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EXHIBIT 4.3
EXECUTION COPY
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INDENTURE
DATED AS OF APRIL 26, 2004
AMONG
UMT HOLDINGS, L.P.
THE GUARANTORS NAMED HEREIN
AND
WILMINGTON TRUST COMPANY
TRUSTEE
8% CLASS B JUNIOR SUBORDINATED SECURED DEBENTURES
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CROSS-REFERENCE TABLE
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TIA Sections
Indenture Sections
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310
(a)(1).................................................
7.10
(a)(2).................................................
7.10
(a)(3).................................................
N/A
(a)(4).................................................
N/A
(b)....................................................
7.08; 7.10
(c)....................................................
N/A
311
(a)....................................................
7.11
(b)....................................................
7.11
(c)....................................................
N/A
312
(a)....................................................
2.05
(b)....................................................
14.03
(c)....................................................
14.03
313
(a)....................................................
7.06
(b)(1).................................................
N/A
(b)(2).................................................
7.06
(c)....................................................
14.02
(d)....................................................
7.06
314
(a)....................................................
4.02; 4.04
(b)....................................................
10.02
(c)(1).................................................
14.04
(c)(2).................................................
14.04
(c)(3).................................................
14.04
(d)....................................................
10.05
(e)....................................................
14.05
(f)....................................................
N/A
315
(a)....................................................
7.01
(b)....................................................
7.05; 14.02
(c)....................................................
7.01
(d)....................................................
7.01
(e)....................................................
6.11
316 (a)(last
sentence).....................................
14.06
(a)(1)(A)..............................................
6.05
(a)(1)(B)..............................................
6.04
(a)(2).................................................
N/A
(b)....................................................
6.07
317
(a)(1).................................................
6.08
(a)(2).................................................
6.09
(b)....................................................
2.04
318
(a)....................................................
14.01
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N/A means Not Applicable
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Note: This Cross-Reference Table shall not,
for any purpose, be deemed to be
part of this
Indenture.
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01.
DEFINITIONS.............................................
1
SECTION 1.02. OTHER
DEFINITIONS....................................... 14
SECTION 1.03. INCORPORATION BY
REFERENCE OF TRUST INDENTURE ACT....... 15
SECTION 1.04. RULES OF
CONSTRUCTION................................... 16
ARTICLE II
THE DEBENTURES
SECTION 2.01. FORM AND
DATING......................................... 16
SECTION 2.02. EXECUTION AND
AUTHENTICATION............................ 17
SECTION 2.03. REGISTRAR AND PAYING
AGENT.............................. 18
SECTION 2.04. PAYING AGENT TO HOLD
MONEY IN TRUST..................... 19
SECTION 2.05. DEBENTUREHOLDER
LISTS................................... 19
SECTION 2.06. TRANSFER AND
EXCHANGE................................... 20
SECTION 2.07. REPLACEMENT
DEBENTURES.................................. 21
SECTION 2.08. OUTSTANDING
DEBENTURES.................................. 21
SECTION 2.09. TEMPORARY
DEBENTURES.................................... 22
SECTION 2.10.
CANCELLATION............................................
22
SECTION 2.11. DEFAULTED
INTEREST...................................... 22
SECTION 2.12. CUSIP
NUMBERS........................................... 23
SECTION 2.13. SPECIAL TRANSFER
RESTRICTIONS AND PROVISIONS............ 23
ARTICLE III
REDEMPTION
SECTION 3.01. NOTICES TO
TRUSTEE...................................... 24
SECTION 3.02.
SELECTION...............................................
24
SECTION 3.03.
NOTICE..................................................
25
SECTION 3.04. EFFECT OF NOTICE OF
REDEMPTION.......................... 26
SECTION 3.05. DEPOSIT OF REDEMPTION
PRICE............................. 26
SECTION 3.06. DEBENTURES REDEEMED IN
PART............................. 26
SECTION 3.07. OPTIONAL
REDEMPTION..................................... 26
SECTION 3.08. NO SINKING
FUND......................................... 26
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ARTICLE IV
COVENANTS
SECTION 4.01. PAYMENT OF
DEBENTURES................................... 26
SECTION 4.02.
REPORTS.................................................
27
SECTION 4.03. DIVIDEND AND OTHER
PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.............................. 27
SECTION 4.04. COMPLIANCE
CERTIFICATE.................................. 29
SECTION 4.05. LIMITATION ON
DESIGNATIONS OF UNRESTRICTED
SUBSIDIARIES......................................... 29
SECTION 4.06.
LIENS...................................................
30
SECTION 4.07. ADDITIONAL DEBENTURES
GUARANTEES........................ 30
SECTION 4.08. BUSINESS
ACTIVITIES..................................... 30
SECTION 4.09. FURTHER
ASSURANCES...................................... 30
SECTION 4.10. LIMITED PARTNERSHIP
EXISTENCE........................... 31
ARTICLE V
SUCCESSOR ISSUER
SECTION 5.01. MERGER, CONSOLIDATION
OR SALE OF ALL OR
SUBSTANTIALLY ALL ASSETS OF THE ISSUER............... 31
SECTION 5.02. MERGER, CONSOLIDATION
OR SALE OF ALL OR
SUBSTANTIALLY ALL ASSETS OF A GUARANTOR.............. 32
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT AND
REMEDIES.......................... 34
SECTION 6.02.
ACCELERATION............................................
36
SECTION 6.03. OTHER
REMEDIES.......................................... 37
SECTION 6.04. WAIVER OF PAST
DEFAULTS................................. 37
SECTION 6.05. CONTROL BY
MAJORITY..................................... 37
SECTION 6.06. LIMITATION ON
SUITS..................................... 37
SECTION 6.07. RIGHTS OF HOLDERS TO
RECEIVE PAYMENT.................... 38
SECTION 6.08. COLLECTION SUIT BY
TRUSTEE.............................. 38
SECTION 6.09. TRUSTEE MAY FILE
PROOFS OF CLAIM........................ 38
SECTION 6.10.
PRIORITIES..............................................
39
SECTION 6.11. UNDERTAKING FOR
COSTS................................... 39
SECTION 6.12. WAIVER OF STAY OR
EXTENSION LAWS........................ 39
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ARTICLE VII
TRUSTEE
SECTION 7.01. DUTIES OF
TRUSTEE....................................... 40
SECTION 7.02. RIGHTS OF
TRUSTEE....................................... 41
SECTION 7.03. INDIVIDUAL RIGHTS OF
TRUSTEE............................ 42
SECTION 7.04. TRUSTEE'S
DISCLAIMER.................................... 43
SECTION 7.05. NOTICE OF
DEFAULTS...................................... 43
SECTION 7.06. REPORTS BY TRUSTEE TO
HOLDERS........................... 43
SECTION 7.07. COMPENSATION AND
INDEMNITY.............................. 43
SECTION 7.08. REPLACEMENT OF
TRUSTEE.................................. 45
SECTION 7.09. SUCCESSOR TRUSTEE BY
MERGER............................. 46
SECTION 7.10. ELIGIBILITY;
DISQUALIFICATION........................... 46
SECTION 7.11. PREFERENTIAL
COLLECTION OF CLAIMS AGAINST THE ISSUER.... 46
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. LEGAL DEFEASANCE AND
COVENANT DEFEASANCE................ 46
SECTION 8.02. CONDITIONS TO LEGAL OR
COVENANT DEFEASANCE.............. 48
SECTION 8.03. DEPOSITED MONEY AND
GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS................ 49
SECTION 8.04. REPAYMENT TO THE
ISSUER................................. 50
SECTION 8.05.
REINSTATEMENT...........................................
50
SECTION 8.06. SATISFACTION AND
DISCHARGE OF INDENTURE................. 50
ARTICLE IX
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF
HOLDERS.............................. 51
SECTION 9.02. WITH CONSENT OF
HOLDERS................................. 52
SECTION 9.03. COMPLIANCE WITH TRUST
INDENTURE ACT..................... 53
SECTION 9.04. REVOCATION AND EFFECT
OF CONSENTS AND
WAIVERS.............................................. 54
SECTION 9.05. NOTATION ON OR
EXCHANGE OF DEBENTURES................... 54
SECTION 9.06. TRUSTEE TO SIGN
AMENDMENTS.............................. 54
SECTION 9.07. PAYMENT FOR
CONSENT..................................... 55
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ARTICLE X
COLLATERAL DOCUMENTS
SECTION 10.01. COLLATERAL DOCUMENTS;
ADDITIONAL COLLATERAL............. 55
SECTION 10.02. RECORDING,
ETC.......................................... 57
SECTION 10.03. POSSESSION, USE AND RELEASE
OF COLLATERAL............... 58
SECTION 10.04. EMINENT DOMAIN AND OTHER
GOVERNMENTAL TAKINGS........... 59
SECTION 10.05. TRUST INDENTURE ACT
REQUIREMENTS........................ 60
SECTION 10.06. SUITS TO PROTECT THE
COLLATERAL......................... 60
SECTION 10.07. PURCHASER
PROTECTED..................................... 60
SECTION 10.08. POWERS EXERCISABLE BY
RECEIVER OR TRUSTEE............... 61
SECTION 10.09. DETERMINATIONS RELATING TO
COLLATERAL................... 61
SECTION 10.10. RELEASE UPON TERMINATION OF
THE ISSUER'S OBLIGATIONS.... 61
ARTICLE XI
DEBENTURE GUARANTEES
SECTION 11.01. DEBENTURES
GUARANTEES................................... 62
SECTION 11.02. LIMITATION ON LIABILITY;
RELEASE........................ 64
SECTION 11.03. SUCCESSORS AND
ASSIGNS.................................. 64
SECTION 11.04. NO
WAIVER............................................... 65
SECTION 11.05.
MODIFICATION............................................
65
SECTION 11.06. EVIDENCE OF
GUARANTEE................................... 65
ARTICLE XII
SUBORDINATION
SECTION 12.01.
SUBORDINATION...........................................
66
SECTION 12.02. DISTRIBUTIONS IN LIQUIDATION
OR BANKRUPTCY.............. 66
SECTION 12.03. PRIOR PAYMENT OF CREDIT
FACILITIES; PAYMENT BLOCKAGES... 66
SECTION 12.04. RESUMPTION OF PAYMENTS ON
DEBENTURES.................... 67
SECTION 12.05. NOTICE OF
ACCELERATION.................................. 67
SECTION 12.06. PAYMENTS HELD IN
TRUST.................................. 67
SECTION 12.07. DUTIES OF
TRUSTEE....................................... 68
SECTION 12.08. NOTICE OF
VIOLATIONS.................................... 68
SECTION 12.09.
SUBROGATION.............................................
68
SECTION 12.10. NO
IMPAIRMENT........................................... 68
SECTION 12.11. RIGHT OF SENIOR DEBT TO
ENFORCE......................... 69
SECTION 12.12 NOTICE TO SENIOR
DEBT................................... 69
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SECTION 12.13. KNOWLEDGE OF
TRUSTEE.................................... 69
SECTION 12.14. TRUSTEE MAY HOLD SENIOR
DEBT............................ 69
SECTION 12.15. POWER OF
ATTORNEY....................................... 69
SECTION 12.16.
MODIFICATION............................................
70
ARTICLE XIII
SUBORDINATION OF GUARANTEES
SECTION 13.01.
SUBORDINATION...........................................
70
SECTION 13.02. DISTRIBUTIONS IN LIQUIDATION
OR BANKRUPTCY.............. 70
SECTION 13.03. PRIOR PAYMENT OF CREDIT
FACILITIES; PAYMENT BLOCKAGES... 70
SECTION 13.04. RESUMPTION OF PAYMENTS ON
DEBENTURES.................... 71
SECTION 13.05. NOTICE OF
ACCELERATION.................................. 71
SECTION 13.06. PAYMENTS HELD IN
TRUST.................................. 72
SECTION 13.07. DUTIES OF
TRUSTEE....................................... 72
SECTION 13.08. NOTICE OF
VIOLATIONS.................................... 72
SECTION 13.09.
SUBROGATION.............................................
72
SECTION 13.10. NO
IMPAIRMENT........................................... 73
SECTION 13.11. RIGHT OF SENIOR DEBT TO
ENFORCE......................... 73
SECTION 13.12. NOTICE TO SENIOR
DEBT................................... 73
SECTION 13.13. KNOWLEDGE OF
TRUSTEE.................................... 73
SECTION 13.14. TRUSTEE MAY HOLD SENIOR
DEBT............................ 74
SECTION 13.15. POWER OF
ATTORNEY....................................... 74
SECTION 13.16.
MODIFICATION............................................
74
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01. TRUST INDENTURE ACT
CONTROLS............................ 74
SECTION 14.02.
NOTICES.................................................
74
SECTION 14.03. COMMUNICATION BY HOLDERS
WITH OTHER HOLDERS............. 75
SECTION 14.04. CERTIFICATE AND OPINION AS
TO CONDITIONS PRECEDENT...... 76
SECTION 14.05. STATEMENTS REQUIRED IN
CERTIFICATE OR OPINION........... 76
SECTION 14.06. WHEN DEBENTURES
DISREGARDED............................. 76
SECTION 14.07. RULES BY TRUSTEE, PAYING
AGENT AND REGISTRAR............ 77
SECTION 14.08. LEGAL
HOLIDAYS.......................................... 77
SECTION 14.09. GOVERNING
LAW........................................... 77
SECTION 14.10. NO RECOURSE AGAINST
OTHERS.............................. 77
SECTION 14.11.
SUCCESSORS..............................................
77
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SECTION 14.12. MULTIPLE
ORIGINALS...................................... 77
SECTION 14.13. TABLE OF CONTENTS;
HEADINGS............................. 78
SECTION 14.14.
SEVERABILITY............................................
78
SECTION 14.15. NO ADVERSE INTERPRETATION OF
OTHER AGREEMENTS........... 78
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EXHIBIT A - FORM OF DEBENTURE
EXHIBIT B - FORM OF GUARANTEE
EXHIBIT C - FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH TRANSFER TO
INSTITUTIONAL ACCREDITED INVESTORS
EXHIBIT D - FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
EXHIBIT E - FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
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INDENTURE dated
as of April 26, 2004, among UMT HOLDINGS, L.P., a Delaware
limited partnership (the "Issuer"), the
GUARANTORS (as defined) and WILMINGTON
TRUST COMPANY, as Trustee (the
"Trustee").
Each party
agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the
Holders of (i) the Issuer's 8% Class B
Junior Subordinated Secured Debentures due
2009 issued on the date hereof (the
"Initial Debentures"), and (ii) any
Additional Debentures (as defined) that may
be issued on any other Issue Date
(collectively, the "Debentures"). Except as
otherwise provided herein, the Debentures
will be limited to $25,000,000 in
aggregate principal amount outstanding, of
which $335,000 in aggregate principal
amount will be initially issued on the date
hereof.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01.
Definitions.
"Acquired Debt"
means, with respect to any specified Person: (1) Debt of
any other Person existing at the time such
other Person is merged with or into
or becomes a Restricted Subsidiary of such
specified Person, excluding Debt
incurred in connection with, or in
contemplation of, such other Person's merging
with or into or becoming a Restricted
Subsidiary of such specified Person;
provided, however, that such Debt is
secured only by Liens on the property or
assets of such other Person prior to such
transaction; and (2) Debt (not
incurred in connection with or in
anticipation of such acquisition) secured by a
Lien encumbering any asset acquired by such
specified Person.
"Acquisition"
means the acquisition by Issuer of UMT pursuant to the
Merger.
"Additional
Debentures" shall mean Debentures issued after the date hereof
on subsequent Issue Dates.
"Affiliate" of
any specified Person means: (1) any other Person, directly
or indirectly, controlling or controlled by
or under direct or indirect common
control with such specified Person; (2) any
other Person that owns, directly or
indirectly, 50% or more of such specified
Person's Voting Stock; or (3) any
Person who is a director or officer (a) of
such Person, (b) of any Subsidiary of
such Person or (c) of any Person described
in clause (1) or (2) above. For
purposes of this definition, "control"
(including, with correlative meanings,
the terms "controlling," "controlled by"
and "under common control with"), as
used with respect to any Person, shall mean
the possession, directly or
indirectly, of the power to direct or cause
the direction of the management or
policies of such Person, whether through
the ownership of voting securities, by
agreement or otherwise.
"After-Acquired
Property" means (i) in the case of the Issuer or any
Guarantor, any and all assets or property
of the type constituting Collateral
acquired after the date hereof,
<PAGE>
including any assets or property of the
type constituting Collateral acquired by
the Issuer or any Guarantor from a transfer
from the Issuer or a Guarantor.
"Board of
Directors" means, with respect to any Person, the Board of
Directors of such Person, or any authorized
committee of the Board of Directors
of such Person.
"Business Day"
means a day other than a Saturday, Sunday or other day on
which banking institutions in the State of
New York are authorized or required
by law to close.
"Capital Lease
Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in
respect of a capital lease that would
at such time be required to be capitalized
on a balance sheet in accordance with
GAAP.
"Capital Stock"
means (i) in the case of a corporation, corporate stock,
(ii) in the case of a partnership or
limited liability company, partnership or
membership interests (whether general or
limited) and (iii) in the case of an
association or other business entity, any
and all shares, interests,
participations, rights or other equivalents
(however designated) of corporate
stock.
"Class A
Debentures" means the Issuer's Class A Senior Subordinated
Secured
Debentures to be issued in connection with
the Merger.
"Class A
Indenture" means the indenture under which any Class A
Debentures
are issued, as amended, restated, modified,
renewed, refunded, replaced or
refinanced in whole or in part from time to
time.
"Closing" means
the closing of a sale of Debentures.
"Code" means the
Internal Revenue Code of 1986, as amended.
"Collateral"
means Capital Stock of the Issuer's Restricted Subsidiaries,
and contract rights, Equipment and
Instruments of the Issuer and the Guarantors,
and all substitutions for and replacements,
products and proceeds (as such term
is defined in the UCC) of any of the
foregoing; provided, however, that
notwithstanding the foregoing, the
following shall not constitute, and shall not
be included in the Collateral:
(1) any Instruments with final payments due, or a final maturity
date
that is, fifteen
(15) years or more after the date such Instrument is made
or entered
into;
(2) any contracts for deed, and any rights associated
therewith;
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(3) any proceeds of Instruments, contract rights or any capital
stock
of the Issuer's
Restricted Subsidiaries; and
(4) cash of any kind, including as proceeds of any Collateral
hereunder.
"Collateral
Agent" means the Trustee or its successor or successors as
collateral agent hereunder.
"Collateral
Documents" means, collectively (i) the security agreements,
pledge agreements, intercreditor agreements
or other documents pursuant to which
the Issuer and the Guarantors grant Liens
to the Collateral Agent in the
Collateral and set forth the respective
priorities of holders of Senior Debt and
Debentureholders with respect to the
Collateral, and (ii) all other agreements
or instruments evidencing or creating any
Security Interest in favor of the
Trustee or the Collateral Agent, as the
case may be, in any or all of the
Collateral, in each case as amended,
amended and restated, extended, renewed,
supplemented or otherwise modified from
time to time in accordance with the
terms hereof and thereof.
"Commodity
Hedging Agreements" means any futures contract or other similar
agreement or arrangement designed to
protect the Issuer or any Restricted
Subsidiary against fluctuations in
commodities prices.
"Credit
Facilities" means, with respect to the Issuer and its
Restricted
Subsidiaries, one or more unsubordinated
secured or unsecured debt facilities or
commercial paper facilities with banks,
insurance companies or other
institutional lenders providing for
unsubordinated revolving credit loans,
unsubordinated term loans, unsubordinated
notes, factoring or other receivables
financing (including through the sale of
receivables to such lenders or to
special purpose entities formed to borrow
from or issue securities to such
lenders against such receivables) or
unsubordinated letters of credit or other
unsubordinated credit facilities, in each
case, as amended, restated, modified,
renewed, refunded, replaced or refinanced
in whole or in part from time to time,
in all cases whether entered into or
effective prior to or after the date
hereof.
"Currency
Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or
arrangement to which the Issuer or any
Restricted Subsidiary is a party or of
which it is a beneficiary to protect the
Issuer or any Restricted Subsidiary against
fluctuations in exchange rates.
"Debentures" has
the meaning stated in the recital of this Indenture and
more particularly means any Debentures
authenticated and delivered under this
Indenture.
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"Debenture
Guarantee" means, in respect of any Guarantor, the
unconditional
Obligation of such Guarantor as co-issuer
of the Debentures, including pursuant
to Article XI hereof.
"Debt" means,
with respect to any Person (without duplication):
(1) any indebtedness of such Person, whether or not contingent,
in
respect of
borrowed money or evidenced by bonds, Debentures, notes or
similar
instruments or letters of credit (or reimbursement agreements
in
respect thereof)
or banker's acceptances or representing Capital Lease
Obligations or
the balance deferred and unpaid of the purchase price of any
property, which
purchase price is due more than six months after the date
of placing such
property in final service or taking final delivery thereof,
or representing
any Hedging Obligations, except any such balance that
constitutes an
accrued expense or trade payable, if and to the extent any
of the foregoing
indebtedness (other than letters of credit and Hedging
Obligations)
would appear as a liability upon a balance sheet of such
Person prepared
in accordance with GAAP;
(2) all indebtedness under clause (1) of other Persons secured by
a
Lien on any
asset of such Person (whether or not such indebtedness is
assumed by such
Person) provided that the amount of indebtedness of such
Person shall be the
lesser of:
(a) the fair market value of such asset at such date of
determination; and
(b) the amount of such indebtedness of such other Persons; and
(3) to the extent not otherwise included, the Guarantee by such
Person
of any Debt
under clause (1) of any other Person;
provided,
however, that Debt shall not include:
(a) obligations and liabilities in respect of lease facilities
that
are accounted
for as operating leases in accordance with GAAP (including
Guarantees of
loans then outstanding by the lenders under any such facility
to the lessor
thereunder);
(b) obligations of the Issuer or any of its Restricted
Subsidiaries
arising from
agreements of the Issuer or a Restricted Subsidiary providing
for customary
indemnification, adjustment of purchase price or similar
obligations, in
each case, incurred or assumed in connection with the
disposition of
any business, assets or a Subsidiary, other than guarantees
of Debt incurred
by any Person acquiring all or any
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portion of such
business, assets or a Subsidiary for the purpose of
financing such
acquisition; provided, however, that:
(i) such obligations are not reflected on the balance sheet of
the Issuer or any Restricted Subsidiary (contingent obligations
referred to in a footnote to financial statements and not
otherwise
reflected on the balance sheet will not be deemed to be reflected
on
such balance sheet for purposes of this clause (i)); and
(ii) the maximum assumable liability in respect of all such
obligations shall at no time exceed the gross proceeds
including
noncash proceeds (the fair market value of such noncash proceeds
being
measured at the time received and without giving effect to any
subsequent changes in value) actually received by the Issuer and
its
Restricted Subsidiaries in connection with such disposition,
(c) (i) obligations under (or constituting reimbursement
obligations
with respect to)
performance bonds, surety bonds, appeal bonds, completion
guarantees or
similar instruments issued in connection with the ordinary
course of a
Permitted Business, including letters of credit in respect of
workers'
compensation claims, security or lease deposits and
self-insurance;
provided, however, that upon the drawing of such letters of
credit or other
instrument, such obligations are reimbursed within 30 days
following such
drawing, and (ii) obligations arising from the honoring by a
bank or other
financial institution of a check, draft or similar instrument
inadvertently
(except in the case of day-light overdrafts) drawn against
insufficient
funds in the ordinary course of business; provided, however,
that such
obligations are extinguished within three business days of
incurrence;
or
(d) purchase price holdbacks in connection with purchasing in
the
ordinary course
of business of the Issuer and its Restricted Subsidiaries.
Except as
otherwise expressly provided in this definition, the amount of
any Debt outstanding as of any date shall
be:
(a) the accreted value thereof, in the case of any Debt issued at
a
discount to
par;
(b) the principal amount thereof in the case of any other Debt;
and
(c) with respect to contingent obligations, the maximum liability
upon
the occurrence
of the contingency giving rise to the obligation at such
date.
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"Default" means
any event that is, or with the passage of time or the
giving of notice or both would be, an Event
of Default.
"Definitive
Debentures" means Debentures that are in the form of Exhibit A
attached hereto.
"Domestic
Subsidiary" means any Restricted Subsidiary of the Issuer other
than a Foreign Subsidiary.
"Equipment"
means all of the Issuer's and each Guarantor's now owned and
hereafter acquired machinery, equipment,
furniture, furnishings, fixtures, and
other tangible personal property (except
Inventory), including office equipment;
together with all component and auxiliary
parts and supplies used or to be used
in connection therewith; wherever any of
the foregoing is located.
"Equity
Interests" means Capital Stock and all warrants, options or
other
rights to acquire Capital Stock (but
excluding any debt security that is
convertible into, or exchangeable for,
Capital Stock).
"Exchange Act"
means the Securities Exchange Act of 1934, as amended.
"Existing Debt"
means Debt of Issuer and its Restricted Subsidiaries in
existence on the date hereof, until such
amounts are repaid.
"fair market
value" means, with respect to any asset, the price (after
taking into account any liabilities
relating to such assets) that would be
negotiated in an arm's-length transaction
for cash between a willing seller and
a willing and able buyer, neither of which
is under any compulsion to complete
the transaction.
"Foreign
Subsidiary" means any Subsidiary of the Issuer formed under the
laws of any jurisdiction other than the
United States or any political
subdivision thereof substantially all of
the assets of which are located outside
of the United States or that conducts
substantially all of its business outside
of the United States.
"GAAP" means
generally accepted accounting principles in the United States
of America as in effect from time to time,
including those set forth in the
opinions and pronouncements of the
Accounting Principles Board of the American
Institute of Certified Public Accountants
and statements and pronouncements of
the Financial Accounting Standards Board or
in such other statements by such
other entity as have been approved by a
significant segment of the accounting
profession. All computations based on GAAP
contained in this Indenture shall be
computed in conformity with GAAP as in
effect as of the date hereof.
-6-
<PAGE>
"General
Partner" means the general partner of Issuer, and initially
means
UMT Services, Inc., a Delaware
corporation.
"Government
Notes" means direct obligations (or certificates representing
an ownership interest in such obligations)
of the United States of America
(including any agency or instrumentality
thereof) for the payment of which the
full faith and credit of the United States
of America is pledged and which are
not callable or redeemable at the issuer's
option.
"Guarantee"
means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary
course of business), direct or
indirect, in any manner (including by
co-issuance of the relevant Debt or by
letters of credit and reimbursement
agreements in respect thereof), of all or
any part of any Debt.
"Guarantors"
means
(1) UMTH Lending Company, L.P., a Delaware limited partnership;
(2) UMTH Land Development, L.P., a Delaware limited
partnership;
(3) UMTH Loan Servicing, L.P., a Delaware limited partnership;
(4) UMTH Funding Services, L.P., a Delaware limited
partnership;
(5) UMTH General Services, L.P., a Delaware limited
partnership;
(6) UMTH Lending Company - FL, L.P., a Delaware limited
partnership;
(7) Ready America Funding, L.P., a Delaware limited
partnership;
(8) Prospect Services Corp., a Texas corporation;
(9) REO Property Company, L.P., a Texas limited partnership;
and
(10) each Restricted Subsidiary that becomes obligated on a
Debenture
Guarantee by executing and delivering a supplemental indenture
assuming the obligations of a Guarantor under this Indenture after
the
date hereof,
and their respective successors and
assigns, in each case until released from
its Debenture Guarantee in accordance with
the terms of this Indenture.
"Hedging
Obligations" means, with respect to any Person, the obligations
of
such Person under Interest Rate Agreements,
Currency Agreements or Commodity
Hedging Agreements.
-7-
<PAGE>
"Holder" or
"Debentureholder" means the Person in whose name a Debenture is
registered on the Registrar's books.
"Indenture"
means this Indenture as amended or supplemented from time to
time.
"Instruments"
means all instruments as such term is defined in the UCC, now
owned or hereafter acquired by Issuer and
each Guarantor.
"Interest Rate
Agreement" means any interest rate swap agreement, interest
rate cap agreement, repurchase agreement,
futures contract or other financial
agreement or arrangement designed to
protect the Issuer or any Restricted
Subsidiary against fluctuations in interest
rates.
"Inventory" has
the meaning assigned to it in the UCC.
"Issue Date"
means any date on which Debentures are originally issued.
"Lien" means,
with respect to any asset, any mortgage, deed of trust, deed
to secure debt, lien, pledge, charge,
security interest or encumbrance of any
kind in respect of such asset, whether or
not filed, recorded or otherwise
perfected under applicable law (including
any conditional sale or other title
retention agreement or any lease in the
nature thereof) ; provided that in no
event shall an operating lease be deemed to
constitute a Lien.
"Merger" means
the merger of UMT with and into Issuer, with Issuer as the
surviving entity.
"Non-Recourse
Debt" means Debt of an Unrestricted Subsidiary:
(1) as to which neither the Issuer nor any Restricted Subsidiary
(a)
provides credit
support of any kind (including any undertaking, agreement
or instrument
that would constitute Debt), (b) is directly or indirectly
liable as a
guarantor or otherwise, or (c) constitutes the lender;
(2) no default with respect to which (including any rights that
the
holders thereof
may have to take enforcement action against an Unrestricted
Subsidiary)
would permit upon notice, lapse of time or both any holder of
any other Debt
(other than the Debentures) of the Issuer or any Restricted
Subsidiary to
declare a default on the other Debt or cause the payment
thereof to be
accelerated or payable prior to its stated maturity; and
-8-
<PAGE>
(3) as to which the lenders (or any agents or trustees on their
behalf) have
been notified in writing that they will not have any recourse
to the Equity
Interests or assets of the Issuer or any Restricted
Subsidiary.
"Obligations"
means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages,
Guarantees and other liabilities
payable under the documentation governing
any Debt, in each case whether now or
hereafter existing, renewed or
restructured, whether or not from time to time
decreased or extinguished and later
increased, created or incurred, whether or
not arising on or after the commencement of
a proceeding under Title 11, U.S.
Code or any similar federal or state law
for the relief of debtors (including
post-petition interest) and whether or not
allowed or allowable as a claim in
any such proceeding.
"Officers" means
any of the following: President, Chief Operating Officer,
Treasurer, Chief Financial Officer,
Executive Vice President, Senior Vice
President, Vice President, Assistant Vice
President, Secretary, Assistant
Secretary or any other officer of the
General Partner or a Guarantor or the
general partner thereof, as the case may
be, reasonably acceptable to the
Trustee.
"Officers'
Certificate" means a certificate signed by two Officers.
"Opinion of
Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. As to
matters of fact, an Opinion of
Counsel may conclusively rely on an
Officers' Certificate, without any
independent investigation.
"Pari Passu
Debt" means any Debt of the Issuer or any Guarantor that ranks
pari passu in right of payment with the
Debentures or the relevant Debenture
Guarantee.
"Payment" means,
with respect to the Debentures, any payment, whether in
cash or other assets or property, of
interest, principal, premium or any other
amount on, of or in respect of the
Debentures, any other acquisition of
Debentures and any deposit into the trust
described in Article VIII. The verb
"pay" has a correlative meaning.
"Permitted
Business" means the businesses conducted by the Issuer and its
Subsidiaries as of the date of this
Indenture and any other business reasonably
related, complementary or incidental to any
of those businesses.
"Permitted
Liens" means
(1) Liens securing (i) the Debentures and Debenture Guarantees
(and
related
Obligations), and (ii) Senior Debt, which Liens under this
clause
(ii) may be
senior to the Lien securing the Debentures and Debenture
Guarantees;
-9-
<PAGE>
(2) Liens in favor of the Issuer or any Restricted Subsidiary;
(3) Liens on property (i) existing at the time of acquisition
thereof
or (ii) of a
Person existing at the time such Person is merged into or
consolidated
with or acquired by the Issuer or any Restricted Subsidiary of
the Issuer;
provided that such Liens were in existence prior to the
contemplation of
such acquisition, merger or consolidation and do not
extend to any
assets other than those acquired or to those of the Person
merged into or
consolidated with the Issuer or a Restricted Subsidiary, as
the case may
be;
(4) Liens that secure Acquired Debt of a Person, provided that
such
Liens do not
extend to any assets other than those of the Person that
became a
Restricted Subsidiary of the Issuer;
(5) banker's Liens, rights of setoff and Liens to secure the
performance of
bids, tenders, trade or government contracts (other than for
borrowed money),
leases, licenses, statutory obligations, surety or appeal
bonds,
performance bonds or other obligations of a like nature incurred
in
the ordinary
course of business;
(6) Liens to secure Debt (including Capital Lease Obligations) for
the
purpose of
financing or refinancing all or any part of the lease, purchase
price or cost of
construction or improvement of any property (real or
personal) or
other assets that are used or useful in the business of the
Issuer or such
Restricted Subsidiary (whether through the direct purchase
of assets or the
Capital Stock of any Person owning such assets and whether
such Debt is
owed to the seller or Person carrying out such construction or
improvement or
to any third party); provided that such Debt exists at the
date of such purchase
or transaction, or is created within 180 days
thereafter;
(7) Liens existing on the date hereof;
(8) (A) carriers', warehousemen's, mechanics', landlords',
materialmen's,
repairmen's or other like Liens arising in the ordinary
course of
business and (B) Liens for taxes, assessments or governmental
charges or
claims, in each case, that are not yet due or delinquent or
that
are bonded, as
the case may be, or that are being contested in good faith
and by
appropriate proceedings, provided that any reserve or other
appropriate
provision as shall be required in conformity with GAAP shall
have been made
therefor;
(9) Liens, pledges or deposits in connection with (A) workmen's
compensation
obligations and general liability exposure of the Issuer and
its Restricted
Subsidiaries and (B) unemployment insurance and other social
security
legislation;
-10-
<PAGE>
(10) Liens on goods
(and the proceeds thereof) and documents of title
and the property
covered thereby securing Debt in respect of commercial
letters of
credit;
(11) (A) mortgages, Liens, security interests, restrictions,
encumbrances or
any other matters of record that have been placed by any
developer,
landlord or other third party on property over which the Issuer
or any
Restricted Subsidiary of the Issuer has easement rights or on
any
real property
leased by the Issuer or any Restricted Subsidiary and
subordination or
similar agreements relating thereto that do not
individually or
in the aggregate materially impair the value of the
interests of the
Issuer and its Restricted Subsidiaries in such property
and (B) any
condemnation or eminent domain proceedings affecting any real
property;
(12) Liens arising by reason of a judgment, decree or court order,
to
the extent not
otherwise resulting in an Event of Default, and any Liens
that are
required to protect or enforce any rights in any
administrative,
arbitration or
other court proceedings in the ordinary course of business;
(13) Liens (a) on assets or properties subject to a Permitted
Lien
securing Debt
permitted by this Indenture to be incurred, securing Interest
Rate Agreements
in respect of such Debt, or (b) securing Hedging
Obligations
entered into in the ordinary course of business;
(14) without limitation of clause (1) above, Liens securing
Refinancing Debt
or amendments or renewals of Liens that were permitted to
be incurred;
provided, in each case, that such Liens do not extend to any
additional
property or asset of the Issuer or a Restricted Subsidiary;
(15)
any provision for the retention of title to an asset by the
vendor or
transferor of such asset which asset is acquired by the Issuer
or
any Restricted
Subsidiary in a transaction entered into in the ordinary
course of
business of the Issuer or such Restricted Subsidiary;
(16) Liens that secure Debt incurred by Foreign Subsidiaries
for
working capital
purposes (including acquisitions), and by the Issuer or any
of its
Restricted Subsidiaries of Guarantees of Debt of Foreign
Subsidiaries or
foreign joint ventures; and
(17) Liens incurred in the ordinary course of business of the
Issuer
or any
Restricted Subsidiary of the Issuer with respect to obligations
that
do not exceed
$10 million at any one time outstanding.
-11-
<PAGE>
"Person" means
any individual, corporation, partnership, limited liability
company, joint venture, association,
joint-stock company, trust, unincorporated
organization, government or any agency or
political subdivision thereof or any
other entity.
"Preferred
Stock" means, with respect to any Person, any Capital Stock of
such Person (however designated) that is
preferred as to the payment of
dividends or distributions, or as to the
distribution of assets upon any
voluntary or involuntary liquidation or
dissolution of such Person, over shares
of Capital Stock of any other class of such
Person.
"Principal" of a
Debenture means the principal of the Debenture plus the
premium, if any, payable on the Debenture
that is due or overdue or is to become
due at the relevant time.
"Responsible
Officer" means any officer within the Corporate Trust
Administration of the Trustee (or any
successor group of the Trustee) or any
other officer of the Trustee customarily
performing functions similar to those
performed by any of the above designated
officers and also means, with respect
to a particular corporate trust matter, any
other officer to whom such matter is
referred because of his knowledge of and
familiarity with the particular
subject.
"Restricted
Subsidiary" of a Person means any Subsidiary of such Person
that is not an Unrestricted Subsidiary.
"SEC" means the
Securities and Exchange Commission.
"Secured Debt"
means any Debt of the Issuer or any Guarantor secured by a
Lien (other than a Lien that is
subordinated to the Lien of the Trustee on the
Collateral).
"Securities Act"
means the Securities Act of 1933, as amended.
"Security
Interests" means the Liens on the Collateral created by the
Collateral Documents in favor of the
Trustee for the benefit of the Holders.
"Senior Debt"
means any Debt or other Obligations of the Issuer or any
Guarantor incurred under or in connection
with (i) the Credit Facilities, (ii)
the Class A Indenture, or (iii) the UMT
Indebtedness.
"Senior Officer"
means the President or the Chief Operating Officer of the
General Partner.
"Significant
Subsidiary" means (a) any Restricted Subsidiary that would be
a "significant subsidiary" as defined in
Article I, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act,
as such regulation is in effect on
the date hereof or (b) any one
-12-
<PAGE>
or more Restricted Subsidiaries of the
Issuer that (1) are not otherwise
Significant Subsidiaries, (2) as to which
any event described in clause (6), (7)
or (10) of Section 6.01 herein has occurred
and is continuing and (3) would
together constitute a Significant
Subsidiary under clause (a) of this
definition.
"Stated
Maturity" means, with respect to any installment of interest or
principal of, or any other amount payable
in respect of, any series of Debt, the
date on which such interest principal or
other amount was scheduled to be paid
in the documentation governing such Debt,
and shall not include any contingent
obligations to repay, redeem or repurchase
any such interest principal or other
amount prior to the date scheduled for the
payment thereof.
"Subordinated
Debt" means any Debt of the Issuer or any Guarantor (whether
outstanding on the date hereof or
thereafter incurred) that is subordinate or
junior in right of payment to the
Debentures or the applicable Debenture
Guarantee pursuant to written
agreement.
"Subsidiary"
means, with respect to any Person, means any corporation,
partnership, limited liability company,
joint venture or other legal entity of
which such Person (either directly or
through or together with another
Subsidiary of such Person) owns 50% or more
of the voting stock, value of or
other Equity Interests (voting or
non-voting) of such corporation, partnership,
limited liability company, joint venture or
other legal entity; provided,
however, that the term "Subsidiary" does
not include United Development Funding,
L.P., a Delaware limited partnership.
"Subsidiary
Guarantors" means Guarantors that are Subsidiaries of Issuer.
"TIA" means the
Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of
this Indenture, unless as stated in
Section 9.03 hereof.
"Transfer" means
to sell, assign, transfer, lease (other than pursuant to
an operating lease entered into in the
ordinary course of business), convey or
otherwise dispose of, including by sale and
leaseback transaction,
consolidation, merger, liquidation,
dissolution or otherwise, in one transaction
or a series of transactions.
"Trustee" means
the party named as such in this Indenture until a successor
replaces it and, thereafter, means the
successor.
"Trust Officer"
means, when used with respect to the Trustee, any officer
within the corporate trust department of
the Trustee, including any vice
president, assistant vice president,
assistant secretary, assistant treasurer,
trust officer or any other officer of the
Trustee who customarily performs
functions similar to those performed by the
persons who at the time shall be
such officers, respectively, or to whom any
corporate trust matter is referred
-13-
<PAGE>
because of such person's knowledge of and
familiarity with the particular
subject and who shall have direct
responsibility for the administration of this
Indenture.
"UMT" means
United Mortgage Trust, a Maryland business trust.
"UMT
Indebtedness" means any promissory notes issued by the Issuer or
its
Subsidiaries to UMT with regard to amounts
loaned to the Issuer or its
Subsidiaries by UMT.
"Uniform
Commercial Code" or "UCC" means the New York Uniform Commercial
Code as in effect from time to time.
"Unrestricted
Subsidiary" means (1) any Subsidiary of the Issuer that is
designated an Unrestricted Subsidiary by
the General Partner of the Issuer in
the manner provided in Section 4.05, and
(2) any Subsidiary of an Unrestricted
Subsidiary; but, in each case, only to the
extent permissible under this
Indenture, as described in Section
4.05.
"Voting Stock"
of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote
in the election of the Board of
Directors or other governing body of such
Person.
"Wholly Owned
Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the
outstanding Capital Stock or other
ownership interests of which (other than
directors' qualifying shares) shall at
the time be owned by such Person or by one
or more Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 1.02.
Other Definitions.
<TABLE>
<CAPTION>
Term
Defined in Section
----
------------------
<S>
<C>
"Accredited
Investors".....................................
2.01(b)
"automatic
stay"...........................................
8.02(f)
"Bankruptcy
Law"...........................................
6.01
"Covenant
Defeasance"......................................
8.01(c)
"CUSIP"....................................................
2.12
"Custodian"................................................
6.01
"Designation"..............................................
4.05
"estate"...................................................
8.02(f)
"Event of
Default".........................................
6.01
"Guaranteed
Obligations"...................................
11.01
"Guarantor Payment Blockage Notice"
13.03(b)
"Indemnified
Party"........................................
7.07
"Initial
Debentures".......................................
Preamble
</TABLE>
-14-
<PAGE>
<TABLE>
<CAPTION>
Term
Defined in Section
----
------------------
<S>
<C>
"Legal
Defeasance".........................................
8.01(b)
"Legal
Holiday"............................................
14.08
"Notice of
Default"........................................
6.01
"outstanding"..............................................
8.01(b)
"Paying
Agent".............................................
2.03
"Payment Blockage
Notice"..................................
12.03(b)
"Permanent Regulation S Global
Debenture"..................
2.01(b)
"Physical
Debenture".......................................
2.01(c)
"protected
purchaser"......................................
2.06
"Registrar"................................................
2.03
"Regulation
S".............................................
2.01(b)
"Released
Interests".......................................
10.03
"Release
Notice"...........................................
10.03(a)
"Restricted
Debenture".....................................
2.01(a)
"Revocation"...............................................
4.05
"Subscription
Agreement"...................................
2.01(b)
"Trustee"..................................................
8.03
"Valuation
Date"...........................................
10.03(a)
</TABLE>
SECTION 1.03.
Incorporation by Reference of Trust Indenture Act. Other than
as set forth herein, this Indenture is
subject to the mandatory provisions of
the TIA, which are incorporated by
reference in and made a part of this
Indenture. The following TIA terms have the
following meanings:
"Commission"
means the SEC.
"indenture notes
" means the Debentures.
"indenture
security holder" means a Debenture Holder.
"indenture to be
qualified" means this Indenture.
"indenture
trustee" or "institutional trustee" means the Trustee.
"obligor" on the
indenture notes means the Issuer and any other obligor on
the indenture Debentures.
-15-
<PAGE>
All other TIA
terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute
or defined by SEC rule have the
meanings assigned to them by such
definitions.
SECTION 1.04.
Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned
to it in
accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words
in the singular include the plural and words in the plural
include the
singular;
(6) unsecured Debt shall not be deemed to be subordinate or junior
to
Secured Debt
merely by virtue of its nature as unsecured Debt; and
(7) the principal amount of any non-interest bearing or other
discount
security at any
date shall be the principal amount thereof that would be
shown on a
balance sheet of the Issuer dated such date prepared in
accordance with
GAAP and accretion of principal on such security shall not
be deemed to be
the incurrence of Debt.
ARTICLE II
THE DEBENTURES
SECTION 2.01.
Form and Dating. (a) The Initial Debentures issued on the
date hereof and the Trustee's certificate
of authentication shall be
substantially in the form of Exhibit A,
which is hereby incorporated in and
expressly made a part of this Indenture,
and as otherwise provided in this
Article II. Any Additional Debentures shall
be issued in the form of Exhibit A,
if such Debenture is issued other than
pursuant to an effective registration
statement under the Securities Act (each
Debenture issued substantially in the
form of Exhibit A being hereafter referred
to as a "Restricted Debenture"). The
Debentures may have notations, legends or
endorsements required by law, stock
exchange rule, agreements to which the
Issuer or any Guarantor is subject, if
any, or usage; provided that any such
notation, legend or endorsement is in a
form acceptable to the Issuer; and
provided, further, that no Debenture may be
issued without the Restricted Transfer
Legend. Each Debenture shall be
-16-
<PAGE>
dated the date of its authentication. The
terms of the Debentures set forth in
Exhibit A are part of the terms of this
Indenture. The Debentures shall be
issuable only in registered form without
coupons and only in denominations of
$1,000 and integral multiples thereof.
(b) The
Debentures issued on the date hereof and at each subsequent
Closing
are being offered and sold by the Issuer
pursuant to subscription agreements
(each a "Subscription Agreement"). Unless
an offering of Debentures is
registered under the Securities Act, the
Debentures will be offered and sold by
the Issuer only (i) to "Accredited
Investors" (within the meaning of Rule 501
under the Securities Act) ("Accredited
Investors") and (ii) in reliance on
Regulation S under the Securities Act
("Regulation S"). After such initial
offers and sales, Debentures that are
Restricted Debentures may be transferred
in reliance on Regulation S and to
Accredited Investors in accordance with
certain transfer restrictions. Initial
Debentures issued on a Closing Date and
Additional Debentures shall be issued in
the form of permanent certificated
securities in registered form in
substantially the form set forth in Exhibit A
attached hereto (the "Physical
Debentures").
(c) All
Debentures issued hereunder, including the Initial Debentures
and
any Additional Debentures, shall be treated
as a single class of securities
under this Indenture.
SECTION 2.02.
Execution and Authentication. One or more Officers of the
General Partner shall sign the Debentures
by manual or facsimile signature.
If an Officer
whose signature is on a Debenture no longer holds that office
at the time the Trustee authenticates the
Debenture, the Debenture shall be
valid nevertheless.
A Debenture
shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of
authentication on the Debenture. The signature
shall be conclusive evidence that the
Debenture has been authenticated under
this Indenture.
The Trustee
shall authenticate and make available for delivery upon a
written order of the General Partner signed
by two of its Officers Debentures
for original issue on the date hereof and
on subsequent Issue Dates in an
aggregate principal amount of up to
$25,000,000. Such order shall specify the
amount of the Debentures to be
authenticated, and the date on which the original
issue of Debentures is to be authenticated.
The aggregate principal amount of
Debentures outstanding at any time may not
exceed $25,000,000 except as provided
in Section 2.07.
The Trustee may
appoint an authenticating agent reasonably acceptable to
the Issuer to authenticate the Debentures.
Any such appointment shall be
evidenced by an instrument signed by a
Trust Officer of the Trustee, a copy of
which shall be furnished to the Issuer.
Unless limited by the terms of such
appointment, an authenticating agent may
authenticate
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<PAGE>
Debentures whenever the Trustee may do so.
After any such appointment, each
reference in this Indenture to
authentication by the Trustee includes
authentication by such agent. An
authenticating agent has the same rights as any
Registrar, Paying Agent or agent for
service of notices and demands.
SECTION 2.03.
Registrar and Paying Agent. The Issuer shall maintain an
office or agency where Debentures may be
presented for registration of transfer
or for exchange (the "Registrar") and an
office or agency where Debentures may
be presented for payment (the "Paying
Agent"). The Registrar shall keep a
register of the Debentures and of their
transfer and exchange. The Issuer may
have one or more co-registrars and one or
more additional paying agents. The
term "Paying Agent" includes any additional
paying agent.
The Issuer 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
Issuer shall fail to maintain any such
required office or agency or shall fail
to furnish the Trustee with the address
thereof, such presentations, surrenders,
notices and demands may be made or served
at the address of the Trustee set
forth in Section 14.02.
The Issuer may
also from time to time designate one or more other offices
or agencies where the Debentures may be
presented or surrendered for any or all
such purposes and may from time to time
rescind such designations. The Issuer
will give prompt 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 Issuer
initially designates the Corporate Trust Office of the Trustee
specified in Section 14.02 as such office
of the Issuer in accordance with this
Section 2.03.
The Issuer shall
enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not
a party to this Indenture, which
shall incorporate the terms of the TIA. The
agreement shall implement the
provisions of this Indenture that relate to
such agent. The Issuer shall notify
the Trustee of the name and address of any
such agent. If the Issuer fails to
maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be
entitled to appropriate compensation
therefor pursuant to Section 7.07. Either
the Issuer or any domestically organized
Wholly Owned Restricted Subsidiary may
act as Paying Agent, Registrar,
co-registrar or transfer agent.
The Issuer
initially appoints the Trustee as Registrar and Paying Agent in
connection with the Debentures.
The Issuer may
remove any Registrar or Paying Agent upon written notice to
such Registrar or Paying Agent and to the
Trustee, provided that no such removal
shall become
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effective until payment to the Registrar or
Paying Agent of any fees due to
either of them from the Issuer, other than
fees which are currently being
contested in good faith, and (1) acceptance
of an appointment by a successor as
evidenced by an appropriate agreement
entered into by the Issuer and such
successor Registrar or Paying Agent, as the
case may be, and delivered to the
Trustee or (2) notification to the Trustee
that the Trustee shall serve as
Registrar or Paying Agent until the
appointment of a successor in accordance
with clause (1) above. The Registrar or
Paying Agent may resign at any time upon
not less than three Business Days' prior
written notice to the Issuer; provided,
however, that the Trustee may resign as
Paying Agent or Registrar only if the
Trustee also resigns as Trustee in
accordance with Section 7.08.
SECTION 2.04.
Paying Agent To Hold Money in Trust. Prior to 10:00 a.m. on
each due date of the principal and interest
on any Debenture, the Issuer shall
deposit with the Paying Agent (or if the
Issuer or a permitted Wholly Owned
Restricted Subsidiary is acting as Paying
Agent, segregate and hold in trust for
the benefit of the Persons entitled
thereto) a sum sufficient to pay such
principal and interest when so becoming
due. The Issuer shall require each
Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent
shall hold in trust for the benefit of
Debentureholders or the Trustee all money
held by the Paying Agent for the payment of
principal of or interest on the
Debentures and shall notify the Trustee in
writing of any default by the Issuer
in making any such payment within one
Business Day thereof. If the Issuer or a
permitted Wholly Owned Restricted
Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying
Agent and hold it as a separate trust
fund. The Issuer at any time may require a
Paying Agent to pay all money held by
it to the Trustee and to account for any
funds disbursed by the Paying Agent.
Upon complying with this Section, the
Paying Agent shall have no further
liability for the money delivered to the
Trustee.
Any money
deposited with any Paying Agent, or then held by the Issuer or
a
permitted Wholly Owned Restricted
Subsidiary in trust for the payment of
principal or interest on any Debenture and
remaining unclaimed for two years
after such principal and interest has
become due and payable shall be paid to
the Issuer at its request, or, if then held
by the Issuer or a permitted Wholly
Owned Restricted Subsidiary, shall be
discharged from such trust; and the
Debentureholders shall thereafter, as
general unsecured creditors, look only to
the Issuer for payment thereof, and all
liability of the Paying Agent with
respect to such money, and all liability of
the Issuer or such permitted Wholly
Owned Restricted Subsidiary as trustee
thereof, shall thereupon cease.
SECTION 2.05.
Debentureholder 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
Debentureholders. If the Trustee is not the
Registrar, the Issuer shall furnish, or
cause the Registrar to furnish, to the
Trustee, in writing at least five Business
Days before
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each interest payment date and at such
other times as the Trustee may request in
writing, a list in such form and as of such
date as the Trustee may reasonably
require of the names and addresses of
Debentureholders.
SECTION 2.06.
Transfer and Exchange. Transfers of Debentures are restricted
in accordance with Section 2.13. The
Debentures shall be issued in registered
form and shall be transferable only upon
the surrender of a Debenture for
registration of transfer. When a Debenture
is presented to the Registrar or a
co-registrar with a request to register a
transfer, the Registrar shall register
the transfer as requested if the following
requirements (and any additional
requirements imposed by any amendments to
Section 8.401 of the Uniform
Commercial Code or any replacement or
successor section) are met: (i) the Person
seeking registration of transfer is
eligible to have the Debenture registered in
the name of the Person; (ii) the
indorsement or instruction for transfer is made
by the appropriate Person or by an agent
who has actual authority to act on
behalf of the appropriate Person; (iii)
reasonable assurance is given the
Registrar that the indorsement or
instruction is genuine and authorized; (iv)
any applicable law relating to the
collection of taxes has been complied with;
(v) the transfer does not violate the
Restricted Debentures Legend or the
Restricted Transfer Legend; (vi) a demand
that the Issuer or the Registrar not
register the transfer has not become
effective under Section 8.403 of the UCC,
or the Issuer has complied has complied
with Section 8.403(b) of the UCC but no
legal process or indemnity bond is obtained
as provided in Section 8.403(d) of
the UCC; and (vii) the transfer is in fact
rightful or is to a protected
purchaser as defined in Section 8.303 of
the UCC (a "protected purchaser"). When
a Debenture is presented to the Registrar
or a co-registrar with a request to
exchange them for an equal principal amount
of Debentures of other
denominations, the Registrar shall make the
exchange as requested if the same
requirements are met. To permit
registration of transfers and exchanges, the
Issuer shall execute and the Trustee shall
authenticate Debentures at the
Registrar's or co-registrar's request. The
Issuer may require payment of a sum
sufficient to pay all taxes, assessments or
other governmental charges in
connection with any transfer or exchange
pursuant to this Section.
Prior to the due
presentation for registration of transfer of any
Debenture, the Issuer, the Guarantors, the
Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and
treat the Person in whose name a
Debenture is registered as the absolute
owner of such Debenture for the purpose
of receiving payment of principal of and
accrued and unpaid interest, if any, on
such Debenture and for all other purposes
whatsoever, whether or not such
Debenture is overdue, and none of the
Issuer, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall be
affected by notice to the contrary.
All Debentures
issued upon any transfer or exchange pursuant to this
Section 2.06 will evidence the same debt
and will be entitled to the same
benefits under this Indenture as the
Debentures surrendered upon such transfer
or exchange.
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<PAGE>
The Trustee
shall have no obligation or duty to monitor, determine or
inquire as to compliance with any
restrictions on transfer imposed under this
Indenture or under applicable law with
respect to any transfer of any interest
in any Debenture other than to require
delivery of such certificates and other
documentation or evidence as are expressly
required by, and to do so if and when
expressly required by the terms of, this
Indenture, and to examine the same to
determine substantial compliance as to form
with the express requirements
hereof.
SECTION 2.07.
Replacement Debentures. If a mutilated Debenture is
surrendered to the Registrar or if the
Holder of a Debenture claims that the
Debenture has been lost, destroyed or
wrongfully taken, the Issuer shall issue
and the Trustee shall authenticate a
replacement Debenture if the Holder (i)
satisfies the Issuer or the Trustee within
a reasonable time after he has notice
of such loss, destruction or wrongful
taking and the Registrar does not register
a transfer prior to receiving such
notification, (ii) makes such request to the
Issuer or the Trustee prior to the
Debenture being acquired by a protected
purchaser and (iii) satisfies any other
reasonable requirements of the Trustee
and the Issuer including evidence of the
destruction, loss or theft of the
Debenture. Such Holder shall furnish an
indemnity bond sufficient in the
judgment of the Trustee to protect the
Issuer, the Trustee, the Paying Agent,
the Registrar and any co-registrar from any
loss that any of them may suffer if
a Debenture is replaced. The Issuer and the
Trustee may charge the Holder for
their expenses in replacing a Debenture
including the payment of a sum
sufficient to cover any tax or other
governmental charge that may be required.
In the event any such mutilated, lost,
destroyed or wrongfully taken Debenture
has become or is about to become due and
payable, the Issuer in its discretion
may pay such Debenture instead of issuing a
new Debenture in replacement
thereof.
Every
replacement Debenture is an additional obligation of the
Issuer.
The provisions
of this Section 2.07 are exclusive and shall preclude (to
the extent lawful) all other rights and
remedies with respect to the replacement
or payment of mutilated, lost, destroyed or
wrongfully taken Debentures.
SECTION 2.08.
Outstanding Debentures. Debentures outstanding at any time
are all Debentures authenticated by the
Trustee except for those canceled by it,
those delivered to it for cancellation and
those described in this Section as
not outstanding. A Debenture does not cease
to be outstanding because the Issuer
or an Affiliate of the Issuer holds the
Debenture.
If a Debenture
is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the
Issuer receive proof satisfactory to them
that the replaced Debenture is held by a
protected purchaser.
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<PAGE>
If the Paying
Agent segregates and holds in trust, in accordance with this
Indenture, on a maturity date money
sufficient to pay all principal and interest
payable on that date with respect to the
Debentures (or portions thereof)
maturing, and the Paying Agent is not
prohibited from paying such money to the
Debentureholders on that date pursuant to
the terms of this Indenture, then on
and after that date such Debentures (or
portions thereof) cease to be
outstanding and interest on them ceases to
accrue.
SECTION 2.09.
Temporary Debentures. Until Definitive Debentures are ready
for delivery, the Issuer may prepare and
the Trustee shall authenticate
temporary Debentures. Temporary Debentures
shall be substantially in the form of
Definitive Debentures but may have
variations that the Issuer considers
appropriate for temporary Debentures.
Without unreasonable delay, the Issuer
shall prepare and the Trustee shall
authenticate Definitive Debentures and
deliver them in exchange for temporary
Debentures upon surrender of such
temporary Debentures at the office or
agency of the Issuer, without charge to
the Holder.
SECTION 2.10.
Cancellation. The Issuer at any time may deliver Debentures
to the Trustee for cancellation. The
Registrar and the Paying Agent shall
forward to the Trustee any Debentures
surrendered to them for registration of
transfer, exchange or payment. The Trustee
and no one else shall cancel all
Debentures surrendered for registration of
transfer, exchange, payment or
cancellation and deliver canceled
Debentures to the Issuer in accordance with
the Trustee's customary procedures. The
Issuer may not issue new Debentures to
replace Debentures they have paid or
delivered to the Trustee for cancellation.
The Trustee shall not authenticate
Debentures in place of canceled Debentures
other than pursuant to the terms of this
Indenture.
SECTION 2.11.
Defaulted Interest. If the Issuer defaults in a payment of
interest on the Debentures, the Issuer
shall pay the defaulted interest (plus
interest on such defaulted interest to the
extent lawful) in any lawful manner.
The Issuer may pay the defaulted interest
to the persons who are
Debentureholders on a subsequent special
record date. The Issuer shall fix or
cause to be fixed any such special record
date and payment date to the
reasonable satisfaction of the Trustee and
shall promptly mail or cause to be
mailed to each Debentureholder a notice
that states the special record date, the
payment date and the amount of defaulted
interest to be paid.
The Issuer may
make payment of any defaulted interest in any other lawful
manner not inconsistent with the
requirements (if applicable) of any Debentures
exchange on which the Debentures may be
listed, and upon such notice as may be
required by such exchange, if, after notice
given by the Issuer to the Trustee
of the proposed payment pursuant to this
paragraph, such manner of payment shall
be deemed practicable by the Trustee.
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<PAGE>
SECTION 2.12.
CUSIP Numbers. The Issuer in issuing the Debentures may use
"CUSIP" numbers (if then generally in use);
provided, however, that no
representation is made as to the
correctness of such numbers either as printed
on the Debentures, and reliance may be
placed only on the other identification
numbers printed on the Debentures. The
Issuer will promptly notify the Trustee
of any change in "CUSIP" numbers.
SECTION 2.13.
Special Transfer Restrictions and Provisions. Debentures, or
beneficial interests therein, shall not be
transferable without the prior
written consent of the General Partner,
which consent may be withheld in the
General Partner's discretion. In addition,
unless and until a Restricted
Debenture is transferred or exchanged under
an effective registration statement
under the Securities Act, the following
provisions shall apply:
(a) Transfers to
Accredited Investors. The following provisions shall apply
with respect to the registration of any
proposed transfer of a Restricted
Debenture to any Accredited Investor (other
than pursuant to Regulation S):
(i) The Registrar shall register the transfer of any Restricted
Debenture by a Holder if (x) the requested transfer is (I) at
least
two years after the later of (A) the Issue Date with respect to
such
Restricted Debenture and (B) the date such Restricted Debenture
was
acquired from an affiliate of the Issuer and (II) at least
three
months after the
last date such Holder was an affiliate of the Issuer
or (y) the proposed transferee has delivered to the Registrar a
letter
substantially in the form set forth in Exhibit C hereto.
(b) Transfers
Pursuant to Regulation S. If a Holder proposes to transfer a
Restricted Debenture pursuant to Regulation
S, then the Registrar shall register
any such proposed transfer if (x) the
requested transfer is at least two years
after the Issue Date with respect to such
Restricted Debenture and at least
three months after the last date such
Holder was a affiliate of the Issuer or
(y) upon receipt of a letter substantially
in the form of Exhibit D hereto from
the proposed transferor and receipt of a
letter substantially in the form of
Exhibit E hereto from the proposed
transferee.
(c) Restricted
Debentures Legend. Upon the transfer, exchange or
replacement of Debentures bearing the
Restricted Debentures Legend, the
Registrar shall deliver only Debentures
that bear the Restricted Debentures
Legend unless either (i) the circumstances
contemplated by paragraph (a)(i)(x)
of this Section exist or (ii) there is
delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the
Issuer and the Trustee to the effect that
neither such legend nor the related
restrictions on transfer are required in
order to maintain compliance with the
provisions of the Securities Act.
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(d) General. By
its acceptance of any Debenture, each Holder of such a
Debenture acknowledges the restrictions on
transfer of such Debenture set forth
in this Indenture and in the Restricted
Debentures Legend and Restricted
Transfer Legend, and agrees that it shall
transfer such Debenture or a
beneficial interest therein only as
provided in this Indenture.
The Registrar
shall retain copies of all letters, notices and other written
communications received pursuant to this
Section 2.13. The Issuer shall have the
right to inspect and make copies of all
such letters, notices or other written
communications at any reasonable time upon
the giving of reasonable written
notice to the Registrar.
ARTICLE III
REDEMPTION
SECTION 3.01.
Notices to Trustee. If the Issuer elects to redeem Debentures
pursuant to Section 3.07, it shall notify
the Trustee in writing of the
redemption date, the principal amount of
Debentures to be redeemed and the
paragraph of the Debentures pursuant to
which the redemption will occur.
The Issuer shall
give each notice to the Trustee provided for in this
Section at least 60 days before the
redemption date unless the Trustee consents
to a shorter period. Such notice shall be
accompanied by an Officers'
Certificate and an Opinion of Counsel from
the Issuer to the effect that such
redemption will comply with the conditions
herein. If fewer than all the
Debentures are to be redeemed, the record
date relating to such redemption shall
be selected by the Issuer and given to the
Trustee, which record date shall be
not fewer than 15 days after the date of
notice to the Trustee. Any such notice
may be canceled at any time prior to notice
of such redemption being mailed to
any Holder and shall thereby be void and of
no effect.
SECTION 3.02.
Selection. If less than all of the Debentures are to be
redeemed at any time, selection of
Debentures for redemption will be made by the
Trustee in compliance with the requirements
of the principal national exchange,
if any, on which the Debentures are listed,
or, if the Debentures are not so
listed, on a pro rata basis, by lot or by
such method as the Trustee shall deem
fair and appropriate; provided, however,
that if a partial redemption is made
with the proceeds of a public offering of
common stock, selection of the
Debentures or portions thereof for
redemption shall be made by the Trustee on a
pro rata basis only or on as nearly a pro
rata basis as is practicable, unless
such method is otherwise prohibited. If any
Debenture is to be redeemed in part
only, the notice of redemption that relates
to such Debenture shall state the
portion of the principal amount thereof to
be redeemed. On and after
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the redemption date, interest ceases to
accrue on Debentures or portions of them
called for redemption.
SECTION 3.03.
Notice. Notices of redemption shall be mailed by first class
mail at least 30 but not more than 60 days
before the redemption date to each
Holder of Debentures to be redeemed at its
registered address. Notices of
redemption may not be conditional. The
Trustee shall notify the Issuer promptly
of the Debentures or portions of Debentures
to be redeemed.
The notice shall
identify the Debentures to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Debentures called for redemption must be surrendered to
the
Paying Agent to
collect the redemption price;
(5) if fewer than all the outstanding Debentures are to be
redeemed,
the certificate
numbers and principal amounts of the particular Debentures
to be
redeemed;
(6) that, unless the Issuer defaults in making such redemption
payment
or the Paying
Agent is prohibited from making such payment pursuant to the
terms of this
Indenture, interest on Debentures (or portion thereof) called
for redemption
ceases to accrue on and after the redemption date;
(7) the paragraph of the Debentures pursuant to which the
Debentures
called for
redemption are being redeemed;
(8) the CUSIP number, if any, printed on the Debentures being
redeemed;
and
(9) that no representation is made as to the correctness or
accuracy
of the CUSIP
number, if any, listed in such notice or printed on the
Debentures.
At the Issuer's
request (which may be revoked at any time in writing prior
to the time at which the Trustee shall have
given such notice to the Holders),
the Trustee shall give the notice of
redemption in the Issuer's name and at the
Issuer's expense. In such event, the Issuer
shall provide the Trustee with the
information required by this Section.
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SECTION 3.04.
Effect of Notice of Redemption. Once notice of redemption is
mailed, Debentures called for redemption
become due and payable on the
redemption date and at the redemption price
stated in the notice. Upon surrender
to the Paying Agent, such Debentures shall
be paid at the redemption price
stated in the notice, plus accrued interest
to the redemption date; provided
that if the redemption date is after a
regular record date and on or prior to
the interest payment date, the accrued
interest shall be payable to the
Debentureholder of the redeemed Debentures
registered on the relevant record
date. If mailed in the manner herein, the
notice shall be conclusively presumed
to have been given whether or not the
Holder receives such notice. Failure to
give notice or any defect in the notice to
any Holder shall not affect the
validity of the notice to any other
Holder.
SECTION 3.05.
Deposit of Redemption Price. Prior to 10:00 a.m. on the
redemption date, the Issuer shall deposit
with the Paying Agent (or, if the
Issuer or a Wholly Owned Restricted
Subsidiary is the Paying Agent, shall
segregate and hold in trust) money
sufficient to pay the redemption price of and
accrued interest on all Debentures to be
redeemed on the redemption date other
than Debentures or portions of Debentures
called for redemption that have been
delivered by the Issuer to the Trustee for
cancellation.
SECTION 3.06.
Debentures Redeemed in Part. Upon surrender of a Debenture
that is redeemed in part, the Issuer shall
execute and the Trustee shall
authenticate for the Holder (at the
Issuer's expense) a new Debenture equal in
principal amount to the unredeemed portion
of the Debenture surrendered.
SECTION 3.07.
Optional Redemption. The Debentures may not be redeemed prior
to April 1, 2007. Thereafter, the
Debentures will be subject to redemption at
any time at the option of the Issuer, in
whole or in part, at 100% of the
principal amount plus accrued and unpaid
interest to the applicable redemption
date (subject to the right of Holders on
the relevant record date to receive
interest due on the relevant interest
payment date).
SECTION 3.08. No
Sinking Fund. There shall be no sinking fund for the
payment of principal on the Debentures to
the Debentureholders.
ARTICLE IV
COVENANTS
SECTION 4.01.
Payment of Debentures. The Issuer shall promptly pay the
principal of and interest on the Debentures
on the dates and in the manner
provided in the Debentures and in this
Indenture. Principal and interest shall
be considered paid on the date due if on
such date the Trustee or the Paying
Agent (but only if other than the Issuer or
a Wholly Owned Restricted
Subsidiary) holds by 10:00 a.m., New York
City time, in
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accordance with this Indenture available
funds sufficient to pay all principal
and interest then due and the Trustee or
the Paying Agent, as the case may be,
is not prohibited from paying such money to
the Debentureholders on that date
pursuant to the terms of this
Indenture.
The Issuer shall
pay interest on overdue principal at the rate specified
therefor in the Debentures, and it shall
pay interest on overdue installments of
interest at the same rate to the extent
lawful.
SECTION 4.02.
Reports. During any period in which the Issuer is subject to
the reporting requirements of Section 13 or
15(d) of the Exchange Act, to the
extent permitted by the Exchange Act, the
Issuer will file with the SEC, and
provide, within 15 days after the Issuer is
required to file the same with the
SEC, the Trustee and the Debenture holders
with the annual reports and the
information, documents and other reports
that are specified in Sections 13 and
15(d) of the Exchange Act. During any
period in which the Issuer is not required
to file such reports, documents and
information with the SEC, the Issuer will
provide the Trustee and Debenture holders
annual reports containing financial
statements audited by our independent
auditors. To the extent the requirements
of this Section 4.02 conflict with TIA
Section 3.14(a), this Section 4.02 shall
control.
SECTION 4.03.
Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries. The Issuer shall not, and
shall not permit any of its Restricted
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 Restricted Subsidiary to
(i)(a) pay dividends or make any other
distributions to the Issuer or any of its
Restricted Subsidiaries (1) on its
Capital Stock or (2) with respect to any
other interest or participation in, or
measured by, its profits, or (b) pay any
Debt owed to the Issuer or any of its
Restricted Subsidiaries, (ii) make loans or
advances to the Issuer or any of its
Restricted Subsidiaries or (iii) transfer
any of its properties or assets to the
Issuer or any of its Restricted
Subsidiaries, except for such encumbrances or
restrictions existing or by reason of:
(1) under the Senior Debt and any contracts in effect on the
date
hereof,
including the Credit Facilities and other Existing Debt and the
related
documentation, as in effect on the date hereof;
(2) this Indenture, the Debentures, the Debenture Guarantees and
any
other agreement
entered into after the date hereof, provided that the
encumbrances or
restrictions in such agreements are not materially more
restrictive than
those contained in the foregoing agreements;
(3) any agreement or other instrument of a Person acquired by
the
Issuer or any of
its Restricted Subsidiaries as in effect at the time of
such acquisition
(but not
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created in
connection with or in contemplation of such acquisition), which
encumbrance or
restriction is not applicable to any Person, or the
properties or
assets of any Person, other than the Person, or the property
or assets of the
Person, so acquired;
(4) purchase money obligations (including Capital Lease
Obligations)
for property
acquired in the ordinary course of business that impose
restrictions of
the nature described in clause (iii) above on the property
so acquired;
(5) in the case of clause (iii) above, any encumbrance or
restriction
(i) that
restricts in a customary manner the subletting, assignment, or
transfer of any
property or asset that is subject to a lease, license or
similar contract
or (ii) contained in security agreements or mortgages
securing Debt to
the extent such encumbrance or restriction restricts the
transfer of the
property subject to such security agreements or mortgages;
(6) in the case of clause (iii) above, any Lien on property or
assets
of the Issuer or
any Restricted Subsidiary not otherwise prohibited by this
Indenture;
(7) any restriction under an agreement (including an option or
right)
to sell property
or assets of, or Equity Interest in, the Issuer or any
Restricted
Subsidiary pending the closing of such sale, which sale is
permitted under
this Indenture;
(8) restrictions on cash or other deposits or net worth imposed
by
leases or other
agreements entered into in the ordinary course of business;
(9) customary provisions in joint venture agreements and other
similar
agreements
entered into in the ordinary course of business;
(10) any encumbrances or restrictions created with respect to (i)
Debt
or Preferred
Stock of Guarantors and (ii) Preferred Stock of Subsidiaries
that are not
Guarantors, provided that in the case of this clause (ii) the
General Partner
of the Issuer determines (as evidenced by a resolution of
the Board of
Directors of General Partner) in good faith at the time such
encumbrances or
restrictions are created that such encumbrances or
restrictions
would not reasonably be expected to impair the ability of the
Issuer to make
payments of interest and scheduled payments of principal on
the Debentures
in each case as and when due; or
(11) any amendments, modifications, restatements, renewals,
increases,
supplements,
refundings, replacements or refinancings of the contracts,
instruments or
obligations referred to in clauses (1) through (l0) above,
provided that
such amendments, modifications, restatements, renewals,
increases,
supplements, refundings, replacements or refinancings, taken as
a whole, are, in
the good faith
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judgment of the
Issuer, not materially more restrictive with respect to
such
encumbrances or restrictions than those contained in the
contracts,
instruments or
obligations prior to such amendment, modification,
restatement,
renewal, increase, supplement, refunding, replacement or
refinancing.
SECTION 4.04.
Compliance Certificate. The Issuer shall deliver to the
Trustee within 120 days after the end of
each fiscal year of the Issuer an
Officers' Certificate stating that in the
course of the performance by the
signers of their duties as Officers of the
General Partner they would normally
have knowledge of any Default and whether
or not the signers know of any Default
that occurred during such period. If they
do have such knowledge, the
certificate shall describe the Default, its
status and what action the Issuer is
taking or proposes to take with respect
thereto. The Issuer also shall comply
with Section 314(a)(4) of the TIA.
The Issuer shall
deliver to the Trustee, as soon as possible and in any
event within five days after the Issuer
becomes aware of the occurrence of any
Event of Default or an event which, with
notice or the lapse of time or both,
would constitute an Event of Default, an
Officers' Certificate setting forth the
details of such Event of Default or Default
and the action which the Issuer
proposes to take with respect thereto.
SECTION 4.05.
Limitation on Designations of Unrestricted Subsidiaries. The
General Partner of the Issuer may designate
(a "Designation") any Restricted
Subsidiary (including any newly acquired or
newly formed Subsidiary of the
Issuer) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital
Stock of, or owns or holds any Lien on any
property of, the Issuer or any
Restricted Subsidiary, so long as no
Default or Event of Default shall have
occurred and is continuing at the time of
or after giving effect to such
Designation. Notwithstanding the foregoing,
no Subsidiary shall be Designated as
an "Unrestricted Subsidiary" unless such
Subsidiary:
(1) has no Debt other than Non-Recourse Debt;
(2) is not a Guarantor;
(3) is not party to any agreement, contract, arrangement or
understanding
with the Issuer or any Restricted Subsidiary unless the terms
of the
agreement, contract, arrangement or understanding are no less
favorable to the
Issuer or the Restricted Subsidiary than those that might
be obtained at
the time from Persons who are not Affiliates; and
(4) is a Person with respect to which neither the Issuer nor
any
Restricted
Subsidiary has any direct or indirect obligation (a) to
subscribe for
additional Equity
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Interests or (b)
to maintain or preserve the Person's financial condition
or to cause the
Person to achieve any specified levels of operating
results.
The General
Partner of the Issuer may revoke any Designation of a
Subsidiary as an Unrestricted Subsidiary (a
"Revocation"), provided that:
(1) no Default shall have occurred and be continuing at the time of
or
after giving
effect to such Revocation; and
(2) all Liens and Debt of such Unrestricted Subsidiary
outstanding
immediately
after such Revocation would, if incurred at such time, have
been permitted
to be incurred (and shall be deemed to have been incurred)
for all purposes
of this Indenture.
Any such
Designation or Revocation by the General Partner after the date
hereof shall be evidenced to the Trustee by
promptly filing with the Trustee a
copy of the resolution of the Board of
Directors of the General Partner giving
effect to such Designation or Revocation
and an Officers' Certificate certifying
that such Designation or Revocation
complied with the foregoing provisions.
SECTION 4.06.
Liens. The Issuer shall not, and shall not permit any of its
Restricted Subsidiaries to, create, incur,
assume or otherwise cause or suffer
to exist or become effective any Lien of
any kind securing Debt (or with respect
to Collateral, Liens of any kind) upon any
of their property or assets, now
owned or hereafter acquired, other than
Permitted Liens.
SECTION 4.07.
Additional Debenture Guarantees. All current and future
Subsidiaries of the Issuer, other than
Foreign Subsidiaries, and Subsidiaries
that have been properly designated as
Unrestricted Subsidiaries in accordance
with this Indenture for so long as they
continue to constitute Unrestricted
Subsidiaries, will be Guarantors in
accordance with the terms of this Indenture.
SECTION 4.08.
Business Activities. The Issuer shall not, and shall not
permit any Restricted Subsidiary to, engage
in any business other than Permitted
Businesses, except to such extent as is not
material to the Issuer and its
Restricted Subsidiaries taken as a
whole.
SECTION 4.09.
Further Assurances. The Issuer shall, and shall cause each of
the Subsidiary Guarantors to do, execute,
acknowledge, deliver, record,
re-record, file, re-file, register and
re-register, as applicable, any and all
such further acts, deeds, security
agreements, pledge agreements, mortgages,
assignments, estoppel certificates,
financing statements and continuations
thereof, termination statements, and other
instruments as may be required by the
Trustee from time to time in order to:
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(1) carry out more effectively the purposes of the Collateral
Documents;
(2) subject to the Liens created by any of the Collateral
Documents,
any of the
properties, rights or interest required to be encumbered
thereby;
(3) perfect and maintain the validity, effectiveness and priority
of
any of the
Collateral Documents and the Liens intended to be created
thereby; and
(4) better assure, grant, preserve, protect and confirm to the
Trustee
any of the
rights granted now or hereafter intended by the parties thereto
to be granted to
the Trustee under any other instrument executed in
connection
therewith or granted to the Collateral Agent or Trustee, as
applicable under
the Collateral Documents or under any other instrument
executed in
connection therewith.
SECTION 4.10.
Limited Partnership Existence. Except as otherwise permitted
by Article V, the Issuer shall do or cause
to be done all things necessary to
preserve and keep in full force and effect
its existence as a limited
partnership and the corporate, partnership
or other existence of each of its
Restricted Subsidiaries in accordance with
the respective organizational
documents of each such Restricted
Subsidiary and the rights (charter and
statutory) and material franchises of each
of its Restricted Subsidiaries;
provided, however, that the Issuer shall
not be required to preserve any such
right, franchise, limited partnership or
corporate existence with respect to
each such Restricted Subsidiary if the
General Partner of the Issuer shall
determine that the loss thereof would not,
individually or in the aggregate,
have a material adverse effect on the
business, financial condition or results
of operations of the Issuer and its
Restricted Subsidiaries taken as a whole.
ARTICLE V
SUCCESSOR ISSUER
SECTION 5.01.
Merger, Consolidation or Sale of All or Substantially All
Assets of the Issuer. The Issuer shall not
consolidate or merge with or into
(whether or not the Issuer is the surviving
entity), or sell, assign, transfer,
lease, convey or otherwise dispose of all
or substantially all of its properties
or assets in one or more related
transactions, to another Person unless:
(i) the Issuer is the surviving entity or the Person formed by
or
surviving any such consolidation or merger (if other than the
Issuer)
or to which such sale, assignment, transfer, lease, conveyance
or
other disposition shall have been made is a limited partnership
or
other entity organized or existing under the laws of the United
States, any state thereof or the District of Columbia;
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(ii) the Person formed by or surviving any such consolidation
or
merger (if other than the Issuer) or the Person to which such
sale,
assignment, transfer, lease, conveyance or other disposition
shall
have been made assumes all the obligations of the Issuer under
the
Debentures, this Indenture, and the Collateral Documents, pursuant
to
a supplemental indenture and other documents reasonably
satisfactory
to the Trustee; and
(iii) immediately after such transaction no Default exists.
Notwithstanding
clause (iii) above, (a) any Restricted Subsidiary may
consolidate with, merge into or transfer
all or part of its properties and
assets to the Issuer; (b) the Issuer may
merge or consolidate with an Affiliate
organized solely for the purpose of
reorganizing the Issuer in another
jurisdiction; and (c) the Merger may
occur.
For purposes of
the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or
series of related transactions) of all or
substantially all of the properties and
assets of one or more Restricted
Subsidiaries of the Issuer, the Capital
Stock of which constitutes all or
substantially all of the assets and
properties of the Issuer (determined on a
consolidated basis for the Issuer and its
Subsidiaries), shall be deemed to be
the transfer of all or substantially all of
the properties and assets of the
Issuer.
Upon any
consolidation or merger in which the Issuer is not the
continuing
entity, or any transfer of all or
substantially all of the assets of the Issuer
in each case in accordance with the
foregoing, the surviving entity or the
Person formed by or surviving any such
consolidation or merger shall succeed to,
and be substituted for, and may exercise
every right and power of, the Issuer
under the Debentures, this Indenture, and
the Collateral Documents, with the
same effect as if such surviving entity or
the Person formed by or surviving any
such merger or consolidation had been named
as such.
With respect to
each transaction described above, the Issuer or the
relevant surviving entity, as applicable,
will cause such amendments or other
instruments to be filed and recorded in
such jurisdictions as may be required by
applicable law to preserve and protect the
Lien of the Collateral Documents on
the Collateral owned by or transferred to
such Person, together with such
financing statements as may be required to
perfect any security interests in
such Collateral which may be perfected by
the filing of a financing statement
under the Uniform Commercial Code of the
relevant states.
SECTION 5.02.
Merger, Consolidation or Sale of All or Substantially All
Assets of a Guarantor. No Guarantor may
consolidate with or merge with or into
(whether or not such Guarantor is the
surviving Person) another Person (other
than the Issuer or another Guarantor)
unless:
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(i) subject to the provisions of the following paragraph, the
Person formed by or surviving any such consolidation or merger
(if
other than such Guarantor) is organized under the laws of any State
of
the United States of America or the District of Columbia and
assumes
all the obligations of such Guarantor under the Debenture Guarantee
of
such Guarantor, this Indenture and the Collateral Documents
applicable
to such Guarantor pursuant to a supplemental indenture
reasonably
satisfactory to the Trustee; and
(ii) immediately after giving effect to such transaction, no
Default exists.
Notwithstanding
the foregoing clause (ii) above, (a) any Restricted
Subsidiary may consolidate with, merge into
or transfer all or part of its
properties and assets to any Guarantor, (b)
any Guarantor may merge with an
Affiliate organized solely for the purpose
of reorganizing such Guarantor in
another jurisdiction and (c) the Merger may
occur.
Upon any
consolidation or merger in which a Guarantor is not the
continuing
entity in accordance with the foregoing,
the surviving entity or the Person
formed by or surviving any such
consolidation or merger (if other than such
Guarantor) shall succeed to, and be
substituted for, and may exercise every
right and power of, such Guarantor under
its Debenture Guarantee, this
Indenture, and the Collateral Documents
applicable to such Guarantor with the
same effect as if such surviving limited
partnership or the Person formed by or
surviving any such consolidation or merger
(if other than such Guarantor) had
been named as such.
WITH RESPECT TO EACH TRANSACTION DESCRIBED
IN THE ABOVE PARAGRAPHS, ISSUER, SUCH
GUARANTOR OR THE RELEVANT SURVIVING ENTITY,
AS APPLICABLE, WILL CAUSE SUCH
AMENDMENTS OR OTHER INSTRUMENTS TO BE FILED
AND RECORDED IN SUCH JURISDICTIONS
AS MAY BE REQUIRED BY APPLICABLE LAW TO
PRESERVE AND PROTECT THE LIEN OF THE
COLLATERAL DOCUMENTS ON THE COLLATERAL
OWNED BY OR TRANSFERRED TO SUCH PERSON,
TOGETHER WITH SUCH FINANCING STATEMENTS AS
MAY BE REQUIRED TO PERFECT ANY
SECURITY INTERESTS IN SUCH COLLATERAL WHICH
MAY BE PERFECTED BY THE FILING OF A
FINANCING STATEMENT UNDER THE UNIFORM
COMMERCIAL CODE OF THE RELEVANT STATES.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01.
Events of Default and Remedies. (a) An "Event of Default"
occurs if:
(1) default for 30 days in the payment when due of interest on
the
Debentures;
(2) default in payment when due of the principal of or premium,
if
any, on the
Debentures (including the failure to make a payment to purchase
Debentures
tendered pursuant to a redemption notice);
(3) failure by the Issuer for 30 days after receipt of notice from
the
Trustee or the
holders of at least 25% in principal amount of the then
outstanding
Debentures to comply with the provisions of 5.01 or 5.02;
(4) failure by the Issuer for 60 days after receipt of notice from
the
Trustee or the
holders of at least 25% in aggregate principal amount of the
then outstanding
Debentures specifying such failure to comply with any of
its other
agreements in this Indenture or the Debentures;
(5) the failure by the Issuer or any Restricted Subsidiary that is
a
Significant
Subsidiary to pay any Debt within any applicable grace period
after final
maturity or acceleration by the holders thereof because of a
default if the
total amount of all such Debt unpaid or accelerated at the
time exceeds $2
million;
(6) any judgment or decree for the payment of money in excess of
$10
million (net of
any insurance or indemnity payments actually received in
respect thereof
prior to or within 90 days from the entry thereof, or to be
received in
respect thereof in the event any appeal thereof shall be
unsuccessful) is
entered against the Issuer or any Significant Subsidiary
that is a
Restricted Subsidiary and is not discharged, waived or stayed
and
either (A) an
enforcement proceeding has been commenced by any creditor
upon such
judgment or decree or (B) there is a period of 90 days
following
the entry of
such judgment or decree during which such judgment or decree
is not
discharged, waived or the execution thereof stayed;
(7) any Debenture Guarantee shall be held in any judicial
proceeding
to be
unenforceable or invalid or, except as permitted by this
Indenture,
shall cease for
any reason to be in full force and effect or any Guarantor,
or any Person
acting on behalf
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of any
Guarantor, shall deny or disaffirm its obligations under its
Debenture
Guarantee;
(8) default by the Issuer or any Subsidiary Guarantor in the
performance of
the Collateral Documents which results in the
unenforceablity,
invalidity, imperfection or lack of requisite priority of
the Trustee's or the
Collateral Agent's Lien on Collateral with a fair
market value in
excess of $10 million, or the repudiation or disaffirmation
by the Issuer
o
