforced by the Trustee without the possession of any
of the Notes or the production thereof on any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the holders of the Notes.
In any proceedings brought by the Trustee pursuant to this Indenture or any
supplement hereto (and in any proceedings involving the interpretation of any
provision of this Indenture to which the Trustee shall be a party), the Trustee
shall be held to represent all the holders of the Notes, and it shall not be
necessary to make any holders of the Notes parties to any such proceedings.
Section 6.3 Application of Monies Collected by Trustee.
------------------------------------------
Any monies collected by the Trustee pursuant to this Article VI shall be
applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such monies, upon presentation of the several Notes and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.7;
Second: In case the principal of the outstanding Notes shall not have
become due and be unpaid, to the payment of interest on the Notes in default in
the order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the rate borne by the Notes, such payments
to be made ratably to the persons entitled thereto; and
Third: In case the principal of the outstanding Notes shall have become
due, by declaration or otherwise, and be unpaid, to the payment of the whole
amount then due and unpaid upon the Notes for principal, premium, if any, and
interest, with interest on the overdue principal and premium, if any, and (to
the extent that such interest has been collected by the Trustee) upon overdue
installments of interest at the rate borne by the Notes; and in case such monies
shall be insufficient to pay in full the whole amounts so due and unpaid upon
the Notes, then to the payment of such principal, premium, if any, and interest
without preference or priority of principal and premium, if any, over interest,
or of interest over principal and premium, if any, or of any installment of
interest over any other installment of interest, or of any Note over any other
Note, ratably to the aggregate of such principal and premium, if any, and
accrued and unpaid interest.
Section 6.4 Proceedings by Noteholder.
-------------------------
No holder of any Note shall have any right by virtue of or by availing of
any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture, or for the
appointment of a receiver, trustee, liquidator, custodian or other similar
official, or for any other remedy hereunder, unless such holder previously shall
have given to the Trustee written notice of an Event of Default and of the
continuance thereof, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the Notes then outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding, and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.7; it being understood and intended, and being
expressly covenanted by the taker and holder of every Note with every other
taker and holder and the Trustee, that no one or more holders of Notes shall
have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Notes, to obtain or seek to obtain priority over or preference
to any other such holder or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common benefit of all
holders of Notes (except as otherwise provided herein). For the protection and
enforcement of this Section 6.4, each and every Noteholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision of
any Note, the right of any holder of any Note to receive payment of the
principal of, premium, if any, and interest on such Note, on or after the
respective due dates expressed in such Note, or to institute suit for the
enforcement of any such payment on or after such respective dates against the
Company shall not be impaired or affected without the consent of such holder
except as otherwise set forth herein.
Section 6.5 Proceedings by Trustee.
----------------------
In case of an Event of Default and subject to the provisions of Section 7.7
hereof, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 6.6 Remedies Cumulative and Continuing.
----------------------------------
Except as provided in Section 2.6, all powers and remedies given by this
Article VI to the Trustee or to the Noteholders shall, to the extent permitted
by law, be deemed cumulative and not exclusive of such powers and remedies or of
any other powers and remedies available to the Trustee or the holders of the
Notes, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any holder of any of the Notes to
exercise any right or power accruing upon any default or Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such default or any acquiescence
therein; and, subject to the provisions of Section 6.4, every power and remedy
given by this Article VI or by law to the Trustee or to the Noteholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Noteholders.
Section 6.7 Direction of Proceedings and Waiver of Defaults by Majority of
Noteholders.
--------------------------------------------------------------
The holders of a majority in aggregate principal amount of the Notes at the
time outstanding (determined in accordance with Section 8.4) shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee; provided that (a) such direction shall not be in conflict with any
rule of law or with this Indenture and (b) the Trustee may take any other action
deemed proper by the Trustee that is not inconsistent with such direction. The
holders of a majority in aggregate principal amount of the Notes at the time
outstanding (determined in accordance with Section 8.4) may on behalf of the
holders of all of the Notes waive any past default or Event of Default hereunder
and its consequences except (i) a default in the payment of interest or premium,
if any, on, or the principal of, the Notes or (ii) a default in respect of a
covenant or provisions hereof that under Article IX cannot be modified or
amended without the consent of the holders of all Notes then outstanding.
Whenever any default or Event of Default hereunder shall have been waived as
permitted by this Section 6.7, said default or Event of Default shall for all
purposes of the Notes and this Indenture be deemed to have been cured and to be
not continuing and the Company, the Trustee and the holders of the Notes shall
as reasonably possible be restored to their former positions and rights
hereunder; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Section 6.8 Notice of Defaults.
------------------
The Trustee shall, within 90 days after the occurrence of a default, mail
to all Noteholders, as the names and addresses of such holders appear upon the
Note register, notice of all defaults of which a Responsible Officer has actual
knowledge, unless such defaults shall have been cured or waived before the
giving of such notice; provided that, except in the case of default in the
payment of the principal of, premium, if any, or interest on any of the Notes,
the Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Trustee in good faith determines that the withholding
of such notice is in the interests of the Noteholders.
Section 6.9 Undertaking to Pay Costs.
------------------------
All parties to this Indenture agree, and each holder of any Note by his
acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
provided that the provisions of this Section 6.9 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Noteholder or group of
Noteholders holding in the aggregate more than 10% in principal amount of the
indenture securities outstanding, or to any suit instituted by any Noteholder
for the enforcement of the payment of the principal of, premium, if any, or
interest on any Note on or after the due date expressed in such Note.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.1 Duties and Responsibilities of Trustee.
--------------------------------------
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; 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; provided that in
the case of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph
(b) of this Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts reasonably
available to the Trustee; 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 6.7.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
Section 7.2 Reports by Trustee to Holders.
-----------------------------
Within 60 days after each April 1 commencing with the April 1 following the
date of this Indenture, the Trustee shall, if required by the Trust Indenture
Act, mail to each Noteholder a brief report dated as of such April 1 that
complies with Trust Indenture Act Section 313(a). The Trustee also shall comply
with Trust Indenture Act Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the Notes
become listed or desisted on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Noteholders shall be
mailed to the Company and, to the extent required by Section 5.2 hereof and of
the Trust Indenture Act Section 313(d), filed with the Commission and each stock
exchange, if any, on which the Notes are listed.
Section 7.3 Reliance on Documents, Opinions, etc.
------------------------------------
Except as otherwise provided in Section 7.1:
(a) The Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, coupon or other paper or document
believed by it in good faith to be genuine and to have been signed or presented
by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed or required by the
Trust Indenture Act); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(c) The Trustee may consult with counsel of its selection and any
advice or opinion of counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in accordance with such advice or opinion of counsel;
(d) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder; no Depository, Custodian or paying agent who is not the Trustee shall
be deemed an agent of the Trustee, and the Trustee (in its capacity as Trustee)
shall not be responsible for any act or omission by any such Depository,
Custodian or paying agent;
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by the Indenture at the request or direction of
any of the holders pursuant to this Indenture unless such holders have offered
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities that would be incurred by it in compliance with such request or
direction.
(f) Subject to the provisions of Section 7.1(c), the Trustee shall not
be liable for any action it takes or omits to take in good faith that it
believes to be authorized or within its rights or powers;
(g) In connection with any request to transfer or exchange any Note,
the Trustee may request a direction (in the form of an Officers' Certificate)
from the Company and an Opinion of Counsel with respect to compliance with any
restrictions on transfer or exchange imposed by this Indenture, the Securities
Act, other applicable law or the rules and regulations of any exchange on which
the Notes may be traded, and the Trustee may rely and shall be protected in
acting upon such direction and in accordance with such Officers' Certificate and
Opinion of Counsel;
(h) The Trustee shall not be deemed to have knowledge of any Event of
Default or other fact or event upon the occurrence of which it may be required
to take action hereunder unless one of its Responsible Officers has actual
knowledge thereof obtained by a written statement.
Section 7.4 No Responsibility for Recitals, etc.
-----------------------------------
The recitals contained herein and in the Notes (except in the Trustee's
certificate of authentication) shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of any Notes or the proceeds of any Notes
authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.
Section 7.5 Trustee, Paying Agents or Registrar May Own Notes.
-------------------------------------------------
The Trustee, any paying agent or any Note registrar, in its individual or
any other capacity, may become the owner or pledgee of Notes with the same
rights it would have if it were not Trustee, paying agent or Note registrar.
Section 7.6 Monies to be Held in Trust.
--------------------------
Subject to the provisions of Section 11.5, all monies received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as may be agreed to in writing from time to time
by the Company and the Trustee.
Section 7.7 Compensation and Expenses of Trustee.
------------------------------------
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as the Company and the
Trustee shall from time to time agree in writing, for all services rendered by
it hereunder in any capacity (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust), and the Company
shall pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or willful misconduct. The Company also covenants to
indemnify each of the Trustee or any predecessor Trustee in any capacity under
this Indenture and its agents and any authenticating agent for, and to hold them
harmless against, any and all loss, liability, damage, claim or expense,
including taxes (other than taxes based on the income of the Trustee) incurred
without negligence or willful misconduct on the part of the Trustee or such
agent or authenticating agent, as the case may be, and arising out of or in
connection with the acceptance or administration of this trust or in any other
capacity hereunder, including the costs and expenses of defending themselves
against any claim of liability in the premises. The obligations of the Company
under this Section 7.7 to compensate or indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall be secured
by a lien prior to that of the Notes upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the holders of particular Notes. The obligation of the Company under this
Section shall survive the satisfaction and discharge of this Indenture.
Section 7.8 Officers' Certificate as Evidence.
---------------------------------
Except as otherwise provided in Section 7.1, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such Officers'
Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or omitted by
it under the provisions of this Indenture upon the faith thereof.
Section 7.9 Conflicting Interests of Trustee.
--------------------------------
In the event that the Trust Indenture Act is applicable hereto, and if the
Trustee has or shall acquire a conflicting interest within the meaning of Trust
Indenture Act Section 310(b) and there exists an Event of Default hereunder
(exclusive of any period of grace or requirement of notice), the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
Section 7.10 Eligibility of Trustee.
----------------------
There shall at all times be a Trustee hereunder that shall be a person that
satisfies the requirements of Trust Indenture Act Section 310(a)(1) and Section
310(a)(5) and that has a combined capital and surplus of at least $50,000,000.
If such person publishes reports of condition at least annually, pursuant to law
or to the requirements of any supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VII.
Section 7.11 Resignation or Removal of Trustee.
---------------------------------
(a) The Trustee may at any time resign by giving written notice of such
resignation to the Company; and the Company shall mail, or cause to be mailed,
notice thereof to the holders of Notes at their addresses as they shall appear
on the Note register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with Section 7.9 after
written request therefor by the Company or by any Noteholder who has been a bona
fide holder of a Note or Notes for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.10 and shall fail to resign after written request
therefor by the Company or by any such Noteholder; or
(iii) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, the Company may remove the
Trustee and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee, or
any Noteholder who has been a bona fide holder of a Note or Notes for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Notes at the time outstanding may at any time remove the Trustee and nominate a
successor trustee, which shall be deemed appointed as successor trustee unless
within ten days after notice to the Company of such nomination the Company
objects thereto, in which case the Trustee so removed or any Noteholder, upon
the terms and conditions and otherwise as provided in the next paragraph, may
petition any court of competent jurisdiction for an appointment of a successor
trustee.
If no successor trustee shall have been so appointed and have accepted
appointment within 60 days after removal or the mailing of such notice of
resignation to the Noteholders, the Trustee resigning or being removed may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or, in the case of either resignation or removal, any Noteholder who
has been a bona fide holder of a Note or Notes for at least six months may, on
behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 7.11 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 7.12.
Section 7.12 Acceptance by Successor Trustee.
-------------------------------
Any successor trustee appointed as provided in Section 7.11 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon, the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein; but on the written
request of the Company or of the successor trustee, the Trustee ceasing to act
shall, upon payment of any amounts then due it pursuant to the provisions of
Section 7.7, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the Trustee so ceasing to act. Upon request
of any such successor trustee, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by
such trustee as such, except for funds held in trust for the benefit of holders
of particular Notes, to secure any amounts then due it pursuant to the
provisions of Section 7.7.
No successor trustee shall accept appointment as provided in this Section
7.12 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 7.9 and eligible under the provisions
of Section 7.10.
Upon acceptance of appointment by a successor trustee as provided in this
Section 7.12, the Company shall mail or cause to be mailed notice of the
succession of such Trustee hereunder to the holders of Notes at their addresses
as they shall appear on the Note register. If the Company fails to mail such
notice within ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of the
Company.
Section 7.13 Successor, by Merger, etc.
-------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor to the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section 7.9
and eligible under the provisions of Section 7.10 without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
Section 7.14 Limitation on Rights of Trustee as Creditor.
-------------------------------------------
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Notes) and the Trust Indenture Act is applicable
hereto, the Trustee shall be subject to the provisions of Trust Indenture Act
Section 311(a) or, if applicable, Trust Indenture Act Section 311(b) regarding
the collection of the claims against the Company (or any such other obligor).
ARTICLE VIII
CONCERNING THE NOTEHOLDERS
Section 8.1 Action by Noteholders.
---------------------
Whenever in this Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action, the holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Noteholders in person or by agent or proxy appointed
in writing, or (b) by a combination of such instrument or instruments and any
such record of such a meeting of Noteholders. Whenever the Company or the
Trustee solicits the taking of any action by the holders of the Notes, the
Company or the Trustee may fix in advance of such solicitation, a date as the
record date for determining holders entitled to take such action. The record
date shall be not more than 15 days prior to the date of commencement of
solicitation of such action.
Section 8.2 Proof of Execution by Noteholders.
---------------------------------
Subject to the provisions of Sections 7.1 and 7.2, proof of the execution
of any instrument by a Noteholder or by agent or proxy shall be sufficient if
made in accordance with Section 7.3 hereof. The holding of Notes shall be proved
by the Note register or by a certificate of the Note registrar.
Section 8.3 Who are Deemed Absolute Owners.
------------------------------
The Company, the Trustee, any paying agent and any Note registrar may deem
the person in whose name such Note shall be registered upon the books of the
Company to be, and may treat such person as, the absolute owner of such Note
(whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of, premium, if any, and interest on such Note and
for all other purposes; and neither the Company nor the Trustee nor any paying
agent nor any Note registrar shall be affected by any notice to the contrary.
All such payments so made to any holder for the time being, or upon order of
such holder, shall be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies payable upon any
such Note.
The Depository shall be deemed to be the owner of the Global Note for all
purposes, including receipt of notices to Noteholders and payment of principal
of, premium, if any, and interest on the Notes. None of the Company, the Trustee
(in its capacity as Trustee), any paying agent or the Note registrar (or
co-registrar) shall have any responsibility for any aspect of the records
relating to or payments made on account of beneficial interests of the Global
Note or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Section 8.4 Company-Owned Notes Disregarded.
-------------------------------
In determining whether the holders of the requisite aggregate principal
amount of Notes have concurred in any direction, consent, waiver or other action
under this Indenture, Notes that are owned by the Company or any other obligor
on the Notes or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other
obligor on the Notes shall be disregarded and deemed not to be outstanding for
the purpose of any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action, only Notes that a Responsible
Officer of the Trustee actually knows are so owned shall be so disregarded.
Notes so owned that have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 8.4 if the pledgee shall establish
to the satisfaction of the Trustee the pledger's right to vote such Notes and
that the pledgee is not the Company, any other obligor on the Notes or a person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor.
In the case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee. Upon
request of the Trustee, the Company shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Notes, if any, known by the
Company to be owned or held by or for the account of any of the above described
persons; and subject to Section 7.1, the Trustee shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Notes not listed therein are outstanding for the
purpose of any such determination.
Section 8.5 Revocation of Consents, Future Holders Bound.
--------------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any holder of a Note that is shown by
the evidence to be included in the Notes the holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 8.2, revoke such
action so far as concerns such Note. Except as aforesaid, any such action taken
by the holder of any Note shall be conclusive and binding upon such holder and
upon all future holders and owners of such Note and of any Notes issued in
exchange or substitution therefor, irrespective of whether any notation in
regard thereto is made upon such Note or any Note issued in exchange or
substitution therefor.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Noteholders.
------------------------------------------------------
The Company, when authorized by a Board Resolution, and the Trustee may
from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Notes, any property or assets;
(b) to evidence the succession of another person to the Company, or
successive successions, and the assumption by the Successor Company of the
covenants, agreements and obligations of the Company pursuant to Article X;
(c) to add to the covenants of the Company such further covenants,
restrictions or conditions as the Board of Directors and the Trustee shall
consider to be for the benefit of the holders of Notes and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided that in respect of any
such additional covenant, restriction or condition, such supplemental indenture
may provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(d) to provide for the exchange of the Global Note for Notes to be
issued in definitive form and to provide for exchangeability of such Notes with
the Notes issued hereunder in fully registered form and to make all appropriate
changes for such purpose;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture that may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture that shall not adversely affect the interests of
the holders of the Notes;
(f) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Notes; or
(g) to modify, eliminate or add to the provisions of this Indenture to
such extent necessary to effect the qualification of this Indenture under the
Trust Indenture Act (if applicable), or under any similar federal statute
hereafter enacted (if applicable).
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of this Section 9.1
may be executed by the Company and the Trustee without the consent of the
holders of any of the Notes at the time outstanding, notwithstanding any of the
provisions of Section 9.2.
Section 9.2 Supplemental Indentures With Consent of Noteholders.
---------------------------------------------------
With the consent (evidenced as provided in Article VIII) of the holders of
not less than a majority in aggregate principal amount of the Notes at the time
outstanding, the Company, when authorized by a Board Resolution and the Trustee,
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or any
supplemental indenture or of modifying in any manner the rights of the holders
of the Notes; provided that no such supplemental indenture shall (i) without the
consent of the holders of each Note so affected, extend the fixed maturity of
any Note or due date for principal installments thereunder, or reduce the rate
or extend the time of payment of interest thereon, or reduce the principal
amount thereof or premium, if any, thereon or reduce any amount payable on
redemption or repurchase thereof, alter the obligation of the Company to
repurchase the Notes at the option of the holder upon the occurrence of a Change
of Control or impair or affect the right of any Noteholder to institute suit for
the payment thereof or make the principal thereof or interest or premium, if
any, thereon payable in any coin or currency other than that provided in the
Notes, or (ii) without the consent of the holders of all the Notes then
outstanding, reduce the aforesaid percentage of Notes, the holders of which are
required to consent to any such supplemental indenture.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by its Secretary or Assistant Secretary authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Noteholders as aforesaid, the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Noteholders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 9.3 Effect of Supplemental Indentures.
---------------------------------
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act, as then in effect, if such
supplemental indenture is then required to so comply. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Notes shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
Section 9.4 Notation on Notes.
-----------------
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article IX may bear a notation in
form approved by the Company as to any matter provided for in such supplemental
indenture, but they need not do so. After notice to the Trustee, if the Company
shall determine to add such a notation, new Notes so modified as to conform, in
the opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may, at the Company's expense, be
prepared and executed by the Company, authenticated by the Trustee (or an
authenticating agent duly appointed by the Trustee pursuant to Section 13.11)
and delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.
Section 9.5 Evidence of Compliance of Supplemental Indenture to be
Furnished to the Trustee.
------------------------------------------------------
The Trustee shall be furnished with and, subject to the provisions of
Sections 7.1 and 7.2, may rely conclusively upon an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE
Section 10.1 Company may Consolidate, etc. on Certain Terms.
----------------------------------------------
The Company shall not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of its assets (determined on a
consolidated basis) to any person unless: (i) either the Company is the
resulting, surviving or transferee person (the "Successor Company") or the
Successor Company is a person organized and existing under the laws of the
United States or any State thereof or the District of Columbia, and the
Successor Company (if not the Company) expressly assumes by a supplemental
indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under this Indenture and the Notes,
(ii) immediately after giving effect to such transaction, no Event of Default
has happened and is continuing and (iii) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
Section 10.2 Successor Company to be Substituted.
-----------------------------------
In case of any such consolidation, merger, sale, conveyance, transfer or
lease and upon the assumption by the Successor Company, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of, premium, if any,
and interest on all of the Notes and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Company,
such Successor Company shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the party hereto. When a
Successor Company duly assumes all the obligations of the Company pursuant to
this Indenture and the Notes, the predecessor shall be released from all such
obligations.
Section 10.3 Opinion of Counsel to be Given to Trustee.
-----------------------------------------
The Trustee, subject to Sections 7.1 and 7.2, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or lease and any such
assumption complies with the provisions of this Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 11.1 Legal Defeasance And Covenant Defeasance Of The Notes.
-----------------------------------------------------
(a) The Company may, at its option by Board Resolution, at any time,
with respect to the Notes, elect to have either paragraph (b) or paragraph (c)
below be applied to the outstanding Notes upon compliance with the conditions
set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Notes on the date the conditions set forth in paragraph (d) below are satisfied
(hereinafter, "legal defeasance"). For this purpose, such legal defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of the Sections of and matters
under this Indenture referred to in clauses (i) and (ii) below and to have
satisfied all its other obligations under such Notes and this Indenture insofar
as such Notes are concerned, except for the following, which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of holders of
outstanding Notes to receive solely from the trust fund described in paragraph
(d) below and as more fully set forth in such paragraph, payments in respect of
the principal of, premium, if any, and interest on such Notes when such payments
are due and (ii) obligations listed in Section 11.3.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article IV, Article X and
Section 3.4 with respect to the outstanding Notes on and after the date the
conditions set forth in paragraph (d) are satisfied (hereinafter, "covenant
defeasance"), and the Notes shall thereafter be deemed to be not "outstanding"
for the purpose of any direction, waiver, consent or declaration or act of
holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document, and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.1,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) The Company shall have irrevocably deposited in trust with
the Trustee, pursuant to an irrevocable trust and security agreement in form and
substance satisfactory to the Trustee, cash or non-callable U.S. Government
Obligations maturing as to principal and interest at such times, or a
combination thereof, in such amounts as are sufficient, without consideration of
the reinvestment of such interest and after payment of all federal, state and
local taxes or other charges or assessments in respect thereof payable by the
Trustee, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof (in form and substance
reasonably satisfactory to the Trustee) delivered to the Trustee, to pay the
principal of, premium, if any, and interest on the outstanding Notes on the
dates on which any such payments are due and payable in accordance with the
terms of this Indenture and of the Notes as well as all other sums payable
hereunder by the Company;
(ii) (A) No Event of Default shall have occurred or be
continuing on the date of such deposit, and (B) no Default or Event of Default
under Section 6.1(f) or 6.1(g) shall occur on or before the 123rd day after the
date of such deposit;
(iii) Such deposit shall not result in a Default under this
Indenture or a breach or violation of, or constitute a default under, any other
instrument or agreement to which the Company is a party or by which it or its
property is bound;
(iv) In the case of a legal defeasance under paragraph (b)
above, the Company shall have delivered to the Trustee an Opinion of Counsel in
form and substance reasonably satisfactory to the Trustee stating that (A) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling applicable to such a defeasance or (B) since the date of this
Indenture, there has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such opinion shall confirm
that, the holders of the Notes shall not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and shall be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred; and, in the case of a
covenant defeasance under paragraph (c) above, the Company shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, in form and
substance reasonably satisfactory to the Trustee, to the effect that holders of
the Notes shall not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance and shall be subject to
federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred;
(v) The holders shall have a perfected security interest under
applicable law in the cash or U.S. Government Obligations deposited pursuant to
Section 11.1(d)(i) above;
(vi) The Company shall have delivered to the Trustee an
Opinion of Counsel, in form and substance reasonably satisfactory to the
Trustee, to the effect that, after the passage of 123 days following the
deposit, the trust funds shall not be subject to any applicable bankruptcy,
insolvency, reorganization or similar law affecting creditors' rights generally;
(vii) Such defeasance shall not cause the Trustee to have a
conflicting interest with respect to any securities of the Company; and
(viii) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee, each stating that all conditions precedent
specified herein relating to the defeasance contemplated by this Section 11.1
have been complied with; provided, that no deposit under clause (i) shall be
effective to terminate the obligations of the Company under the Notes or this
Indenture prior to the passage of 123 days following such deposit.
Section 11.2 Termination of Obligations upon Cancellation of the Notes.
---------------------------------------------------------
In addition to the Company's rights under Section 11.1, the Company may
terminate all of its obligations under this Indenture (subject to Section 11.3)
when:
(a)(i) all Notes theretofore authenticated and delivered (other than
Notes that have been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.6) have been delivered to the Trustee for
cancellation; and
(ii) the Company has paid or caused to be paid all other sums payable
hereunder and under the Notes by the Company; or
(b)(i) the Notes not previously delivered to the Trustee for
cancellation shall have become due and payable or are by their terms to become
due and payable within one year or are to be called for redemption under
arrangements satisfactory to the Trustee upon delivery of notice, (ii) the
Company shall have irrevocably deposited with the Trustee, as trust funds, cash,
in an amount sufficient to pay principal of premium, if any, and interest on the
outstanding Notes, to maturity or redemption, as the case may be, (iii) such
deposit shall not result in a breach or violation of, or constitute a default
under, any agreement or instrument pursuant to which the Company is a party or
by which it or its property is bound and (iv) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee, each stating that all conditions related
to such defeasance have been complied with.
Section 11.3 Survival of Certain Obligations.
-------------------------------
Notwithstanding the satisfaction and discharge of this Indenture and of the
Notes referred to in Section 11.1 or 11.2, the respective obligations of the
Company and the Trustee under Sections 2.3, 2.4, 2.5, 2.6, 3.1, 4.2, 5.1, 6.4,
6.9, 7.6, 7.11, 11.5, 11.6 and 11.7 shall survive until the Notes are no longer
outstanding, and thereafter, the obligations of the Company and the Trustee
under Sections 6.9, 7.6, 11.5, 11.6 and 11.7 shall survive. Nothing contained in
this Article XI shall abrogate any of the rights, obligations or duties of the
Trustee under this Indenture.
Section 11.4 Acknowledgment of Discharge by Trustee.
--------------------------------------
Subject to Section 11.7, after (i) the conditions of Section 11.1 or 11.2
have been satisfied, (ii) the Company has paid or caused to be paid all other
sums payable hereunder by the Company and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified in Section 11.3.
Section 11.5 Application of Trust Assets.
---------------------------
The Trustee shall hold any cash or U.S. Government Obligations deposited
with it in the irrevocable trust established pursuant to Section 11.1 or 11.2,
as the case may be. The Trustee shall apply the deposited cash or the U.S.
Government Obligations, together with earnings thereon in accordance with this
Indenture and the terms of the irrevocable trust agreement established pursuant
to Section 11.1 or 11.2, as the case may be, to the payment of principal of,
premium, if any, and interest on the Notes. The cash or U.S. Government
Obligations so held in trust and deposited with the Trustee in compliance with
Section 11.1 or 11.2, as the case may be, shall not be part of the trust estate
under this Indenture, but shall constitute a separate trust fund for the benefit
of all holders entitled thereto. Except as specifically provided herein, the
Trustee shall not be requested to invest any amounts held by it for the benefit
of the holders or pay interest on uninvested amounts to any holder.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 11.1 hereof or Section 11.2 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the holders of outstanding
Notes.
Section 11.6 Repayment to the Company; Unclaimed Money.
-----------------------------------------
Subject to applicable laws governing escheat of such property, and upon
termination of the trust established pursuant to Section 11.1 hereof or 11.2
hereof, as the case may be, the Trustee shall promptly pay to the Company upon
written request any excess cash or U.S. Government Obligations held by them.
Additionally, if amounts for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee shall, upon written
request, pay such amounts back to the Company forthwith. Thereafter, all
liability of the Trustee with respect to such amounts shall cease. After payment
to the Company, holders entitled to such payment must look to the Company for
such payment as general creditors unless an applicable abandoned property law
designates another person.
Section 11.7 Reinstatement.
-------------
If the Trustee is unable to apply any cash or U.S. Government Obligations
in accordance with Section 11.1 or 11.2 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 11.1 or 11.2 until such
time as the Trustee is permitted to apply all such cash or U.S. Government
Obligations in accordance with Section 11.1 or 11.2, as the case may be;
provided that if the Company makes any payment of principal of, premium, if any,
or interest on any Notes following 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 amounts held by the Trustee.
ARTICLE XII
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 12.1 Indenture and Notes Solely Corporate Obligations.
------------------------------------------------
No recourse for the payment of the principal of, or premium, if any, or
interest on any Note, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture or in any Note,
or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, shareholder, officer or director, as such, past,
present or future, of the Company or of any successor entity, either directly or
through the Company or any successor entity, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Notes.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Addresses for Notices, etc.
--------------------------
Any notice or demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Notes on the
Company shall be deemed to have been sufficiently given or made, for all
purposes if given or served by being sent by prepaid overnight delivery or being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee) to Dynex Capital, Inc., 4551 Cox Road, Suite 300, Glen Allen, Virginia
23060, Attention: Chief Financial Officer with a copy to Elizabeth R. Hughes,
Esq., Venable, Baetjer and Howard, LLP 80101 Towers Crescent Drive, Suite 300,
Vienna, Virginia 22182. Any notice, direction, request or demand hereunder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or served by being sent by prepaid overnight delivery or
being deposited postage prepaid by registered or certified mail in a post office
letter box addressed to the Trustee, which office is, at the date as of which
this Indenture is dated, located at 1021 East Cary Street, 3rd Floor (Corporate
Trust-VA) Richmond, Virginia 23219. Attention: Chief Financial Officer.
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to him
by first class mail, postage prepaid, at the address of such Noteholder as it
appears on the Note register and shall be sufficiently given to such Noteholder
if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in
it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Section 13.2 Communications by Holders with Other Holders.
--------------------------------------------
Noteholders may communicate pursuant to Trust Indenture Act Section 312(b)
with other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Note registrar and any other person shall
have the protection of Trust Indenture Act Section 312(c).
Section 13.3 Governing Law.
-------------
This Indenture shall be deemed to be a contract made under the substantive
laws of Virginia and for all purposes shall be construed in accordance with the
substantive laws of Virginia without regard to conflicts of laws principles
thereof.
Section 13.4 Evidence of Compliance with Conditions Precedent;
Certificates to Trustee.
-------------------------------------------------
Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, including those actions
set forth in Trust Indenture Act Section 314(c), the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include: (1) a statement that the person making such
certificate or opinion has read such covenant or condition, (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statement or opinion contained in such certificate or opinion is
based, (3) 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
complied with and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 13.5 Legal Holidays.
--------------
In any case where any payment date, date fixed for redemption, stated
maturity or Change of Control Purchase Date of any Note shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Notes) payment of interest or principal (and premium, if any) need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the payment date, date fixed for redemption,
Change of Control Purchase Date, or at the stated maturity; provided, that no
interest shall accrue for the period from and after such payment date, date
fixed for redemption, Change of Control Purchase Date or stated maturity, as the
case may be.
Section 13.6 No Security Interest Created.
----------------------------
Nothing in this Indenture or in the Notes, expressed or implied, shall be
construed to constitute a security interest under the Uniform Commercial Code or
similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction where property of the Company or its Subsidiaries is located.
Section 13.7 Trust Indenture Act.
-------------------
This Indenture is hereby made subject to, and shall be governed by, the
provisions of the Trust Indenture Act required to be part of and to govern
indentures qualified under the Trust Indenture Act.
Section 13.8 Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies, or conflicts with the
duties imposed by operation of the Trust Indenture Act, the imposed duties, upon
qualification of this Indenture under the Trust Indenture Act, shall control.
Section 13.9 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Notes, expressed or implied, shall give
to any person, other than the parties hereto, any paying agent, any
authenticating agent, any conversion agent, any Note registrar and their
successors hereunder and the holders of Notes, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 13.10 Table of Contents, Headings etc.
-------------------------------
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 13.11 Authenticating Agent.
--------------------
The Trustee may appoint an authenticating agent that shall be authorized to
act on its behalf and subject to its direction in the authentication and
delivery of Notes in connection with the original issuance thereof and transfers
and exchanges of Notes hereunder, including under Sections 2.4, 2.5, 2.6, 2.7
and 3.3, as fully to all intents and purposes as though the authenticating agent
had been expressly authorized by this Indenture and those Sections to
authenticate and deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by the authenticating agent shall be deemed
to be authentication and delivery of such Notes "by the Trustee" and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent shall be deemed to satisfy any requirement hereunder or in
the Notes for the Trustee's certificate of authentication. Such authenticating
agent shall at all times be a person eligible to serve as Trustee hereunder
pursuant to Section 7.10.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor company is otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the parties hereto or the authenticating agent or such successor company.
Any authenticating agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any authenticating agent by giving written notice of
termination to such authenticating agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee
shall promptly appoint a successor authenticating agent (which may be the
Trustee), shall give written notice of such appointment to the Company and shall
mail notice of such appointment to all holders of Notes as the names and
addresses of such holders appear on the Note register.
The Company agrees to pay to the authenticating agent from time to time
reasonable compensation for its services.
The provisions of Sections 7.3, 7.4, 7.5, 8.3 and this Section 13.11 shall
be applicable to any authenticating agent.
Section 13.12 Execution in Counterparts.
-------------------------
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
Wachovia Bank National Association hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly signed and attested, all as of the date first written above.
DYNEX CAPITAL, INC.
By:______________________________________
Name: Stephen J. Benedetti
Title: Chief Financial Officer and
Executive Vice President
Attest:
- ------------------------------------
WACHOVIA BANK NATIONAL ASSOCIATION,
as Trustee
By:_________________________________
Name: _____________________________
Title: _______________________________
Attest:
- ---------------------------
EXHIBIT A - FORM OF GLOBAL NOTE
[FORM OF FACE OF NOTE]
February 28, 2003 [$30,000,000]
CUSIP
DYNEX CAPITAL, INC.
9.50% Senior Notes Due 2005
DYNEX CAPITAL, INC., a corporation duly organized and validly existing
under the laws of the Commonwealth of Virginia (the "Company"), which term
includes any Successor Company under the Indenture referred to on the reverse
hereof, for value received hereby promises to pay to the Depository Trust
Company or registered assigns, the principal sum of Thirty Million Dollars in
equal quarterly installments as set forth below (subject to adjustment as set
forth in the fourth paragraph hereof), at the office or agency of the Company
maintained for that purpose in Richmond, Virginia, or, at the option of the
holder of this Global Note, at the office of the Trustee, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
quarterly, on May 31, August 31, November 30 and February 28 (each a "Payment
Date"), commencing May 31, 2003, on the outstanding principal balance of this
Global Note at said office or agency, in like coin or currency, at the rate per
annum specified in the title of this Global Note, from February 28, 2003 or the
most recent Payment Date, as the case may be, next preceding the date of this
Global Note to which principal and interest has been paid or duly provided for,
unless the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this Global Note.
Principal shall be due and payable on the Payment Date in eight equal
quarterly installments in an amount equal to twelve and one-half percent (12.5%)
of the initial principal amount of this Global Note as follows (subject to
adjustment as set forth in the fourth paragraph hereof):
Due date Amount
-------- ------
May 31, 2003 $3,750,000
August 31, 2003 $3,750,000
November 30, 2003 $3,750,000
February 28, 2004 $3,750,000
May 31, 2004 $3,750,000
August 31, 2004 $3,750,000
November 30, 2004 $3,750,000
February 28, 2005 $3,750,000
The Trustee shall apply such principal payments to the reduction of the
aggregate principal amount outstanding under the Global Note and direct the
Depository and Custodian to record such reduction in the aggregate principal
amount outstanding under the Global Note. Any interest on any Note that is
payable, but is not punctually paid or duly provided for on said May 31 and
August 31, November 30 and February 28 and the continuance of such default for a
period of thirty (30) days (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Noteholder on the relevant record date by virtue of
his having been such Noteholder; and such Defaulted Interest shall be paid by
the Company, at its election in each case, either (i) by notifying the Trustee
of a special record date, the amount of interest to be paid on such special
record date and the date of payment (not more than 25 days after receipt by the
Trustee of such interest, unless the Trustee shall consent to an earlier date)
and depositing with the Trustee an amount of money equal to the aggregate amount
to be paid in respect of such Defaulted Interest on making arrangements
satisfactory to the Trustee for such deposit or (ii) in any lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed and upon notice requested by such exchange, if, after notice to
the Trustee, the Trustee deems such manner of payment to be practicable.
The principal and interest so payable on any May 31, August 31, November 30
and February 28 will be paid to the person in whose name this Global Note (or
one or more Predecessor Notes) is registered at the close of business on the
record date, which shall be the May 15, August 15, November 15 and February 15
(record date) (whether or not a Business Day) next preceding such May 15, August
15, November 15 and February 15, respectively; provided that any such interest
not punctually paid or duly provided for shall be payable as provided in the
Indenture. Interest shall be paid by check mailed to the registered holder at
the registered address of such person unless other arrangements are made in
accordance with the provisions of the Indenture.
This Global Note shall represent all of the outstanding Notes and shall not
be exchangeable for definitive Notes except as expressly provided in the
Indenture. Subject to the terms of the Indenture and the execution and delivery
of a supplemental indenture, the aggregate principal amount of this Global Note
represented hereby may from time to time be reduced or increased to reflect
exchanges of a part of this Global Note for interests in the Global Note or
definitive Notes or exchanges of interests in the Global Note or definitive
Notes for a part of this Global Note, redemptions or repurchases of a part of
this Global Note or cancellations of a part of this Global Note or transfers of
interests in the Global Note or definitive Notes in return for a part of this
Global Note or transfers of a part of this Global Note effected by delivery of
interests in the Global Note or definitive Notes, in each case, and in any such
case, by means of notations on the Schedule of Principal Repayments, Exchanges,
Redemptions, Repurchases, Cancellations and Transfers on the last page hereof.
Subject to the first sentence of this paragraph, (i) exchanges of a part of this
Global Note for interests in the Global Note or definitive Notes, (ii) exchanges
of interests in the Global Note or definitive Notes for a part of this Global
Note, (iii) redemptions or repurchases of a part of this Global Note, (iv)
cancellations of a part of this Global Note, (v) transfers of interests in the
Global Note or definitive Notes in return for a part of this Global Note and
(vi) transfers of a part of this Global Note effected by delivery of interests
in the Global Note or definitive Notes may be effected without the surrendering
of this Global Note, provided that appropriate notations on the Schedule of
Principal Repayments, Exchanges, Redemptions, Repurchases, Cancellations and
Transfers are made by the Trustee, or the Custodian at the direction of the
Trustee, to reflect the appropriate reduction or increase, as the case may be,
in the aggregate principal amount of this Global Note resulting therefrom or as
a consequence thereof.
Reference is made to the further provisions of this Global Note set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Global Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee or a duly authorized authenticating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this Global Note to be duly
executed under its corporate seal.
DYNEX CAPITAL, INC.
By: _____________________________
Name: Stephen J. Benedetti
Title: Executive Vice President
and Chief Financial Officer
Attest:
- ---------------------------
Kathy Fern
Assistant Secretary
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated: _________________________
This is one of the Notes described in the within-named Indenture.
[_______________________], as Trustee
By: _____________________________
Authorized Signatory
[FORM OF REVERSE OF GLOBAL NOTE]
DYNEX CAPITAL, INC.
9.50% Senior Notes Due 2005
This Global Note is one of a duly authorized issue of Notes of the Company,
designated as its 9.50% Senior Notes Due 2005 (herein called the "Notes"),
limited to the aggregate principal amount of [$30,000,000] all issued or to be
issued under and pursuant to an Indenture dated as of February __, 2003 (the
"Indenture"), between the Company and Wachovia Bank National Association, as
trustee (the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a complete description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Notes. Each Note is subject to, and
qualified by, all such terms as set forth in the Indenture certain of which are
summarized hereon and each holder of a Note is referred to the corresponding
provisions of the Indenture for a complete statement of such terms. To the
extent that there is any inconsistency between the summary provisions set forth
in the Notes and the Indenture, the provisions of the Indenture shall govern.
Capitalized terms used but not defined in this Global Note shall have the
meanings ascribed to them in the Indenture.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of, premium, if any, and accrued
interest on all Notes may be declared, and upon said declaration shall become,
due and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Notes at the time outstanding, evidenced as in the
Indenture provided, to execute supplemental indentures adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or modifying in any manner the rights of the
holders of the Notes; provided that no such supplemental indenture shall (i)
extend the fixed maturity of any Note, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof or premium,
if any, thereon, or reduce any amount payable on redemption thereof, alter the
obligation of the Company to repurchase the Notes at the option of the holders
upon the occurrence of a Change of Control, or impair or affect the right of any
Noteholder to institute suit for the payment thereof, or make the principal
thereof or interest or premium, if any, thereon payable in any coin or currency
other than that provided in the Notes, subject to the terms set forth in the
Indenture without the consent of the holder of each Note so affected or (ii)
reduce the aforesaid percentage of Notes, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of all Notes then outstanding. The Company and the Trustee may amend or
supplement the Indenture without notice to or consent of any holder of Notes in
certain events specified in the Indenture. It is also provided in the Indenture
that, prior to any declaration accelerating the maturity of the Notes, the
holders of a majority in aggregate principal amount of the Notes at the time
outstanding may on behalf of the holders of all of the Notes waive any past
default or Event of Default under the Indenture and its consequences except a
default in the payment of interest or any premium on or the principal of any of
the Notes, or a default in respect of a covenant or provision of the Indenture
that under Article IX thereof cannot be modified or amended without the consent
of the holders of all Notes then outstanding. Any such consent or waiver by the
holder of this Global Note (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such holder and upon all future holders and
owners of this Global Note and any Notes that may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Global Note or such other Notes.
No reference herein to the Indenture and no provision of this Global Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the place, at the respective times, at the rate
and in the coin or currency herein prescribed.
Interest on the Notes shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
Subject to the terms of the Indenture, the Notes are issuable in registered
form without coupons in denominations of $25 principal amount and integral
multiples thereof. At the office or agency of the Company referred to on the
face hereof, and in the manner and subject to the limitations provided in the
Indenture, without payment of any service charge but with payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or exchange of Notes, Notes may be exchanged
for a like aggregate principal amount of Notes of other authorized
denominations.
The Notes are redeemable at the option of the Company at any time. The
Notes may be redeemed at the Company's option, upon notice as set forth in the
Indenture, in whole at any time or in part from time to time, at the price of
100% of the outstanding principal amount, together with accrued interest to the
date fixed for redemption; provided that if the date fixed for redemption is a
date on or after the record date for the next following Payment Date and on or
before the next following Payment Date, then the principal installment and
interest payable on such following Payment Date shall be paid to the holder on
the record date for the next following Payment Date.
If a Change of Control (as defined in the Indenture) shall occur at any
time, then each holder of Notes shall have the right to require that the Company
repurchase such holder's Notes in whole or in part in integral multiples of $25,
at a purchase price in cash in an amount equal to 101% of the principal amount
of such Notes, plus accrued and unpaid interest, if any, to the repurchase date
pursuant to an offer to be made by the Company and in accordance with the
procedures set forth in the Indenture.
Upon due presentment for registration of transfer of this Global Note at
the office or agency of the Company in Richmond, Virginia, or at the option of
the holder of this Global Note, at the Corporate Trust Office of the Trustee, a
new Note or Notes of authorized denominations for an equal aggregate principal
amount will be issued to the transferee in exchange thereof, subject to the
conditions and limitations provided in the Indenture, without charge except for
any tax or other governmental charge imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any paying agent and
any Note registrar may deem and treat the registered holder hereof as the
absolute owner of this Global Note (whether or not this Global Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon
made by anyone other than the Company or any Note registrar), for the purpose of
receiving payment hereof, or on account hereof, and for all other purposes, and
neither the Company nor the Trustee nor any other authenticating agent nor any
paying agent nor any Note registrar shall be affected by any notice to the
contrary. All payments made to or upon the order of such registered holder
shall, to the extent of the sum or sums paid, satisfy and discharge liability
for monies payable on this Global Note.
No recourse for the payment of the principal of or any premium or interest
on this Global Note, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, shareholder, officer or director, as such,
past, present or future, of the Company or of any Successor Company, either
directly or through the Company or any Successor Company, whether by virtue of
any constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly waived and
released.
[FORM OF OPTION TO ELECT REPAYMENT
UPON A CHANGE OF CONTROL]
To: Dynex Capital, Inc.
The undersigned registered owner of this Global Note hereby irrevocably
acknowledges receipt of a notice from Dynex Capital, Inc. (the "Company") as to
the occurrence of a Change of Control with respect to the Company and requests
and instructs the Company to repay the entire principal amount of this Global
Note, or the portion thereof (which is $25 principal amount or an integral
multiple thereof) below designated, in accordance with the terms of the
Indenture referred to in this Global Note, together with accrued interest to
such date, to the registered holder hereof.
Dated: _______________________ __________________________________________
Signature(s)
__________________________________________
Social Security or Other Taxpayer
Identification Number
Principal amount to be repaid (if less
than all): $____________________________
NOTICE: The option to elect payment upon a Change of Control must correspond
with the name as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
[FORM OF ASSIGNMENT]
For value received _______________________________ hereby sell(s),
assign(s) and transfer(s) unto _________________ (please insert social security
or other identifying number of assignee) the within Note, and hereby irrevocably
constitutes and appoints ____________________________ attorney to transfer the
said Note on the books of the Company, with full power of substitution in the
premises.
Dated: _______________________
______________________________
______________________________
Signature(s)
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks,
stock brokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-15.
_____________________________
Signature Guarantee
NOTICE: The assignment must correspond with the name as written upon the face of
the Note in every particular without alteration or enlargement or any change
whatever.
NOTICE: Transfers are subject to the limitations set forth in the Indenture.
SCHEDULE A
SCHEDULE OF PRINCIPAL REPAYMENTS, EXCHANGES,
REDEMPTIONS, REPURCHASES, CANCELLATIONS AND TRANSFERS
The initial principal amount of this Global Note is U.S. [$30,000,000]. The
following scheduled repayments of principal, additions to principal,
redemptions, repurchases, exchanges of a part of this Global Note for an
interest in the Global or Note definitive Notes have been made: