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EXHIBIT 4
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CBRL GROUP, INC.
AND
THE GUARANTORS NAMED HEREIN
TO
BANKERS TRUST COMPANY, as Trustee
INDENTURE
Dated as of ____________, 1999
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CROSS REFERENCE SHEET*
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Certain Sections of this Indenture relating to Sections 310 through
318(a), inclusive, of the Trust Indenture Act of 1939, as amended:
Section of Trust Indenture Act of 1939 Section of Indenture
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310(a)(1) and (2)...............................................................................6.10
310(a)(3) and (4)...............................................................................Inapplicable
310(a)(5) ......................................................................................6.10
310(b)..........................................................................................6.10
310(c)..........................................................................................Inapplicable
311(a)..........................................................................................6.11
311(b)..........................................................................................6.11
311(c)..........................................................................................Inapplicable
312(a)..........................................................................................4.1
312(b)..........................................................................................4.2(b)
312(c)..........................................................................................4.2(c)
313(a)..........................................................................................6.6
313(b)..........................................................................................6.6
313(c)..........................................................................................6.6
313(d)..........................................................................................6.6
314(a)..........................................................................................4.3
314(b)..........................................................................................Inapplicable
314(c)(1) and (2)...............................................................................2.4 and 11.5
314(c)(3).......................................................................................Inapplicable
314(d)..........................................................................................Inapplicable
314(e)..........................................................................................11.5
314(f)..........................................................................................11.5
315(a)..........................................................................................6.1(b)
315(b)..........................................................................................6.5
315(c)..........................................................................................6.1(a)
315(d)(1).......................................................................................6.1(b)(1) and (2)
315(d)(2).......................................................................................6.1(c)(2)
315(d)(3).......................................................................................6.1(c)(3)
315(e)..........................................................................................5.11
316(a)(1)(A)....................................................................................5.9
316(a)(1)(B)....................................................................................5.10
316(a)(2).......................................................................................Inapplicable
316(b)..........................................................................................5.7
316(c)..........................................................................................2.7
317(a)(1) and (2)...............................................................................5.2
317(b)..........................................................................................3.2 and 3.3
318(a)..........................................................................................11.7
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* This cross reference sheet shall not, for any purpose, be deemed to
be a part of this Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act of 1939, as amended, which provides that the provisions of
Sections 310 through 317 of such Act are a part of and govern every qualified
indenture, whether or not physically contained therein.
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TABLE OF CONTENTS
Page
PARTIES...........................................................................................................1
RECITALS..........................................................................................................1
ARTICLE I DEFINITIONS............................................................................1
Section 1.1 Certain Terms Defined..................................................................1
"Affiliate"............................................................................2
"Attributable Debt"....................................................................2
"Authorized Newspaper".................................................................2
"Board of Directors"...................................................................2
"Board Resolution".....................................................................2
"Business Day".........................................................................2
"Commission"...........................................................................2
"Composite Rate".......................................................................2
"Consolidated Funded Indebtedness".....................................................3
"Consolidated Net Tangible Assets".....................................................3
"Consolidated Subsidiaries"............................................................3
"Corporate Trust Office"...............................................................3
"Coupon"...............................................................................3
"Depositary"...........................................................................3
"Event of Default".....................................................................3
"Funded Indebtedness"..................................................................3
"GAAP".................................................................................3
"Guarantee"............................................................................4
"Guarantor"............................................................................4
"Holder", "Holder of Securities", "Securityholder".....................................4
"Indebtedness".........................................................................4
"Indenture"............................................................................4
"Indenture Obligations" ...............................................................4
"Interest".............................................................................4
"Issuer"...............................................................................4
"Issuer Order".........................................................................5
"Lien".................................................................................5
"Net Tangible Assets"..................................................................5
"Officers' Certificate"................................................................5
"Opinion of Counsel"...................................................................5
"original issue date"..................................................................5
"Original Issue Discount Security".....................................................5
"Outstanding"..........................................................................6
"Person"...............................................................................6
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"principal"............................................................................6
"Principal Property"...................................................................6
"Registered Global Security"...........................................................7
"Registered Security"..................................................................7
"Responsible Officer",.................................................................7
"Security" or "Securities".............................................................7
"Subsidiary"...........................................................................7
"Trust Indenture Act of 1939"..........................................................7
"Trustee"..............................................................................7
"Unregistered Security"................................................................7
"U.S. Government Obligations"..........................................................7
"vice president",......................................................................7
"Yield to Maturity"....................................................................8
ARTICLE II SECURITIES.............................................................................8
Section 2.1 Forms Generally........................................................................8
Section 2.2 Form of Trustee's Certificate of Authentication........................................8
Section 2.3 Amount Unlimited; Issuable in Series...................................................8
Section 2.4 Authentication and Delivery of Securities.............................................11
Section 2.5 Execution of Securities...............................................................13
Section 2.6 Certificate of Authentication.........................................................14
Section 2.7 Denomination and Date of Securities; Payments of Interest.............................14
Section 2.8 Registration, Transfer and Exchange...................................................15
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.............................19
Section 2.10 Cancellation of Securities; Destruction Thereof.......................................20
Section 2.11 Temporary Securities..................................................................20
ARTICLE III COVENANTS.............................................................................21
Section 3.1 Payment of Principal and Interest.....................................................21
Section 3.2 Offices for Payments, etc.............................................................22
Section 3.3 Paying Agents.........................................................................22
Section 3.4 Written Statement to Trustee..........................................................23
Section 3.5 Limitation on Liens...................................................................24
Section 3.6 Limitation on Sale and Lease-Back.....................................................26
Section 3.7 Guarantees............................................................................26
Section 3.8 Additional Guarantors.................................................................26
Section 3.9 Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries..........26
ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER, THE GUARANTORS AND THE TRUSTEE................................................26
Section 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders.................................................26
Section 4.2 Preservation and Disclosure of Securityholders Lists..................................27
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Section 4.3 Reports by the Issuer and each Guarantor..............................................28
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT...................................................................29
Section 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default............................................................29
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.........................32
Section 5.3 Application of Proceeds...............................................................34
Section 5.4 Suits for Enforcement.................................................................35
Section 5.5 Restoration of Rights on Abandonment of Proceedings...................................35
Section 5.6 Limitations on Suits by Securityholders...............................................36
Section 5.7 Unconditional Right of Securityholders to Institute Certain Suits.....................36
Section 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default........................................................36
Section 5.9 Control by Holders of Securities......................................................37
Section 5.10 Waiver of Past Defaults...............................................................37
Section 5.11 Right of Court to Require Filing of Undertaking to Pay Costs..........................38
ARTICLE VI CONCERNING THE TRUSTEE................................................................38
Section 6.1 Duties of Trustee.....................................................................38
Section 6.2 Rights of Trustee.....................................................................40
Section 6.3 Individual Rights of Trustee..........................................................41
Section 6.4 Trustee's Disclaimer..................................................................41
Section 6.5 Notice of Defaults....................................................................41
Section 6.6 Reports by Trustee to Holders.........................................................42
Section 6.7 Compensation and Indemnity............................................................42
Section 6.8 Replacement of Trustee................................................................43
Section 6.9 Successor Trustee by Merger...........................................................44
Section 6.10 Eligibility; Disqualification.........................................................44
Section 6.11 Preferential Collection of Claims Against Issuer......................................44
ARTICLE VII CONCERNING THE SECURITYHOLDERS........................................................44
Section 7.1 Evidence of Action Taken by Securityholders...........................................44
Section 7.2 Proof of Execution of Instruments and of Holding of Securities........................44
Section 7.3 Holders to Be Treated as Owners.......................................................45
Section 7.4 Securities Owned by Issuer or any Guarantor Deemed
Not Outstanding..............................................................46
Section 7.5 Right of Revocation of Action Taken...................................................46
ARTICLE VIII SUPPLEMENTAL INDENTURES...............................................................47
Section 8.1 Supplemental Indentures Without Consent of Securityholders............................47
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Section 8.2 Supplemental Indentures With Consent of Securityholders...............................48
Section 8.3 Effect of Supplemental Indenture......................................................50
Section 8.4 Documents to Be Given to Trustee......................................................50
Section 8.5 Notation on Securities in Respect of Supplemental Indentures..........................50
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE.............................................50
Section 9.1 Issuer May Consolidate, etc., on Certain Terms........................................50
Section 9.2 Successor Issuer Substituted..........................................................51
Section 9.3 Opinion of Counsel Delivered to Trustee...............................................51
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS......................................................................52
Section 10.1 Satisfaction and Discharge of Indenture...............................................52
Section 10.2 Application by Trustee of Funds Deposited for Payment of Securities...................54
Section 10.3 Repayment of Moneys Held by Paying Agent..............................................54
Section 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years......................................................55
Section 10.5 Indemnity for U.S. Government Obligations.............................................55
ARTICLE XI MISCELLANEOUS PROVISIONS..............................................................55
Section 11.1 Incorporators, Stockholders, Officers and Directors of Issuer or
any Guarantor Exempt from Individual Liability...............................55
Section 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons........................................56
Section 11.3 Successors and Assigns of Issuer and Guarantors
Bound by Indenture...........................................................56
Section 11.4 Notices and Demands on Issuer, Guarantors, Trustee and
Holders of Securities and Coupons............................................56
Section 11.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein.........................................................57
Section 11.6 Payments Due on Saturdays, Sundays and Holidays.......................................58
Section 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939........................................................58
Section 11.8 New York Law to Govern................................................................58
Section 11.9 Counterparts..........................................................................58
Section 11.10 Effect of Headings....................................................................58
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS............................................59
Section 12.1 Applicability of Article..............................................................59
Section 12.2 Election to Redeem; Notice of Redemption; Partial Redemptions.........................59
Section 12.3 Payment of Securities Called for Redemption...........................................60
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Section 12.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption...............................................................61
Section 12.5 Mandatory and Optional Sinking Funds.................................................61
ARTICLE XIII GUARANTEES............................................................................64
Section 13.1 Unconditional Guarantee...............................................................64
Section 13.2 Execution and Delivery of Guarantee...................................................65
Section 13.3 Additional Guarantors.................................................................65
Section 13.4 Release of a Guarantor................................................................65
Section 13.5 Waiver of Subrogation.................................................................66
Section 13.6 Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc. of Guarantors..............................66
Section 13.7 Article XIII Applicable to Paying Agents..............................................67
Section 13.8 No Suspension of Remedies.............................................................67
Section 13.9 Limitation of Guarantor's Liability...................................................67
Section 13.10 Contribution from Other Guarantors....................................................67
Section 13.11 Obligations Reinstated................................................................67
Section 13.12 No Obligation To Take Action Against the Issuer.......................................68
Section 13.13 Dealing with the Issuer and Others....................................................68
Section 13.14 Guarantee Forms.......................................................................68
EXHIBIT A - LIST OF GUARANTORS
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THIS INDENTURE, dated as of ________________, 1999, is made
and entered into by and between CBRL GROUP, INC., a Tennessee corporation (the
"Issuer"), the guarantors named herein (herein collectively called the
"Guarantors") and BANKERS TRUST COMPANY, as Trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer and each Guarantor has duly authorized the
issue from time to time of the Issuer's unsecured debentures, notes or other
evidences of indebtedness to be issued in one or more series (the "Securities")
up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture;
WHEREAS, each Guarantor has duly authorized its Guarantee (as
defined herein) of the Securities under the terms set forth herein;
WHEREAS, the Issuer and each Guarantor has duly authorized the
execution and delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company and the Guarantors, and to make the Guarantees the
valid agreements of each of the Guarantors, in accordance with their respective
terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer, each Guarantor and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective holders from time to time of the Securities and of the Coupons, if
any, appertaining thereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Terms Defined.
The following terms (except as otherwise expressly provided or
unless the context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939 or the definitions of which in
the Securities Act of 1933, as amended, are referred to in the Trust Indenture
Act of 1939, including terms defined therein by reference to the Securities Act
of 1933, as amended (except as herein otherwise expressly provided or unless the
context otherwise clearly requires), shall have the meanings assigned to such
terms in said force at the date of this Indenture. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Indenture as a
whole and
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not to any particular Article, Section or other subdivision. The terms defined
in this Article have the meanings assigned to them in this Article and include
the plural as well as the singular.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" shall have the meaning set forth in
Section 3.5.
"Authorized Newspaper" means a newspaper (which will be, if
practicable, The Wall Street Journal (eastern edition)) published at least once
a day for at least five days in each calendar week and of general circulation in
The City of New York. If it shall be impractical in the opinion of the Trustee
to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board of Directors" means either the Board of Directors of
the Issuer or a Guarantor, as the case may be, or any committee of such Board
duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer or a
Guarantor, as the case may be, to have been duly adopted, or consented to, by
the Board of Directors and to be in full force and effect and delivered to the
Trustee.
"Business Day" means, with respect to any Security, a day that
in the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or if at any time after the execution and delivery of this
Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act of 1939, then the body performing such
duties on such date.
"Composite Rate" means, at any time, the rate of interest, per
annum, compounded semiannually, equal to the sum of the rates of interest borne
by the Securities of each series (as specified on the face of the Securities of
each series; provided that, in the case of the Securities with variable rates of
interest, the interest rate to be used in calculating the Composite Rate shall
be the interest rate applicable to such Securities at the beginning of the year
in which the Composite Rate is being determined and; provided, further, that, in
the case of
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Securities which do not bear interest, the interest rate to be used in
calculating the Composite Rate shall be a rate equal to the yield to maturity on
such Securities, calculated at the time of issuance of such Securities)
multiplied, in the case of each series of Securities, by the percentage of the
aggregate principal amount of the Securities of all series Outstanding
represented by the Outstanding Securities of such series.
"Consolidated Funded Indebtedness" means the Funded
Indebtedness of the Issuer and its Consolidated Subsidiaries consolidated in
accordance with GAAP and as provided in the definition of Funded Indebtedness.
"Consolidated Net Tangible Assets" means the Net Tangible
Assets of the Issuer and its Consolidated Subsidiaries consolidated in
accordance with GAAP and as provided in the definition of Net Tangible Assets.
In determining Consolidated Net Tangible Assets, minority interests in
unconsolidated subsidiaries shall be included.
"Consolidated Subsidiaries" means subsidiaries the accounts of
which are consolidated with those of the Issuer in the preparation in accordance
with GAAP of its consolidated financial statements.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located in The City of New York.
"Coupon" means any interest coupon appertaining to a Security.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Issuer pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series.
"Event of Default" means any event or condition specified as
such in Section 5.1.
"Funded Indebtedness", as used in reference to any
corporation, means all Indebtedness of such corporation which would, in
accordance with GAAP, be classified as funded indebtedness, but in any event
including all Indebtedness, whether secured or unsecured, of such corporation
having a final maturity (or renewable or extendable at the option of such
corporation for a period ending) more than one year after the date as of which
Funded Indebtedness is to be determined.
"GAAP" means generally accepted accounting principles in
effect in the United States that are applicable as of the date hereof and that
are consistently applied for all applicable periods.
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"Guarantee" means the guarantee of a Guarantor as set forth in
Article XIII or as evidenced by a supplemental indenture.
"Guarantor" means (a) each Subsidiary identified on Exhibit A
and (b) each of the Issuer's Subsidiaries that in the future executes a
supplemental indenture pursuant to which such Subsidiary agrees to be bound by
the terms of this Indenture pursuant to Article XIII or otherwise.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the case
of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" means any and all obligations of a corporation
for money borrowed which in accordance with GAAP would be reflected on the
balance sheet of such corporation as a liability on the date as of which
Indebtedness is to be determined. For the purpose of computing the amount of any
Funded or other Indebtedness of any corporation, there shall be excluded all
Indebtedness of such corporation for the payment or redemption or satisfaction
of which money or securities (or evidences of such Indebtedness, if permitted
under the terms of the instrument creating such Indebtedness) in the necessary
amount shall have been deposited in trust with the proper depositary, whether
upon or prior to the maturity or the date fixed for redemption of such
Indebtedness; and, in any instance where Indebtedness is so excluded, for the
purpose of computing the assets of such corporation there shall be excluded the
money, securities or evidences of Indebtedness deposited by such corporation in
trust for the purpose of paying or satisfying such Indebtedness.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as provided herein, as so amended or
supplemented or both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"Indenture Obligations" means the obligations of the Issuer
and any other obligor under this Indenture or under the Securities, to pay
principal of, premium, if any, and interest on the Securities when due and
payable, whether at maturity, by acceleration, call for redemption or repurchase
or otherwise, and all other amounts due or to become due under or in connection
with this Indenture, the Securities or the Guarantees and the performance of all
other obligations to the Trustee (including, but not limited to, payment of all
amounts due the Trustee under Section 6.7 hereof) and the Holders of the
Securities under this Indenture, the Securities and the Guarantees, according to
the terms thereof.
"Interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article VI)
CBRL Group, Inc. and, subject to Article IX, its successors and assigns.
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"Issuer Order" means a written statement, request or order of
the Issuer signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer.
"Lien" has the meaning set forth in Section 3.5.
"Net Tangible Assets", as used in reference to the assets of
any corporation, means the total amount of assets of such corporation, both real
and personal (exclusive of licenses, patents, patent applications, copyrights,
trademarks, trade names, good will, experimental or organizational expense and
other like intangibles, treasury stock and unamortized discount and expense)
less the sum of:
(1) all reserves for depletion, depreciation,
obsolescence and/or amortization of its properties (other than
those excluded as provided above) as shown by the books of
such corporation (other than general contingency reserves,
reserves representing mere appropriations of surplus and
reserves to the extent related to intangible assets which have
been excluded in calculating Net Tangible Assets as provided
above); and
(2) all Indebtedness and other current liabilities of
such corporation other than (a) Funded Indebtedness, (b)
deferred income taxes, (c) reserves which have been deducted
pursuant to the preceding clause (1), (d) general contingency
reserves and reserves representing mere appropriations of
surplus and (e) liabilities to the extent related to
intangible assets which have been excluded in calculating Net
Tangible Assets as provided above.
"Officers' Certificate" means a certificate signed by the
chairman of the Board of Directors or the president or any vice president and by
the treasurer or the secretary or any assistant secretary of the Issuer or a
Guarantor, as the case may be, and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by the
general corporate counsel of the Issuer or a Guarantor or such other legal
counsel who may be an employee of or counsel to the Issuer or a Guarantor. Each
such opinion shall include the statements provided for in Section 11.5.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
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"Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment
or redemption of which moneys or U.S. Government Obligations
(as provided for in Section 10.1) in the necessary amount
shall have been deposited in trust with the Trustee or with
any paying agent (other than the Issuer or any Guarantor) or
shall have been set aside, segregated and held in trust by the
Issuer or any Guarantor for the Holders of such Securities (if
the Issuer or such Guarantor shall act as its own paying
agent); provided that if such Securities, or portions thereof,
are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as provided herein, or
provision satisfactory to the Trustee shall have been made for
giving such notice; and
(c) Securities in substitution for which other
Securities shall have been authenticated and delivered, or
which shall have been paid, pursuant to the terms of Section
2.9 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such
Security is held by a person in whose hands such Security is a
legal, valid and binding obligation of the Issuer and each
Guarantor).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal", whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Principal Property" has the meaning set forth in Section 3.5.
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"Registered Global Security" means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.4, and bearing the legend prescribed in
Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Responsible Officer", when used with respect to the Trustee,
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president, the cashier, the secretary, the treasurer, any trust officer, any
assistant trust officer, any assistant vice president, any assistant cashier,
any assistant secretary, any assistant treasurer, or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Subsidiary" means any corporation or other business entity a
majority of the outstanding voting stock or membership or other interest, as the
case may be, of which is owned, directly or indirectly, by the Issuer, or by one
or more subsidiaries of the Issuer, or by the Issuer and one or more
subsidiaries of the Issuer.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, the
"Trust Indenture Act of 1939" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article VI, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set forth
in Section 10.1(A).
"vice president", when used with respect to the Issuer, a
Guarantor or the Trustee, means any vice president, whether or not designated by
a number or a word or words added before or after the title of "vice president".
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"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
Section 2.1 Forms Generally.
The Securities of each series and the Coupons, if any, to be
attached thereto shall be substantially in such form (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more Board
Resolutions (as set forth in a Board Resolution or, to the extent established
pursuant to rather than set forth in a Board Resolution, an Officers'
Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such Securities
and Coupons as evidenced by their execution of such Securities and Coupons.
Section 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
-------------------------,
as Trustee
By ,
---------------------
Authorized Officer
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Section 2.3 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and the
Securities of each series shall rank equally and pari passu with all other
unsecured and unsubordinated debt of the Issuer. There shall be established in
or pursuant to one or more Board Resolutions or, to the extent established
pursuant to (rather than set forth in) a Board Resolution, in an Officers'
Certificate detailing such establishment and/or established in one or more
indentures supplemental hereto:
(1) the designation of the Securities of the series
(which may be part of a series of Securities previously
issued);
(2) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from
which such interest shall accrue, on which such interest shall
be payable and (in the case of Registered Securities) on which
a record shall be taken for the determination of Holders to
whom interest is payable and/or the method by which such rate
or rates or date or dates shall be determined;
(5) the place or places where the principal of and
any interest on Securities of the series shall be payable (if
other than as provided in Section 3.2);
(6) the right, if any, of the Issuer to redeem
Securities, in whole or in part, at its option and the period
or periods within which, the price or prices at which, and any
terms and conditions upon which, Securities of the series may
be redeemed, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series pursuant to any
mandatory redemption, sinking fund or analogous provisions or
at the option of
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a Holder thereof and the price or prices at which and the
period or periods within which and any terms and conditions
upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such
obligation or the right of the Issuer to remarket Securities
of the series that have been redeemed, purchased or repaid;
(8) if other than denominations of $1,000 and any
integral multiple thereof in the case of Registered
Securities, or $1,000 and $5,000 in the case of Unregistered
Securities, the denominations in which Securities of the
series shall be issuable;
(9) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
which shall be payable upon declaration of acceleration of the
maturity thereof;
(10) if the amount of payments of principal of and
interest on the Securities of the series may be determined
with reference to an index, formula or method, the manner in
which such amounts shall be determined;
(11) whether the Securities of the series will be
issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities)
or Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions applicable to
the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided in
Section 2.8, the terms upon which Unregistered Securities of
any series may be exchanged for Registered Securities of such
series and vice versa;
(12) whether, under what circumstances and in what
amounts the Issuer will pay additional amounts on the
Securities of the series held by a Person who is not a U.S.
Person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Issuer
will have the option to redeem such Securities rather than pay
such additional amounts;
(13) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and terms of
such certificates, documents or conditions;
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(14) whether warrants shall be attached to such
Securities and the terms of any such warrants;
(15) whether such Securities are exchangeable or
convertible into new Securities of a different series and/or
shares of stock of the Issuer and/or other securities and the
terms of such exchange or conversion and the terms, rights and
preferences of such Securities or stock;
(16) any trustees, depositaries, authenticating or
paying agents, transfer agents or registrars or any other
agents with respect to the Securities of such series;
(17) any Guarantee with the respect to the Securities
of such series;
(18) any other events of default or covenants with
respect to the Securities of such series; and
(19) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be provided
by or pursuant to the Board Resolution or Officers' Certificate referred to
above or as set forth in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officers' Certificate or in any such
indenture supplemental hereto and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the foregoing terms are not available at the time
such Board Resolutions are adopted, or such Officers' Certificate or any
supplemental indenture is executed, such Board Resolutions, Officers'
Certificate or supplemental indenture may reference the document or documents to
be created in which such terms will be set forth prior to the issuance of such
Securities.
Section 2.4 Authentication and Delivery of Securities.
The Issuer may deliver Securities of any series having
attached thereto appropriate Coupons, if any, executed by the Issuer to the
Trustee for authentication together with the applicable documents referred to
below in this Section, and the Trustee shall thereupon authenticate and deliver
such Securities to or upon the order of the Issuer (contained in the Issuer
Order referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from time
to time by an Issuer Order. The maturity date, original issue date,
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interest rate and any other terms of the Securities of such series and Coupons,
if any, appertaining thereto shall be determined by or pursuant to such Issuer
Order and procedures. If provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive and (subject to Section 6.1) shall be
fully protected in relying upon:
(1) an Issuer Order requesting such
authentication and setting forth delivery instructions if the
Securities and Coupons, if any, are not to be delivered to the
Issuer;
(2) any Board Resolution, Officers' Certificate
and/or executed supplemental indenture referred to in Sections
2.1 and 2.3 by or pursuant to which the forms and terms of the
Securities and Coupons, if any, were established;
(3) an Officers' Certificate setting forth the
form or forms and terms of the Securities and Coupons, if any,
stating that the form or forms and terms of the Securities and
Coupons, if any, have been established pursuant to Sections
2.1 and 2.3 and comply with this Indenture, and covering such
other matters as the Trustee may reasonably request; and
(4) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such
Securities and Coupons, if any, have been duly
authorized and established in conformity with the
provisions of this Indenture;
(b) the authentication and delivery of such
Securities and Coupons, if any, by the Trustee are
authorized under the provisions of this Indenture;
(c) such Securities and Coupons, if any,
when authenticated and delivered by the Trustee and
issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the
Issuer; and
(d) all laws and requirements in respect of
the execution and delivery by the Issuer of the
Securities and Coupons, if any, have been complied
with,
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and covering such other matters as the Trustee may reasonably request.
Notwithstanding the provisions of Section 2.3 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution
and/or Officers' Certificate otherwise required pursuant to Section 2.3 or the
Issuer Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the time of
authentication upon original issuance of the first Security of such series to be
issued. After the original issuance of the first Security of such series to be
issued, any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Issuer that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series issued and not yet canceled, (ii)
shall be registered in the name of the Depositary for such Registered Global
Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary".
Each Depositary designated pursuant to Section 2.3 must, at
the time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
Section 2.5 Execution of Securities.
The Securities and, if applicable, each Coupon appertaining
thereto and each Guarantee shall be signed on behalf of the Issuer and each
Guarantor, as the case may be, by the
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chairman of its Board of Directors or any vice chairman of its Board of
Directors or its president or any vice president or its treasurer, under its
corporate seal (except in the case of Coupons) which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; in case any officer of any
Guarantor who shall have signed a Guarantee shall cease to be such officer
before the Guarantee so signed shall be delivered by the Trustee or disposed of
by such Guarantor, such Guarantee nevertheless may be delivered or disposed of
as though the person who signed such Guarantee had not ceased to be such officer
of such Guarantor; and any Security, Coupon or Guarantee may be signed on behalf
of the Issuer or any Guarantor, as the case may be, by such persons as, at the
actual date of the execution of such Security, Coupon or Guarantee, shall be the
proper officers of the Issuer or such Guarantor, although at the date of the
execution and delivery of this Indenture any such person was not such an
officer.
Section 2.6 Certificate of Authentication.
Only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized officers, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. No Coupon shall be entitled to the benefits of this Indenture or shall
be valid and obligatory for any purpose until the certificate of authentication
on the Security to which such Coupon appertains shall have been duly executed by
the Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
Section 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of any
series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series are
not so established, such Securities shall be issuable in denominations of $1,000
and $5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
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Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in the
resolution or resolutions of the Board of Directors of the Issuer referred to in
Section 2.3. Each Guarantee shall be dated as of the date of the Security to
which it applies. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the dates, established as
contemplated by Section 2.3.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer and the Guarantors shall default in the
payment of the interest due on such interest payment date for such series, in
which case such defaulted interest shall be paid to the persons in whose names
Outstanding Registered Securities for such series are registered at the close of
business on a subsequent record date (which shall be not less than five Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Issuer and the Guarantors to the
Holders of Registered Securities not less than 15 days preceding such subsequent
record date. The term "record date" as used with respect to any interest payment
date (except a date for payment of defaulted interest) for the Securities of any
series shall mean the date specified as such in the terms of the Registered
Securities of such series established as contemplated by Section 2.3, or, if no
such date is so established, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
Section 2.8 Registration, Transfer and Exchange.
The Issuer will keep at each office or agency to be maintained
for the purpose as provided in Section 3.2 for each series of Securities a
register or registers in which, subject to such reasonable regulations as it may
prescribe, it will provide for the registration of Securities of such series and
the registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by the
Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount, and the Guarantors shall
execute and the Trustee shall deliver to the transferee or transferees a
replacement Guarantee or Guarantees.
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Unregistered Securities (except for any temporary Unregistered
Securities) and Coupons (except for Coupons attached to any temporary
Unregistered Global Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.2 and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.3, at the
option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall
be maintained for such purpose in accordance with Section 3.2, with, in the case
of Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. At the option of
the Holder thereof, if Unregistered Securities of any series, maturity date,
interest rate and original issue date are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Unregistered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.2 or as specified pursuant to Section 2.3, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Issuer shall
so require, of the charges hereinafter provided. Unless otherwise specified
pursuant to Section 2.3, Registered Securities of any series may not be
exchanged for Unregistered Securities of such series. Whenever any Securities
and Guarantees are so surrendered for exchange, the Issuer shall execute, and
the Trustee shall authenticate and deliver, the Securities, and the Guarantors
shall execute, and the Trustee shall deliver, the Guarantees which the Holder
making the exchange is entitled to receive. All Securities and Coupons
surrendered upon any exchange or transfer provided for in this Indenture shall
be promptly canceled and disposed of by the Trustee and the Trustee will deliver
a certificate of disposition thereof to the Issuer. All Guarantees surrendered
upon any exchange or transfer provided for in this Indenture shall be promptly
canceled and disposed of by the Trustee, and the Trustee will deliver a
certificate of disposition thereof to the Guarantors.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Issuer or
the Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by the Holder or his attorney duly authorized in writing.
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The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such series
to be redeemed or (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Global Security representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of
a series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary with respect to such Registered Securities. If a
successor Depositary for such Registered Securities is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of
such ineligibility, the Issuer's election pursuant to Section 2.3 that such
Registered Securities be represented by one or more Registered Global Securities
shall no longer be effective and the Issuer will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities, in exchange for such Registered Global Security or Securities, and
the Guarantors shall execute, and the Trustee shall deliver, Guarantees of such
Registered Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of one
or more Registered Global Securities shall no longer be represented by a
Registered Global Security or Securities. In such event, the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without Coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Registered Global Security or
Securities representing such Registered Securities, in exchange for such
Registered Global Security or Securities, and the Guarantors shall execute, and
the Trustee shall deliver, Guarantees of such Registered Securities.
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If an Event of Default occurs and is continuing with respect
to Registered Securities of any series issued in the form of one or more
Registered Global Securities, upon written notice from the Depository, the
Issuer will execute, and the Trustee, upon receipt of an Officers' Certificate
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive
registered forms without Coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities, representing such Registered Securities, in
exchange for such Registered Global Security or Securities, and the Guarantors
shall execute, and the Trustee shall deliver, Guarantees of such Registered
Securities.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global Security, the
Depositary for such Registered Global Security may surrender such Registered
Global Security and the accompanying Guarantee in exchange in whole or in part
for Securities of the same series in definitive registered form on such terms as
are acceptable to the Issuer and such Depositary and a replacement Guarantee.
Thereupon, the Issuer shall execute, and the Trustee shall authenticate and
deliver, without service charge, and the Guarantors shall execute, and the
Trustee shall deliver:
(i) to the Person specified by such Depositary a
new Registered Security or Securities of the same series, of
any authorized denominations as requested by such Person, in
an aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Registered Global
Security, and a replacement Guarantee; and
(ii) to such Depositary a new Registered Global
Security in a denomination equal to the difference, if any,
between the principal amount of the surrendered Registered
Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant to
clause (i) above and a replacement Guarantee.
Upon the exchange of a Registered Global Security and the
accompanying Guarantee for Securities in definitive registered form without
Coupons, in authorized denominations, and replacement Guarantees, such
Registered Global Security and the accompanying Guarantee shall be canceled by
the Trustee or an agent of the Issuer or the Trustee. Securities in definitive
registered form without Coupons issued in exchange for a Registered Global
Security pursuant to this Section 2.8 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee.
The Trustee or such agent shall deliver such Securities and replacement
Guarantees, to or as directed by the Persons in whose names such Securities are
so registered.
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All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange. All Guarantees issued upon any
transfer or exchange Securities shall be valid obligations of the Guarantors,
guaranteeing the same debt of the Issuer, and entitled to the same benefits
under this Indenture, as the Guarantees surrendered upon such transfer or
exchange.
Notwithstanding anything herein or in the terms of any series
of Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officers' Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as computed for
Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security, or any Coupon
appertaining to any Security, or any Guarantee shall become mutilated, defaced
or be destroyed, lost or stolen, the Issuer in its discretion may execute, and
upon the written request of any officer of the Issuer, the Trustee shall
authenticate and deliver a new Security of the same series, maturity date,
interest rate and original issue date, bearing a number or other distinguishing
symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen,
or in exchange or substitution for the Security to which such mutilated,
defaced, destroyed, lost or stolen Coupon appertained, with Coupons appertaining
thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or
stolen, and the Guarantors shall execute a replacement Guarantee. In every case
the applicant for a substitute Security or Coupon shall furnish to the Issuer
and to the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Security or Coupon
and of the ownership thereof and in the case of mutilation or defacement shall
surrender the Security, and related Coupons, and the Guarantee to the Trustee or
such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or its agent) connected
therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a
substitute Security, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee
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and any agent of the Issuer or the Trustee such security or indemnity as any of
them may require to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Issuer and
the Trustee and any agent of the Issuer or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon and of
the ownership thereof.
Every substitute Security or Coupon of any series and every
replacement Guarantee issued pursuant to the provisions of this Section by
virtue of the fact that any such Security, Coupon or Guarantee is destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Issuer or the Guarantors, as the case may be, whether or not the destroyed, lost
or stolen Security, Coupon or Guarantee shall be at any time enforceable by
anyone and shall be entitled to all the benefits of (but shall be subject to all
the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of such series duly
authenticated and delivered hereunder and any and all other Guarantees duly
executed and delivered hereunder. All Securities, Coupons and Guarantees shall
be held and owned upon the express condition that, to the extent permitted by
law, the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced or destroyed, lost or stolen Securities, Coupons
and Guarantees and shall preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.10 Cancellation of Securities; Destruction Thereof.
All Securities, Coupons and Guarantees surrendered for
payment, redemption, registration of transfer or exchange, or for credit against
any payment in respect of a sinking or analogous fund, if surrendered to the
Issuer or any agent of the Issuer, to any Guarantor or any agent of such
Guarantor or to the Trustee or any agent of the Trustee, shall be delivered to
the Trustee or any agent of the Trustee for cancellation or, if surrendered to
the Trustee, shall be canceled by it (unless such Securities are to be
remarketed pursuant to the terms thereof); and no Securities, Coupons or
Guarantees shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall dispose of canceled
Securities, Coupons and Guarantees held by it and deliver a certificate of
disposition to the Issuer or the Guarantors, as the case may be. If the Issuer
or any Guarantor shall acquire any of the Securities or Coupons, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities or Coupons unless and until the same
are delivered to the Trustee or any agent of the Trustee or the agent of the
Trustee for cancellation.
Section 2.11 Temporary Securities.
Pending the preparation of definitive Securities for any
series, the Issuer may execute and the Trustee shall authenticate and deliver
temporary Securities for such series (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Trustee).
Temporary Securities of any series shall be issuable as Registered Securities
without Coupons, or as Unregistered Securities with or without Coupons attached
thereto, of any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such
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omissions, insertions and variations as may be appropriate for temporary
Registered Securities, all as may be determined by the Issuer with the
concurrence of the Trustee as evidenced by the execution and authentication
thereof. Temporary Securities may contain such references to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer, be guaranteed by the Guarantors and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay, the
Issuer shall execute and shall furnish definitive Securities of such series and
the Guarantors shall execute and deliver replacement Guarantees and thereupon
temporary Registered Securities of such series and the accompanying Guarantees
may be surrendered in exchange therefor without charge at each office or agency
to be maintained by the Issuer for that purpose pursuant to Section 3.2 and, in
the case of Unregistered Securities, at any agency maintained by the Issuer for
such purpose as specified pursuant to Section 2.3, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series, unless otherwise
established pursuant to Section 2.3. The provisions of this Section are subject
to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to
Section 2.3.
ARTICLE III
COVENANTS
Section 3.1 Payment of Principal and Interest.
The Issuer and the Guarantors covenant and agree for the
benefit of each series of Securities that they will duly and punctually pay or
cause to be paid the principal of, and interest on, each of the Securities of
such series (together with any additional amounts payable pursuant to the terms
of such Securities) at the place or places, at the respective times and in the
manner provided in such Securities and in the Coupons, if any, appertaining
thereto and in this Indenture. The interest on Securities with Coupons attached
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only upon presentation and surrender of the several
Coupons for such interest installments as are evidenced thereby as they
severally mature. If any temporary Unregistered Security provides that interest
thereon may be paid while such Security is in temporary form, the interest on
any such temporary Unregistered Security (together with any additional amounts
payable pursuant to the terms of such Security) shall be paid, as to the
installments of interest evidenced by Coupons attached thereto, if any, only
upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Securities for notation thereon
of the payment of such interest, in each case subject to any restrictions that
may be established pursuant to Section 2.3. The interest on Registered
Securities (together with any additional amounts payable pursuant to the terms
of such Securities) shall be payable only to or upon the written order of the
Holders thereof and at the option of the Issuer may
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be paid by wire transfer (to Holders of $10,000,000 or more of Registered
Securities) or by mailing checks for such interest payable to or upon the
written order of such Holders at their last addresses at they appear on the
registry books of the Issuer.
Section 3.2 Offices for Payments, etc.
The Issuer will maintain in The City of New York an agency
where the Registered Securities of each series may be presented for payment, an
agency where the Securities of each series may be presented for exchange as
provided in this Indenture and, if applicable, pursuant to Section 2.3, an
agency where the Registered Securities of each series may be presented for
registration of transfer as provided in this Indenture.
The Issuer will maintain in The City of New York an agency
where notices and demands to or upon the Issuer and/or the Guarantors, in
respect of the Securities of any series, the Coupons appertaining thereto, this
Indenture or any Guarantees may be served.
The Issuer will give to the Trustee written notice of the
location of each such agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section to be located
in The City of New York, or shall fail to give such notice of the location or of
any change in the location of any of the above agencies, presentations and
demands may be made and notices may be served at the Corporate Trust Office of
the Trustee.
The Issuer may from time to time designate one or more
additional agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.3 and where the Registered Securities of that series may be
presented for registration of transfer as provided in this Indenture, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
Section 3.3 Paying Agents.
Whenever the Issuer shall appoint a paying agent other than
the Trustee with respect to the Securities of any series, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section:
(a) that it will hold all sums received by it as
such agent for the payment of the principal of or interest on
the Securities of such series (whether such sums have been
paid to it by the Issuer and/or the Guarantors, or by any
other obligor on the Securities of such series) in trust for
the benefit of the Holders of the Securities of
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such series, or Coupons appertaining thereto, if any, or of
the Trustee;
(b) that it will give the Trustee notice of any
failure by the Issuer and/or the Guarantors (or by any other
obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such
series when the same shall be due and payable; and
(c) that at any time during the continuance of
any such failure, upon the written request of the Trustee, it
will forthwith pay to the Trustee all sums so held in trust by
such paying agent.
The Issuer and/or the Guarantors will, on or prior to each due
date of the principal of or interest on the Securities of such series, deposit
with the paying agent a sum sufficient to pay such principal or interest so
becoming due, and (unless such paying agent is the Trustee) the Issuer and/or
the Guarantors will promptly notify the Trustee of any failure to take such
action.
If the Issuer and the Guarantors shall designate the Issuer as
their paying agent with respect to the Securities of any series, they will, on
or before each due date of the principal of or interest on the Securities of
such series, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities of such series or the Coupons appertaining thereto a
sum sufficient to pay such principal or interest so becoming due. The Issuer
and/or the Guarantors will promptly notify the Trustee of any failure to take
such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 10.1, the Issuer and/or the Guarantors may at any time, for
the purpose of obtaining a satisfaction and discharge with respect to one or
more or all series of Securities hereunder, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust for any such series by
the Issuer and/or the Guarantors or any paying agent hereunder, as required by
this Section, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
The Issuer and the Guarantors hereby designate the Trustee as
their initial paying agent hereunder.
Section 3.4 Written Statement to Trustee.
The Issuer and each Guarantor will deliver to the Trustee on
or before April 15 in each year (beginning in 2000) a written statement, signed
by two of their officers (which need not comply with Section 11.5), stating that
in the course of the performance by the signers of their duties as officers of
the Issuer and each Guarantor, as the case may be, they would normally have
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knowledge of any default by the Issuer or such Guarantor in the performance or
fulfillment of any covenant, agreement or condition contained in this Indenture,
stating whether or not they have knowledge of any such default and, if so,
specifying each such default of which the signers have knowledge and the nature
thereof.
Section 3.5 Limitation on Liens.
The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto as provided pursuant to Section
2.3.
(a) The Issuer will not itself, and will not permit any
Consolidated Subsidiary to, issue, assume or guarantee any Indebtedness, if such
Indebtedness is secured by mortgage, pledge, security interest or other lien or
encumbrance (any mortgage, pledge, security interest or other lien or
encumbrance being hereinafter in this Section 3.5 referred to as a "Lien") upon
or with respect to any Principal Property, as defined below, or on the capital
stock of any Consolidated Subsidiary that owns Principal Property (unless all
obligations and indebtedness thereby secured are held by the Issuer or a
Consolidated Subsidiary) without making effective provision whereby the
Securities shall be secured by such Lien equally and ratably with any and all
other obligations and indebtedness thereby secured; provided, however, that the
foregoing restrictions shall not be applicable to:
(i) any Lien existing on any Principal Property
of the Issuer or any Consolidated Subsidiary at the date of
this Indenture;
(ii) any Lien created by a Consolidated
Subsidiary in favor of the Issuer or any wholly-owned
Consolidated Subsidiary securing Indebtedness of such
Consolidated Subsidiary to the Issuer or to a wholly-owned
Consolidated Subsidiary;
(iii) any Lien existing on any asset of any
corporation at the time such corporation becomes a
Consolidated Subsidiary and not created in contemplation of
such event;
(iv) any Lien on any asset of any corporation
existing at the time such corporation is merged or
consolidated with or into the Issuer or a Consolidated
Subsidiary and not created in contemplation of such event;
(v) any Lien on any asset existing at the time
of acquisition thereof by the Issuer or any Consolidated
Subsidiary and not created in contemplation of such event;
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(vi) any Lien on any asset or any improvement
thereof securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring
such asset or the making of any improvement thereof; provided
that such Lien attaches to such asset concurrently with or
within 180 days after the acquisition thereof or the making of
such improvement; and provided, further, that the principal
amount of the Indebtedness secured by any such Lien, together
with all other Indebtedness secured by a Lien on such
property, shall not exceed the purchase price of such property
or the cost of such improvement;
(vii) any Lien arising out of the refinancing,
extension, renewal or refunding of any Indebtedness secured by
any Lien permitted by any of clauses (i) through (vi) above;
provided that such Indebtedness is not increased and is not
secured by any additional assets; and
(viii) liens arising in the ordinary course of
business of the Issuer or any Consolidated Subsidiary which
(A) do not secure Indebtedness and (B) do not in the aggregate
materially detract from the value of the assets of the Issuer
or such Consolidated Subsidiary, as the case may be, or
materially impair the use thereof, in the operation of the
Issuer's or such Consolidated Subsidiary's business.
(b) Notwithstanding the provisions of subsection (a) of
this Section 3.5, the Issuer or any Consolidated Subsidiary may issue, assume or
guarantee Indebtedness secured by a Lien which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with all other
such Indebtedness of the Issuer and its Consolidated Subsidiaries and the
Attributable Debt in respect of Sale and Lease-Back Transactions (as defined in
Section 3.6) existing at such time (other than Sale and Lease-Back Transactions
not subject to the limitation contained in Section 3.6), does not at the time
exceed 10% of Consolidated Net Tangible Assets. The term "Attributable Debt" as
used in this paragraph shall mean, as of any particular time, the present value,
discounted at the Composite Rate, of the obligation of a lessee for rental
payments during the remaining term of any lease (including any period for which
such lease has been extended or may, at the option of the lessor, be extended).
(c) For the purposes of this Section 3.5, the term
"Principal Property" means (i) a parcel of improved or unimproved real estate or
other physical facility or depreciable asset of the Issuer or a Subsidiary, the
net book value of which on the date of determination exceeds 2% of the
Consolidated Net Tangible Assets and (ii) any group of parcels of real estate,
other physical facilities, and/or depreciable assets of the Issuer and/or its
Subsidiaries, the net book value of which, when sold in one or a series of
related Sale and Lease-Back Transactions or securing Indebtedness issued in
respect of such Principal Properties, on the date of determination exceeds 2% of
the Consolidated Net Tangible Assets. For purposes of the foregoing, "related
Sale and Lease-Back
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Transactions" refers to any two or more such contemporaneous transactions which
are on substantially similar terms with substantially the same parties.
Section 3.6 Limitation on Sale and Lease-Back.
The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto as provided pursuant to Section
2.3.
The Issuer will not, nor will it permit any Consolidated
Subsidiary to, enter into any arrangement with any Person (other than the
Issuer) providing for the leasing by the Issuer or a Consolidated Subsidiary of
any Principal Property (except for temporary leases for a term of not more than
three years), which property has been or is to be sold or transferred by the
Issuer or such Consolidated Subsidiary to such Person (herein referred to as a
"Sale and Lease-Back Transaction"), unless (a) the net proceeds to the Issuer or
such Consolidated Subsidiary from such sale or transfer equal or exceed the fair
value (as determined by the Board of Directors) of the property so leased, (b)
the Issuer or such Consolidated Subsidiary would be entitled to incur
Indebtedness secured by a Lien on the property to be leased pursuant to Section
3.5, or (c) the Issuer shall, and in any such case the Issuer covenants that it
will, apply an amount equal to the fair value (as determined by the Board of
Directors) of the property so leased to the retirement (other than any mandatory
retirement), within 90 days of the effective date of any such Sale and
Lease-Back Transaction, of Funded Indebtedness of the Issuer.
Section 3.7 Guarantees.
The Company and each Guarantor will, and the Company will
cause each Guarantor to, ensure at all times that, unless otherwise permitted by
this Indenture, each Guarantee will remain in full force and effect and shall
not be subordinated by written agreement in right of payment to any Obligation
or other obligations of the Guarantor, unless required by applicable law.
Section 3.8 Additional Guarantors.
The Company will cause each Subsidiary that becomes a
Subsidiary after the date hereof to execute and deliver a supplemental indenture
pursuant to which it will become a Guarantor under this Indenture.
Section 3.9 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not permit any of its
Consolidated Subsidiaries to, directly or indirectly, create or otherwise cause
or permit to exist or become effective any encumbrance or restriction on the
ability of any Consolidated Subsidiary to (a) pay dividends or make any other
distributions on or in respect of its capital stock; (b) make loans or advances
or to pay any Indebtedness or other obligation owed to the Company or any other
Consolidated Subsidiary of the Company; or (c) transfer any of its property or
assets to the Company or any other Consolidated Subsidiary of the Company.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER, THE GUARANTORS AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders.
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The Issuer covenants and agrees that it will furnish or cause
to be furnished to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders of the Registered Securities
of each series:
(a) semiannually and not more than 15 days after
each record date for the payment of interest on such
Registered Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section
2.3 for non-interest bearing Registered Securities in each
year; and
(b) at such other times as the Trustee may
request in writing, within 30 days after receipt by the Issuer
of any such request, such list to be as of a date not more
than 15 days prior to the time such information is furnished;
provided that if and so long as the Trustee shall be the Security registrar for
such series and all of the Securities of any series are Registered Securities,
such list shall not be required to be furnished.
Section 4.2 Preservation and Disclosure of Securityholders Lists.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and addresses of the
Holders of each series of Registered Securities (i) contained in the most recent
list furnished to it as provided in Section 4.1 and (ii) received by it in the
capacity of Security registrar for such series, if so acting. The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon receipt of a
new list so furnished.
(b) In case three or more Holders of Securities
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular series (in which
case the applicants must all hold Securities of such series) or with holders of
all Securities respect to their rights under this Indenture, the Guarantees or
under such Securities and such application is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit, then
the Trustee shall, within five Business Days after the receipt of such
application, at its election, either:
(i) afford to such applicants access to the
information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section; or
(ii) inform such applicants as to the approximate
number of Holders of Registered Securities of such series or
of all Registered Securities, as the case may be, whose names
and addresses appear in the information preserved at the time
by the Trustee, in accordance
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with the provisions of subsection (a) of this Section, and as
to the approximate cost of mailing to such Securityholders the
form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Registered Securities, as the case may be, whose name and address appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Registered Securities of such series or of all Registered Securities, as the
case may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Securityholders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every Holder of Securities and Coupons, by
receiving and holding the same, agrees with the Issuer and the Trustee that
neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with the
provisions of subsection (b) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
such subsection (b).
Section 4.3 Reports by the Issuer and each Guarantor.
The Issuer and each Guarantor covenants:
(a) to file with the Trustee, within 15 days after the
Issuer and each Guarantor is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Issuer and each
Guarantor may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, or if the
Issuer and the Guarantors are not required to file information, documents or
reports pursuant to either of such Sections, then to file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from time to
time by the
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Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended, or in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Issuer and each Guarantor with the conditions and covenants
provided for in this Indenture as may be required from time to time by such
rules and regulations; and
(c) to transmit by mail to the Holders of Securities, in
the manner and to the extent required by Sections 6.6 and 11.4, within 30 days
after the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Issuer and each Guarantor
pursuant to subsections (a) and (b) of this Section as may be required to be
transmitted to such Holders by rules and regulations prescribed from time to
time by the Commission.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default.
"Event of Default", with respect to Securities of any series
wherever used herein, means any one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the
principal of (or premium, if any, on) any of the Securities of such series as
and when the same shall become due and payable either at maturity, upon
redemption, by declaration or otherwise; or
(c) failure on the part of the Issuer or any Guarantor to
duly observe or perform any other covenant or agreement on the part of the
Issuer or any Guarantor in respect of the Securities of such series (other than
a covenant or warranty in respect of the Securities of such series a default in
the performance or breach of which is elsewhere in this Section specifically
dealt with) or any Guarantee or contained in this Indenture, and continuance of
such default or breach for a
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period of 90 days after there has been given, by registered or certified mail,
to the Issuer and the Guarantors by the Trustee or to the Issuer, the Guarantors
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of all series affected thereby, a written notice
specifying such failure or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Issuer, any Consolidated
Subsidiary or any Guarantor in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Issuer, any Consolidated Subsidiary or any
Guarantor or for any substantial part of its property or ordering the winding up
or liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(e) the Issuer, any Consolidated Subsidiary or any
Guarantor shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such law, or
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Issuer, any Consolidated Subsidiary or any Guarantor or for any substantial part
of its property, or make any general assignment for the benefit of creditors; or
(f) default (i) in the payment of any principal on any
Indebtedness of the Issuer or any Subsidiary in an aggregate principal amount in
excess of $10,000,000 after giving effect to any applicable grace period and the
holder thereof shall have taken affirmative action to enforce the payment
thereof, or (ii) in the performance of any term or provision of any Indebtedness
of the Issuer or any Subsidiary in an aggregate principal amount in excess of
$10,000,000 that results in such Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise become due and payable,
unless, in the case of either clause (i) or (ii) above, (x) such acceleration or
action to enforce payment, as the case may be, has been rescinded or annulled,
(y) such Indebtedness has been discharged or (z) a sum sufficient to discharge
in full such Indebtedness has been deposited in trust by or on behalf of the
Issuer, in each case, within a period of 10 days after there has been given, by
registered or certified mail, to the Issuer by the Trustee or to the Issuer and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of all series affected thereby, a written notice
specifying such default or defaults and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the provisions of
Section 6.1 and 6.2, the Trustee shall not be deemed to have knowledge of such
default unless either (A) a Responsible Officer of the Trustee shall have actual
knowledge of such default or (B) the Trustee shall have received written notice
thereof from the Issuer, from any Holder, from the holder of any such
Indebtedness or from the trustee under any such mortgage, indenture or other
instrument; or
(g) any Guarantee shall cease to be in full force and
effect or is declared null and void or any Guarantor shall deny that it has any
further liability under any Guarantee, or shall give
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notice to such effect (other than by reason of the termination of this Indenture
or the release of any Guarantee in accordance with Section 13.4); or
(h) any other Event of Default provided in the
supplemental indenture under which such series of Securities is issued or in the
form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (g) or (h) (if the
Event of Default under clause (c) or (h), as the case may be, is with respect to
less than all series of Securities then Outstanding) occurs and is continuing,
then, and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Securities of each such affected series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer and the
Guarantors (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Securities of such affected series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) of all Securities of such series and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable. If an
Event of Default described in clause (c), (h) (if the Event of Default under
clause (c) or (h), as the case may be, is with respect to all series of
Securities then Outstanding), (d), (e) or (f) occurs and is continuing, then,
and in each and every such case, unless the principal of all the Securities
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in writing to the Issuer
and the Guarantors (and to the Trustee if given by Securityholders), may declare
the entire principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of all the Securities then Outstanding, and interest accrued thereon,
if any, to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Issuer and/or the Guarantors
shall pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series (or of all the
Securities, as the case may be) and the principal of any and all Securities of
such series (or of all the Securities, as the case may be) which shall have
become due otherwise than by acceleration (with interest upon such principal)
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series (or at the respective
rates of interest or Yields to Maturity of all the Securities, as the case may
be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and each predecessor
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the
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Trustee except as a result of negligence or bad faith, and if any and all Events
of Default under the Indenture, other than the non-payment of the principal of
securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case the
Holders of a majority in aggregate principal amount of all the Securities of
such series, each series voting as a separate class (or of all the Securities,
as the case may be, voting as a single class), then Outstanding, by written
notice to the Issuer, the Guarantors and to the Trustee, may waive all defaults
with respect to each such series (or with respect to all the Securities, as the
case may be) and rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.
The Issuer and each Guarantor covenant that (a) in case
default shall be made in the payment of any installment of interest on any of
the Securities of any series when such interest shall have become due and
payable, and such default shall have continued for a period of 30 days or (b) in
case default shall be made in the payment of all or any part of the principal of
any of the Securities of any series when the same shall have become due and
payable, whether upon maturity of the Securities of such series or upon any
redemption or by declaration or otherwise, then upon demand of the Trustee, the
Issuer and the Guarantors will pay, jointly and severally, to the Trustee for
the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal or interest, as the case may be (with interest
to the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee and
any other amounts owing to the Trustee under Section 6.7 hereunder except as a
result of its negligence or bad faith.
In case the Issuer and the Guarantors shall fail forthwith to
pay such amounts upon such demand, the Trustee, in its own name and as trustee
of an express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums
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so due and unpaid, and may prosecute any such action or proceedings to judgment
or final decree, and may enforce any such judgment or final decree against the
Issuer, any Guarantor or other obligor upon such Securities and collect in the
manner provided by law out of the property of the Issuer, any Guarantor or other
obligor upon such Securities, wherever situated, the moneys adjudged or decreed
to be payable.
In case there shall be pending proceedings relative to the
Issuer, any Guarantor or any other obligor upon the Securities under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its property, any
Guarantor or its property or such other obligor, or in case of any other
comparable judicial proceedings relative to the Issuer, any Guarantor or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer, any Guarantor or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee, except as a result of negligence or bad faith) and of
the Securityholders allowed in any judicial proceedings relative to the Issuer,
any Guarantor or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer, any Guarantor or such other obligor;
(b) unless prohibited by applicable law and regulations,
to vote on behalf of the Holders of the Securities of any series in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings; and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to make payments to
the Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
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each predecessor Trustee and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee and all other amounts due to the Trustee or
any predecessor Trustee pursuant to Section 6.7 except as a result of Trustee's
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, under any of the Securities of any series or Coupons appertaining to
such Securities or under any Guarantee may be enforced by the Trustee without
the possession of any of the Securities of such series, or Coupons appertaining
to such Securities, or such Guarantee or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party), the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
Section 5.3 Application of Proceeds.
Any moneys or other property collected by the Trustee pursuant
to this Article in respect of any series shall be applied in the following order
at the date or dates fixed by the Trustee and, in case of the distribution of
such moneys or other property on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities and the accompanying Guarantees in respect of which moneys or other
property have been collected and stamping (or otherwise noting) thereon the
payment, or issuing Securities of such series in reduced principal amounts and
replacement Guarantees in exchange for the presented Securities of like series
if only partially paid and such accompanying Guarantees, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which moneys or other property has been collected,
including reasonable compensation to the Trustee and each predecessor
Trustee and their respective agents and attorneys and of all expenses
and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee and all other amounts due to the Trustee or
any predecessor Trustee pursuant to Section 6.7 except as a result of
Trustee's negligence or bad faith;
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SECOND: In case the principal of the Securities of such series
in respect of which moneys or other property has been collected shall
not have become and be then due and payable, to the payment of interest
on the Securities of such series in default in the order of the
maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys or other property has been collected shall
have become and shall be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Securities of such
series for principal and interest, with interest upon the overdue
principal, and (to the extent that such interest has been collected by
the Trustee) upon overdue installments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series;
and in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to
the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of
any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid
interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer, the Guarantors or any other person lawfully entitled thereto.
Section 5.4 Suits for Enforcement.
In case an Event of Default has occurred, has not been waived
and is continuing, the Trustee may in its discretion proceed to protect and
enforce the rights vested in it and the Holders of any series of Securities by
this Indenture, such Securities or the accompanying Guarantees by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture, such Securities or such Guarantees or in
aid of the exercise of any power granted in this Indenture, such Securities or
such Guarantees or to enforce any other legal or equitable rights vested in the
Trustee and the Holders of such Securities by this Indenture, such Securities or
such Guarantees or by law.
Section 5.5 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any right
under this Indenture, any Security or any Guarantee, and such proceedings shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such
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case the Issuer, the Guarantors and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Guarantors, the Trustee and the Securityholders shall
continue as though no such proceedings had been taken.
Section 5.6 Limitations on Suits by Securityholders.
No Holder of any Security of any series or of any Coupon
appertaining thereto shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of such series
then Outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security or Coupon with
every other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture, any Security or any Guarantee to affect, disturb or prejudice
the rights of any other such Holder of Securities or Coupons appertaining to
such Securities, or to obtain or seek to obtain priority over or preference to
any other such Holder or to enforce any right under this Indenture, any Security
or any Guarantee, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities of the applicable series
and Coupons appertaining to such Securities. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 5.7 Unconditional Right of Securityholders to Institute Certain
Suits.
Notwithstanding any other provision in this Indenture, any
Security or any Guarantee, the right of any Holder of any Security or Coupon to
receive payment of the principal of and interest on such Security or Coupon on
or after the respective due dates expressed in such Security or Coupon, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default.
Except as provided in Section 5.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
Coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
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cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture, any Security or any Guarantee or by law to the Trustee or to
the Holders of Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Holders of
Securities or Coupons.
Section 5.9 Control by Holders of Securities.
The Holders of a majority in aggregate principal amount of the
Securities of each series affected (with each series voting as a separate class)
at the time Outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture, the Securities of such series or the accompanying Guarantees; and
provided, further, that the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that the Trustee shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture, the Securities of such series or
the accompanying Guarantees shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
Section 5.10 Waiver of Past Defaults.
Prior to the acceleration of the maturity of any Securities of
any series as provided in Section 5.1, the Holders of a majority in aggregate
principal amount of the Securities of all series at the time Outstanding with
respect to which an Event of Default shall have occurred and be continuing
voting as a single class may on behalf of the Holders of all the Securities of
such series waive any past default or Event of Default described in Section 5.1
and its consequences, except a default in respect of a covenant or provision
hereof which cannot be modified or
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amended without the consent of the Holder of each Security affected. In the case
of any such waiver, the Issuer, the Guarantors, the Trustee and the Holders of
all such Securities shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 5.11 Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (c) or (h) of Section 5.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or, in the case of any suit relating to or arising under clause (c), (h) (if the
suit under clause (c) or (h) relates to all the Securities then Outstanding),
(d), (e) or (f) of Section 5.1, 10% in aggregate principal amount of all
Securities then Outstanding, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of or interest on any Security
on or after the due date expressed in such Security or any date fixed for
redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing
with respect to the Securities of any series, the Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in its exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default
with respect to the Securities of any series:
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(1) the Trustee need perform only those duties
that are specifically set forth in this Indenture and the Trustee shall
not be liable except for the performance of such duties and obligations
as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into the document against the
Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture, but need not verify or confirm the
accuracy thereof.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect
of paragraph (b) of this Section 6.1;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer unless it
is proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 5.9.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this
Section 6.1.
(e) No provision of this Indenture shall require the
Trustee to extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Moneys held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Issuer.
(g) The Trustee shall have no responsibility relating to
the filing of any UCC financing statements or continuation statements or with
regard to any other filing concerning the Securities.
Section 6.2 Rights of Trustee.
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(a) The Trustee may rely, and shall be protected in
relying, upon on any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel.
(c) Subject to the provisions of Section 6.1(c), the
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers.
(d) Before the Trustee acts or refrains from acting the
Trustee may consult with counsel of its selection and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon in accordance with such advice or Opinion
of Counsel.
(e) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee indemnity reasonable to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
(f) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(g) Prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters stated in
any resolution, Officer's Certificate, or other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or document
unless requested in writing so to do by the Holders or not less than a majority
in aggregate principal amount of the Securities then Outstanding; provided that,
if the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be paid by
the Issuer or, if advanced by the Trustee, shall be repaid by the Issuer upon
demand.
(h) the Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties hereunder.
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(i) the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any covenants, conditions or
agreements on the part of the Issuer or any Guarantor, except as otherwise set
forth herein, but the Trustee may require of the Issuer or any Guarantor full
information and advice as to the performance of the covenants, conditions and
agreements contained herein and shall be entitled in connection herewith to
examine the books, records and premises of the Issuer or any Guarantor.
(j) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty and the Trustee
shall not be answerable for other than its negligence or willful default.
(k) except for (i) a default under Section 5.1(a) or (b)
hereof or (ii) any other event of which the Trustee has "actual knowledge" and
which event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not be
deemed to have notice of any default or event unless specifically notified in
writing of such event by the Issuer or the Holders of not less than 25% in
aggregate principal amount of the Securities Outstanding; as used herein, the
term "actual knowledge" means the actual fact or statement of knowing, without
any duty to make any investigation with regard thereto.
Section 6.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Trustee. Any paying
agent, registrar or co-registrar may do the same with like rights. However, the
Trustee must comply with Sections 6.10 and 6.11.
Section 6.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture, the Securities or the Guarantees, it shall not be
accountable for the Issuer's nor any Guarantor's use of the proceeds from the
Securities, it shall not be responsible for any statement in the registration
statement for the Securities and the Guarantees under the Securities Act of
1933, as amended, or in the Indenture, the Securities (other than its
certificate of authentication) or the Guarantees.
Section 6.5 Notice of Defaults.
If a default occurs and is continuing with respect to any
Securities of any Series and if the Trustee has actual knowledge of such
default, the Trustee shall give to each Securityholder of such series notice of
the default within 90 days after such default occurs. Except in the case of a
default described in Section 5.1(a) or (b), the Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Securityholders of
such series.
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Section 6.6 Reports by Trustee to Holders.
Within 60 days after each July 1 beginning with the July 1
following the date of this Indenture, the Trustee shall mail to each
Securityholder of any series and each other person specified in Section 313(c)
of the Trust Indenture Act of 1939 a brief report dated as of such July 1 that
complies with Section 313(a) of the Trust Indenture Act of 1939 to the extent
required thereby. The Trustee also shall comply with Section 313(b) of the Trust
Indenture Act of 1939.
A copy of each report at the time of its mailing to
Securityholders of any series shall be filed with the Commission and each
securities exchange on which the Securities of any series are listed. The Issuer
agrees to notify the Trustee whenever the Securities of any series become listed
on any securities exchange and of any delisting thereof.
Section 6.7 Compensation and Indemnity.
The Issuer and each Guarantor, jointly and severally, agree:
(a) to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed to
in writing between the Issuer and the Trustee for all services rendered
by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(b) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the expenses, advances and
disbursements of its agents and counsel), except to the extent any such
expense, disbursement or advance may be attributable to its negligence
or willful misconduct; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (including reasonable fees and
expenses of its counsel) arising out of or in connection with the
acceptance or administration of this trust or the performance of its
duties hereunder, including the costs and expenses of defending itself
against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder,
except to the extent that any such loss, liability or expense may be
attributable to its negligence or willful misconduct.
As security for the performance of the obligations of the
Issuer and each Guarantor in this Section 6.7, the Issuer, each Guarantor and
each Holder agree that the Trustee shall have a lien prior to the Securities on
all moneys or property held or collected by the Trustee.
"Trustee" for purpose of this Section 6.7 includes any
predecessor trustee, provided that the negligence or bad faith of any Trustee
shall not be attributable to any other Trustee.
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The Issuer's payment obligations pursuant to this Section 6.7
shall constitute additional indebtedness hereunder and shall survive the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a default specified in Sections 5.1(d) and 5.1(e), such expenses
(including reasonable fees and expenses of its counsel) are intended to
constitute expenses of administration under bankruptcy law.
Section 6.8 Replacement of Trustee.
The Trustee may resign at any time with respect to Securities
of one or more series by so notifying the Issuer; provided, however, no such
resignation shall be effective until a successor Trustee has accepted its
appointment pursuant to this Section 6.8. The Holders of a majority in aggregate
principal amount of the Outstanding Securities of any series may remove the
Trustee with respect to such series at the time outstanding by so notifying the
Trustee and the Issuer. The Issuer shall remove the Trustee if:
(a) the Trustee fails to comply with Section 6.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the
Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, with respect to the Securities of one or
more series, the Issuer shall promptly appoint, by resolution of its Board of
Directors, a successor Trustee with respect to the Securities of such series.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture with respect to the Securities of such series. The
successor Trustee shall mail a notice of its succession to Securityholders so
affected. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in Section
6.7.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuer or the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
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Section 6.9 Successor Trustee by Merger.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another corporation, the resulting, surviving or transferee corporation without
any further act shall be the successor Trustee.
Section 6.10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of
Section 310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. Neither the Issuer nor any Person
directly or indirectly controlling, controlled by or under common control with
the Issuer shall serve as Trustee hereunder. The Trustee shall comply with
Section 310(b) of the Trust Indenture Act of 1939.
Section 6.11 Preferential Collection of Claims Against Issuer.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act of 1939, excluding any creditor relationship listed in Section
311(b) of the Trust Indenture Act of 1939. A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act of 1939 to
the extent indicated therein.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by a specified percentage in principal amount of the Securityholders of any or
all series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Sections 6.1 and 6.2)
conclusive in favor of the Trustee, the Issuer and the Guarantors if made in the
manner provided in this Article.
Section 7.2 Proof of Execution of Instruments and of Holding of
Securities.
Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in the
following manner:
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(a) The fact and date of the execution by any Holder of
any instrument may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of
deeds or administer oaths that the person executing such instruments
acknowledged to him the execution thereof, or by an affidavit of a
witness to such execution sworn to before any such notary or other such
officer. Where such execution is by or on behalf of any legal entity
other than an individual, such certificate or affidavit shall also
constitute sufficient proof of the authority of the person executing
the same. The fact of the holding by any Holder of an Unregistered
Security of any series, and the identifying number of such Security and
the date of his holding the same, may be proved by the production of
such Security or by a certificate executed by any trust company, bank,
banker or recognized securities dealer wherever situated satisfactory
to the Trustee, if such certificate shall be deemed by the Trustee to
be satisfactory. Each such certificate shall be dated and shall state
that on the date thereof a Security of such series bearing a specified
identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the person
named in such certificate. Any such certificate may be issued in
respect of one or more Unregistered Securities of one or more series
specified therein. The holding by the person named in any such
certificate of any Unregistered Securities of any series specified
therein shall be presumed to continue for a period of one year from the
date of such certificate unless at the time of any determination of
such holding (1) another certificate bearing a later date issued in
respect of the same Securities shall be produced, or (2) the Security
of such series specified in such certificate shall be produced by some
other person, or (3) the Security of such series specified in such
certificate shall have ceased to be Outstanding. Subject to Sections
6.1 and 6.2, the fact and date of the execution of any such instrument
and the amount and numbers of Securities of any series held by the
person so executing such instrument and the amount and numbers of any
Security or Securities for such series may also be proven in accordance
with such reasonable rules and regulations as may be prescribed by the
Trustee for such series or in any other manner which the Trustee for
such series may deem sufficient.
(b) In the case of Registered Securities, the ownership
of such Securities shall be proved by the Security register or by a
certificate of the Security registrar.
Section 7.3 Holders to Be Treated as Owners.
The Issuer, the Guarantors, the Trustee and any agent of the
Issuer, the Guarantors or the Trustee may deem and treat the person in whose
name any Security shall be registered upon the Security register for such series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer, the Guarantors nor the Trustee nor
any agent of the Issuer, the Guarantors or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Guarantors, the Trustee and any agent of
the Issuer, the Guarantors or the Trustee may treat the Holder of any
Unregistered Security and the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether
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or not such Unregistered Security or Coupon shall be overdue) for the purpose of
receiving payment thereof or on account thereof and for all other purposes and
neither the Issuer, the Guarantors, the Trustee, nor any agent of the Issuer,
the Guarantors or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Unregistered Security
or Coupon.
Section 7.4 Securities Owned by Issuer or any Guarantor Deemed Not
Outstanding.
In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer, any Guarantor or any other obligor on the Securities with
respect to which such determination is being made or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer, a Guarantor or any other obligor on the Securities with
respect to which such determination is being made shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities which the
Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right to so act
with respect to such Securities and that the pledgee is not the Issuer, any
Guarantor or any other obligor upon the Securities or any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer, any Guarantor or any other obligor on the Securities.
In case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
Section 7.5 Right of Revocation of Action Taken.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.1, of the taking of any action by the Holders
of the percentage in aggregate principal amount of the securities of any or all
series, as the case may be, specified in this Indenture in connection with such
action, any Holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the Holders
of which have consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in this Article,
revoke such action so far as concerns such Security. Except as aforesaid, any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security and of
any Securities issued in exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in regard thereto
is made upon any such Security. Any action taken by
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the Holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in connection
with such action shall be conclusively binding upon the Issuer, the Guarantors,
the Trustee and the Holders of all the Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer and each Guarantor, when authorized by a resolution
of their respective Boards of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order), and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to
the Issuer or to a Guarantor, or successive successions, and the
assumption by the successor corporation of the covenants, agreements
and obligations of the Issuer or a Guarantor pursuant to Article IX;
(c) to add to the covenants of the Issuer or the
Guarantors such further covenants, restrictions, conditions or
provisions as the Issuer, the Guarantors and the Trustee shall consider
to be for the protection of the Holders of Securities or Coupons, and
to make the occurrence, or the occurrence and continuance, of a default
in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set forth;
provided that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such an Event of Default or
may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive
such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein, in any Security or in any Guarantee or in
any supplemental indenture which may be defective or inconsistent with
any other provision contained herein, in any Security or in any
Guarantee or in any supplemental indenture, or to make any other
provisions as the Issuer
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may deem necessary or desirable; provided that no such action shall
adversely affect the interests of the Holders of the Securities,
Coupons or Guarantees;
(e) to establish the form of terms or Securities of any
series or of the Coupons appertaining to such Securities as permitted
by Sections 2.1 and 2.3;
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 6.8; or
(g) to add any Guarantor pursuant to Section 13.3 hereof
or otherwise.
The Trustee is hereby authorized to join with the Issuer and
the Guarantors in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
Section 8.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article VII) of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer and each Guarantor, when authorized
by a resolution of their respective Boards of Directors (which resolution may
provide general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or pursuant
to an Issuer Order), and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture, any Security
or any Guarantee or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series or of the
Coupons appertaining to such Securities; provided that no such supplemental
indenture shall (a) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof, or reduce
the amount of the principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof pursuant to Section
5.1 or the amount thereof provable in bankruptcy pursuant to Section 5.2, or
impair or affect the right of any
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Securityholder to institute suit for payment thereof or, if the Securities
provide therefor, any right of repayment at the option of the Securityholder, in
each case without the consent of the Holder of each Security so affected, (b)
reduce the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, (c) modify the
ranking or priority of any Security or any Guarantee in respect thereof of any
Guarantor in any manner adverse to the Holders of such Security or (d) release
any Guarantor from any of its obligations under its Guarantee or this Indenture
otherwise than in accordance with this Indenture.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer and the Guarantors, accompanied
by a copy of a resolution of their respective Boards of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order) certified by the secretary or an assistant
secretary of the Issuer and the Guarantors authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Securityholders as aforesaid and other documents, if any, required by
Section 7.1, the Trustee shall join with the Issuer and the Guarantors in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture, the
Guarantees or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer, the Guarantors and
the Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall give notice thereof (i) to the Holders of then
Outstanding Registered Securities of each series affected thereby, by mailing a
notice thereof by first-class mail to such Holders at their addresses as they
shall appear on the Security register, (ii) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Trustee, by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so furnished to the
Trustee and (iii) if any Unregistered Securities of a series affected thereby
are then Outstanding, to all Holders thereof, by publication of a notice thereof
at least once in an Authorized Newspaper in the Borough of Manhattan, The City
of New York, and in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to give such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
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Section 8.3 Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture pursuant to
the provisions hereof, this Indenture, any Security and any Guarantee shall be
and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture, any Security and any Guarantee of the Trustee, the Issuer,
the Guarantors and the Holders of Securities of each series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture, any Security and any Guarantee for any
and all purposes.
Section 8.4 Documents to Be Given to Trustee.
The Trustee, subject to the provisions of Sections 6.1 and
6.2, shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article complies with the applicable provisions of this Indenture and that all
conditions precedent therewith have been satisfied.
Section 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series and replacement Guarantees so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Issuer and the Guarantors, executed by the Issuer and authenticated and
delivered by the Trustee in exchange for the Securities of such series then
Outstanding, in the case of the Securities, and executed by the Guarantors and
delivered by the Trustee in exchange for the Guarantees then outstanding, in the
case of the Guarantees.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Issuer May Consolidate, etc., on Certain Terms.
The Issuer covenants that it will not merge or consolidate
with any other Person or sell or convey (including by way of lease) all or
substantially all of its assets to any Person, unless (i) either the Issuer
shall be the continuing corporation, or the successor corporation or the Person
which acquires by sale or conveyance substantially all the assets of the Issuer
(if other than the Issuer) shall be a corporation or entity organized under the
laws of the United States of America or
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any state thereof and shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities and Coupons, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Issuer, by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation or entity, and (ii) the Issuer,
such Person or such successor corporation or entity, as the case may be, shall
not, immediately after such merger or consolidation, or such sale or conveyance,
be in default in the performance of any such covenant or condition.
Section 9.2 Successor Issuer Substituted.
In case of any such consolidation, merger, sale or conveyance,
and following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Issuer, with the same
effect as if it had been named herein. Such successor corporation may cause to
be signed, and may issue either in its own name or in the name of the Issuer
prior to such succession any or all of the Securities issuable hereunder which,
together with any Coupons appertaining thereto, theretofore shall not have been
signed by the Issuer and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Issuer and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities, together with any Coupons
appertaining thereto, which previously shall have been signed and delivered by
the officers of the Issuer to the Trustee for authentication, and any
Securities, together with any Coupons appertaining thereto, which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All of the Securities so issued, together with any Coupons
appertaining thereto, shall in all respects have the same legal rank and benefit
under this Indenture as the Securities and Coupons theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Securities and Coupons had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities and Coupons thereafter to be issued as may be
appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease), the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
Section 9.3 Opinion of Counsel Delivered to Trustee.
The Trustee, subject to the provisions of Sections 6.1 and
6.2, may receive an Opinion of Counsel, prepared in accordance with Section
11.5, as conclusive evidence that any such consolidation, merger, sale, lease or
conveyance, and any such assumption, and any such liquidation
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or dissolution, complies with the applicable provisions of this Indenture and
that all conditions precedent therewith have been satisfied.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Issuer and/or the Guarantors shall
have paid or caused to be paid the principal of and interest on all the
Securities of any series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Securities of such series and Coupons
appertaining thereto which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9) as and when the same shall
have become due and payable, or (b) the Issuer and/or the Guarantors shall have
delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Securities of such series and Coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.9), or (c) in the case of any series of Securities
where the exact amount of principal of and interest due on such Securities can
be determined at the time of making the deposit referred to in clause (ii)
below, (i) all the Securities of such series and all unmatured Coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and (ii) the Issuer and/or the Guarantors shall have irrevocably deposited or
caused to be deposited with the Trustee as trust funds the entire amount in cash
(other than moneys repaid by the Trustee or any paying agent to the Issuer or
any Guarantor in accordance with Section 10.4) or direct obligations of the
United States of America, backed by its full faith and credit ("U.S. Government
Obligations"), maturing as to principal and interest in such amounts and at such
times as will insure the availability of cash, or a combination thereof,
sufficient in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on all Securities of such series
and Coupons appertaining thereto on each date that such principal or interest is
due and payable and to pay the Trustee any and all amounts due the Trustee under
Section 6.7 hereunder, and (B) any mandatory sinking fund payments on the dates
on which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series, and if, in any such case, the
Issuer and/or the Guarantors shall also pay or cause to be paid all other sums
payable hereunder by the Issuer and/or the Guarantors with respect to Securities
of such series, then this Indenture and the Guarantees shall cease to be of
further effect with respect to Securities of such series (except as to (i)
rights of registration of transfer and exchange of Securities of such series,
and of Coupons appertaining thereto, and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive
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mandatory sinking fund payments, if any, (iv) the rights (including the
Trustee's rights under Section 10.5), obligations and immunities of the Trustee
hereunder, (v) the rights of the Holders of Securities of such series and
Coupons appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and (vi)
the obligations of the Issuer under Section 3.2) and the Trustee, on demand of
the Issuer accompanied by an Officers' Certificate and an Opinion of Counsel
which complies with Section 11.5 and at the cost and expense of the Issuer and
the Guarantors, shall execute proper instruments acknowledging such satisfaction
of and discharging this Indenture and the Guarantees with respect to such
series; provided that the rights of Holders of the Securities and Coupons to
receive amounts in respect of principal of and interest on the Securities and
Coupons held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Issuer and the Guarantors agree to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture, the Securities of such series or the Guarantees and to make any other
payments due the Trustee under Section 6.7 hereunder.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided in a Board
Resolution, Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 2.3. In addition to discharge of the Indenture and the
Guarantees pursuant to the next preceding paragraph, in the case of any series
of Securities the exact amounts of principal of and interest subsequently due on
which can be determined at the time of making the deposit referred to in clause
(a) below, the Issuer and the Guarantors shall be deemed to have paid and
discharged the entire Indebtedness on all the Securities of such a series and
the Coupons appertaining thereto on the 121st day after the date of the deposit
referred to in clause (a) below, and the provisions of this Indenture with
respect to the Securities of such series and Coupons appertaining thereto and
the Guarantees shall no longer be in effect (except as to (i) rights of
registration of transfer and exchange of Securities of such series, and of
Coupons appertaining thereto, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of
Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration) and remaining rights of the Holders to receive sinking
fund payments, if any, (iv) the rights (including the Trustee's rights under
Section 10.5), obligations and immunities of the Trustee hereunder, (v) the
rights of the Holders of Securities of such series and Coupons appertaining
thereto as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of the Issuer
under Section 3.2) and the Trustee, at the expense of the Issuer and the
Guarantors, shall at the Issuer's and Guarantor's request, execute proper
instruments acknowledging the same, if:
(a) with reference to this provision the Issuer and/or
the Guarantors have irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series and Coupons appertaining
thereto (i) cash in an amount or U.S. Government Obligations, maturing
as to principal and interest at such times
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and in such amounts as will insure the availability of cash, or (ii) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Securities of such series and Coupons
appertaining thereto on the date that such principal or interest is due
and payable and all amounts due the Trustee under Section 6.7 hereunder
and (B) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation
of, or constitute a default under, any agreement or instrument to which
the Issuer or a Guarantor is a party or by which the Issuer or a
Guarantor is bound;
(c) the Issuer and each Guarantor has delivered to the
Trustee an Officers' Certificate or an opinion of independent legal
counsel satisfactory to the Trustee to the effect that Holders of the
Securities of such series and Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit, defeasance and
discharge had not occurred; and
(d) the Issuer and each Guarantor has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating to the
defeasance contemplated by this provision have been complied with, and
the Opinion of Counsel shall also state that such deposit does not
violate applicable law.
Section 10.2 Application by Trustee of Funds Deposited for Payment of
Securities.
Subject to Sections 6.7 and 10.4, all moneys deposited with
the Trustee (or other trustee) pursuant to Section 10.1 shall be held in trust
and applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for the
payment or redemption of which such moneys have been deposited with the Trustee,
of all sums due and to become due thereon for principal and interest; but such
money need not be segregated from other funds except to the extent required by
law.
Section 10.3 Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture and the Guarantees with respect to Securities of any series, all
moneys then held by any paying agent under the provisions of this Indenture with
respect to such series of Securities shall, upon demand of the Issuer or the
Guarantors, be repaid to the Issuer and the Guarantors or paid to the Trustee
and thereupon such paying agent shall be released from all further liability
with respect to such moneys.
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Section 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years.
Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the principal of or interest on any Security of any
series or Coupons attached thereto and not applied but remaining unclaimed for
two years after the date upon which such principal or interest shall have become
due and payable shall, upon the written request of the Issuer or the Guarantors
and unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer and the Guarantors
by the Trustee for such series or such paying agent, and the Holder of the
Securities of such series and of any Coupons appertaining thereto shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer and the Guarantors
for any payment which such Holder may be entitled to collect, and all liability
of the Trustee or any paying agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being
required to make any such repayment with respect to moneys deposited with it for
any payment (a) in respect of Registered Securities of any series, shall at the
expense of the Issuer and the Guarantors, mail by first-class mail to Holders of
such Securities at their addresses as they shall appear on the Security
register, and (b) in respect of Unregistered Securities of any series, shall at
the expense of the Issuer and the Guarantors cause to be published once, in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, notice,
that such moneys remain and that, after a date specified therein, which shall
not be less than 30 days from the date of such mailing or publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer and
the Guarantors.
Section 10.5 Indemnity for U.S. Government Obligations.
The Issuer and the Guarantors shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 10.1 or the principal
or interest received in respect of such obligations.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Stockholders, Officers and Directors of Issuer
or any Guarantor Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, in any Security or in any Guarantee, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Issuer, any Guarantor or the Trustee or of
any successor of any of them, either directly or through the Issuer, any
Guarantor or the Trustee or any successor of any of them, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by
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the Holders thereof and as part of the consideration for the issue of the
Securities and the Coupons appertaining thereto.
Section 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons.
Nothing in this Indenture, the Securities or the Coupons
appertaining thereto or the Guarantees, expressed or implied, shall give or be
construed to give to any Person, firm or corporation, other than the parties
hereto and their successors and the Holders of the Securities or Coupons, if
any, any legal or equitable right, remedy or claim under this Indenture or under
any covenant or provision herein contained, all such covenants and provisions
being for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities or Coupons, if any.
Section 11.3 Successors and Assigns of Issuer and Guarantors Bound by
Indenture.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Issuer and Guarantors shall bind
their successors and assigns, whether so expressed or not.
Section 11.4 Notices and Demands on Issuer, Guarantors, Trustee and Holders
of Securities and Coupons.
Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities or Coupons to or on the Issuer and/or the Guarantors may be given
or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer and the Guarantors is filed by the Issuer with the Trustee) to CBRL
Group, Inc., 000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxxxxxx. Any notice, direction, request or demand by the Issuer, any
Guarantor or any Holder of Securities or Coupons to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made at Bankers Trust Company, Corporate Trust Administrative Services, 0 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administrative
Services.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder entitled thereto, at his last address as it appears in
the Security register. In any case where notice to such Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
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In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
and/or the Guarantors when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 11.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein.
Upon any application or demand by the Issuer or any Guarantor
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer or such Guarantor shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer or any Guarantor may be based, insofar as it relates to legal matters,
upon a certificate or opinion of or representations by counsel, unless such
officer knows that the certificate or opinion or representations with respect to
the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of counsel may be
based, insofar as it relates to factual matters or information with respect to
which is in the possession of the Issuer or any Guarantor, upon the certificate,
statement or opinion of or representations by an officer or officers of the
Issuer or such Guarantor, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer, any Guarantor or counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Issuer or such Guarantor,
unless such officer or counsel, as the case may be, knows that the certificate
or
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opinion or representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee or any Guarantor shall
contain a statement that such firm is independent.
Section 11.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the
Securities of any series or any Coupons appertaining thereto or the date fixed
for redemption or repayment of any such Security or Coupon shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
Section 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
which is required by the Trust Indenture Act of 1939, such required provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act of 1939 that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 11.8 New York Law to Govern.
This Indenture, each Security and Coupon and each Guarantee
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of such State,
except as may otherwise be required by mandatory provisions of law.
Section 11.9 Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
Section 11.10 Effect of Headings.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article.
The provisions of this Article shall be applicable to the
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.3 for Securities of such series.
Section 12.2 Election to Redeem; Notice of Redemption; Partial Redemptions.
The election of the Issuer to redeem any Securities shall be
evidenced by, or pursuant to, a Board Resolution which shall identify the
Securities to be redeemed. In the case of any redemption at the election of the
Issuer of the Securities of any series with the same issue date, interest rate
and stated maturity, the Issuer shall, at least 60 days prior to the redemption
date fixed by the Issuer (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of the principal amount of securities of such
series to be redeemed. Notice of redemption to the Holders of Registered
Securities of any series to be redeemed as a whole or in part at the option of
the Issuer shall be given by mailing notice of such redemption by first-class
mail, postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption to such Holders of Securities of such series at their
last addresses as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Securities to be redeemed as a whole
or in part, who have filed their names and addresses with the Trustee, shall be
given by mailing notice of such redemption, by first-class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed for
redemption, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Issuer, the Trustee
shall make such information available to the Issuer for such purpose). Notice of
redemption to all other Holders of Unregistered Securities shall be published in
an Authorized Newspaper in the Borough of Manhattan, The City of New York, once
in each of three successive calendar weeks, the first publication to be not less
than 30 days nor more than 60 days prior to the date fixed for redemption. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice to the Holder of any
Security of a series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security
of such series.
The notice of redemption to the Trustee and to each such
Holder shall specify the principal amount of each Security of such series held
by such Holder to be redeemed, the date fixed for redemption, the redemption
price, the amount of accrued interest, if any, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities
and, in the case of Securities with Coupons attached thereto, of all Coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof
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to be redeemed will cease to accrue. In case any Security of a series is to be
redeemed in part, only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.3) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less
than all the Outstanding Securities of a series are to be redeemed at the
election of the Issuer, the Issuer will deliver to the Trustee at least 60 days
prior to the date fixed for redemption (unless a shorter notice shall be
satisfactory to the Trustee) an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such restriction has been complied with.
If less than all the Securities of any series with the same
issue date, interest rate and stated maturity are to be redeemed, the Trustee
shall select by lot or in such manner as it shall deem appropriate and fair
(which may provide for the selection for redemption of portions of the principal
amount of Registered Securities of such series), the particular Securities of
such Series to be redeemed. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such series or
any multiple thereof. The Trustee shall promptly notify the Issuer in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
Section 12.3 Payment of Securities Called for Redemption.
If notice of redemption has been given as provided above, the
Securities or portions of Securities specified in such notice shall become due
and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and the unmatured
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Coupons, if any, appertaining thereto shall be void, and, except as provided in
Sections 6.5 and 10.4, such Securities shall cease from and after the date fixed
for redemption to be entitled to any benefit or security under this Indenture,
and the Holders thereof shall have no right in respect of such Securities except
the right to receive the redemption price thereof and unpaid interest to the
date fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3 and
2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, the surrender of such missing Coupon or Coupons
may be waived by the Issuer and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section 12.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption.
Securities shall be excluded from eligibility for selection
for redemption if they are identified by registration and certificate number in
an Officers' Certificate delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
Section 12.5 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by
the terms of the Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of the Securities of any series
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is herein referred to as an "optional sinking fund payment". The date on which a
sinking fund payment is to be made is herein referred to as the "sinking fund
payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (which need not contain the statements required by Section 11.5) (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities of
such series has theretofore been so credited, (c) stating that no defaults in
the payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to deliver
such Officers' Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Issuer shall so request) with
respect to the Securities of any particular series, such cash shall be applied
on the next succeeding sinking
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fund payment date to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 12.2, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers' Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment date
as being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in such Officers'
Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 12.2 (and with the
effect provided in Section 12.3) for the redemption of Securities of such series
in part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of redemption
of Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities; provided that it shall have received from the
Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article V and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the sixteenth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
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ARTICLE XIII
GUARANTEES
Section 13.1 Unconditional Guarantee.
Each Guarantor hereby jointly and severally fully and
unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the
Securities or the obligations of the Issuer or any other Guarantor to the
Holders or the Trustee hereunder or thereunder, that: (a) the principal of,
premium, if any, and interest on the Securities will be duly and punctually paid
in full when due, whether at maturity, upon redemption, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted by
law) interest, if any, on the Securities and all other obligations of the Issuer
and the Guarantors to the Holders or the Trustee hereunder or thereunder
(including, but not limited to, fees, expenses and all other obligations set
forth in Section 6.7) and all other Indenture Obligations will be promptly paid
in full or performed, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Securities or
any of such other Indenture Obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. Failing payment when
due of any amount so guaranteed, or failing performance of any other obligation
of the Issuer to the Holders, for whatever reason, each Guarantor shall be
obligated to pay, or to perform or cause the performance of, the same
immediately. An Event of Default under this Indenture or the Securities shall
constitute an event of default under the Guarantees, and shall entitle the
Holders of Securities to accelerate the obligations of the Guarantors hereunder
in the same manner and to the same extent as the obligations of the Issuer.
Each Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, any release of any other Guarantor,
the recovery of any judgment against the Issuer, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Security, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor.
Each Guarantor hereby waives the benefit of diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest, notice and all demands whatsoever and covenants
that its Guarantee shall not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and its Guarantee. The
Guarantee is a guarantee of payment and not of collection. If any Holder or the
Trustee is required by any court or otherwise to return to the Issuer or to any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Issuer or such Guarantor, any amount paid by the
Issuer or such Guarantor to the Trustee or such Holder, the Guarantee, to the
extent theretofore discharged,
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shall be reinstated in full force and effect. Each Guarantor further agrees
that, as between it, on the one hand, and the Holders of Securities and the
Trustee, on the other hand, (a) subject to this Article XIII, the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article V
hereof for the purposes of the Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby or thereby, and (b) in the event of any acceleration of such
obligations as provided in Article V hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by the Guarantor for the
purpose of its Guarantee.
Section 13.2 Execution and Delivery of Guarantee.
To further evidence the Guarantee set forth in Section 13.1,
each Guarantor hereby agrees that a notation of such Guarantee shall be endorsed
on each Security authenticated and delivered by the Trustee and executed by
either manual or facsimile signature of an officer of each Guarantor.
Each of the Guarantors hereby agrees that its Guarantee set
forth in Section 13.1 shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Guarantee.
If an officer of a Guarantor whose signature is on this
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, such Guarantor's
Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Indenture on behalf of each Guarantor.
Section 13.3 Additional Guarantors.
Any Person that becomes a Subsidiary after the date of this
Indenture shall become a Guarantor by executing and delivering to the Trustee
(a) a supplemental indenture, which subjects such Person to the provisions
(including the representations and warranties) of this Indenture as a Guarantor,
and (b) an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized and executed by such Person and constitutes the legal,
valid and binding obligation of such Person (subject to such customary
assumptions and exceptions as may be acceptable to the Trustee in its reasonable
discretion).
Section 13.4 Release of a Guarantor.
Upon the sale, exchange, transfer or other disposition (by
merger or otherwise), other than a lease, of a Guarantor of all of the capital
stock of such Guarantor or all, or substantially all, the assets of such
Guarantor, to any Person that is not an Affiliate of the Issuer, and which sale
or other disposition is otherwise in compliance with the terms of this
Indenture, such Guarantor shall
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be deemed automatically and unconditionally released and discharged from all
obligations under this Article XIII without any further action required on the
part of the Trustee or any Holder. The Trustee shall deliver an appropriate
instrument evidencing such release upon receipt of a request of the Issuer
accompanied by an Officers' Certificate certifying as to the compliance with
this Section 13.4 and directing the Trustee to execute and deliver such release.
Any Guarantor not so released will remain liable for the full amount of
principal of, premium, if any, and interest on the Securities as provided in
this Article XIII.
Section 13.5 Waiver of Subrogation.
Until this Indenture is discharged and all of the Securities
are discharged and paid in full, each Guarantor hereby irrevocably waives and
agrees not to exercise any claim or other rights which it may now or hereafter
acquire against the Issuer that arise from the existence, payment, performance
or enforcement of the Issuer's obligations under the Securities or this
Indenture and such Guarantor's obligations under its Guarantee and this
Indenture, in any such instance, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, and any
right to participate in any claim or remedy against the Issuer, whether or not
such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Issuer, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and any amounts owing to the Trustee or the Holders of Securities under
the Securities, this Indenture, or any other document or instrument delivered
under or in connection with such agreements or instruments, shall not have been
paid in full, such amount shall have been deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Holders
of the Securities, and shall forthwith be paid to the Trustee for the benefit of
such Holders to be credited and applied to the Securities, whether matured or
unmatured, in accordance with the terms of this Indenture. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section 13.5 is knowingly made in contemplation of such benefits.
Section 13.6 Reliance on Judicial Order or Certificate of Liquidating Agent
Regarding Dissolution, etc. of Guarantors.
Upon any payment or distribution of assets of any Guarantor
referred to in this Article XIII, the Trustee, subject to the provisions of
Section 6.1, and the Holders, shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article
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XIII; provided, however, that the foregoing shall apply only if such court has
been fully apprised of the provisions of this Article XIII.
Section 13.7 Article XIII Applicable to Paying Agents.
In case at any time any paying agent other than the Trustee
shall have been appointed by the Issuer and be then acting hereunder, the term
"Trustee" as used in this Article XIII shall in such case (unless the context
otherwise requires) be construed as extending to and including such paying agent
within its meaning as fully for all intents and purposes as if such paying agent
were named in this Article XIII in addition to or in place of the Trustee.
Section 13.8 No Suspension of Remedies.
Nothing contained in this Article XIII shall limit the right
of the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article V or to pursue any rights or
remedies hereunder or under applicable law.
Section 13.9 Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee
by such Guarantor will not constitute a fraudulent transfer or conveyance for
purposes of bankruptcy law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar Federal or state law. To effectuate the
foregoing intention, the Holders and such Guarantor hereby irrevocably agree
that the obligations of such Guarantor under its Guarantee shall be limited to
the maximum amount which, after giving effect to all other contingent and fixed
liabilities of such Guarantor, and after giving effect to any collections from
or payments made by or on behalf of, any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to its
contribution obligations under this Article XIII, will result in the obligations
of such Guarantor under its Guarantee not constituting such fraudulent transfer
or conveyance.
Section 13.10 Contribution from Other Guarantors.
Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor in a pro
rata amount based on the net assets of each Guarantor, determined in accordance
with GAAP.
Section 13.11 Obligations Reinstated.
The obligations of each Guarantor hereunder shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
payment which would otherwise have reduced the obligations of any Guarantor
hereunder (whether such payment shall have been made by or on behalf of the
Issuer or by or on behalf of a Guarantor) is rescinded or reclaimed from any of
the Holders upon the insolvency, bankruptcy, liquidation or reorganization of
the Issuer or any
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Guarantor or otherwise, all as though such payment had not been made. If demand
for, or acceleration of the time for, payment by the Issuer is stayed upon the
insolvency, bankruptcy, liquidation or reorganization of the Issuer, all such
Indebtedness otherwise subject to demand for payment or acceleration shall
nonetheless be payable by each Guarantor as provided herein.
Section 13.12 No Obligation To Take Action Against the Issuer.
Neither the Trustee nor any other Person shall have any
obligation to enforce or exhaust any rights or remedies or to take any other
steps under any security for the Indenture Obligations or against the Issuer or
any other Person or any property of the Issuer or any other Person before the
Trustee is entitled to demand payment and performance by any or all Guarantors
of their liabilities and obligations under their Guarantees or under this
Indenture.
Section 13.13 Dealing with the Issuer and Others.
The Holders, without releasing, discharging, limiting or
otherwise affecting in whole or in part the obligations and liabilities of any
Guarantor hereunder and without the consent of or notice to any Guarantor, may:
(a) grant time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the Issuer
or any other Person;
(b) take or abstain from taking security or collateral from
the Issuer or from perfecting security or collateral of the Issuer;
(c) release, discharge, compromise, realize, enforce or
otherwise deal with or do any act or thing in respect of (with or without
consideration) any and all collateral, mortgages or other security given by the
Issuer or any third party with respect to the obligations or matters
contemplated by this Indenture or the Securities;
(d) accept compromises or arrangements from the Issuer;
(e) apply all moneys at any time received from the Issuer or
from any security upon such part of the Indenture Obligations as the Holders may
see fit or change any such application in whole or in part from time to time as
the Holders may see fit; and
(f) otherwise deal with, or waive or modify their right to
deal with, the Issuer and all other Persons and any security as the Holders or
the Trustee may see fit.
Section 13.14 Guarantee Forms.
The Guarantees shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board
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Resolution, an Officers' Certificate detailing such establishment) or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Guarantees, as evidenced by their execution of such
Guarantees.
The Guarantees shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Guarantees, as evidenced by their execution of
such Guarantees.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
CBRL GROUP, INC.
By:
-----------------------------------------
Name:
Title:
CRACKER BARREL OLD COUNTRY STORE, INC.
By:
-----------------------------------------
Name:
Title:
XXXXX'X ROADHOUSE, INC.
By:
-----------------------------------------
Name:
Title:
ROCKING CHAIR, INC.
By:
-----------------------------------------
Name:
Title:
CPM MERGER CORPORATION
By:
-----------------------------------------
Name:
Title:
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CBOCS WEST, INC.
By:
-----------------------------------------
Name:
Title:
CBOCS DISTRIBUTION, INC.
By:
-----------------------------------------
Name:
Title:
CBOCS MICHIGAN, INC.
By:
-----------------------------------------
Name:
Title:
CBOCS SIERRA, INC.
By:
-----------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Trustee
By:
-----------------------------------------
Name:
Title:
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EXHIBIT A
List of Guarantors
CRACKER BARREL OLD COUNTRY STORE, INC.
XXXXX'X ROADHOUSE, INC.
ROCKING CHAIR, INC.
CPM MERGER CORPORATION
CBOCS DISTRIBUTION, INC.
CBOCS MICHIGAN, INC.
CBOCS SIERRA, INC.
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