EXHIBIT 4.3
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INTERLINE BRANDS, INC.
A NEW JERSEY CORPORATION
AND
THE BANK OF NEW YORK TRUST COMPANY, N.A.
TRUSTEE
SUBORDINATED DEBT INDENTURE
GUARANTEED TO THE EXTENT SET FORTH HEREIN
BY THE GUARANTORS NAMED HEREIN
DATED AS OF JUNE 23, 2006
INTERLINE BRANDS, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of June 23, 2006
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310(a)(1) 6.09
(a)(2) 6.09
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.08, 6.10
311(a) 6.13
(b) 6.13
(b)(2) 7.03(a), 7.03(b)
312(a) 7.01, 7.02(a)
(b) 7.02(b)
(c) 7.02(c)
313(a) 7.03(a)
(b) 7.03(a)
(c) 7.03(a), 7.03(b)
(d) 7.03(b)
314(a) 7.04
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
315(a) 6.01(a)
(b) 6.02, 7.03(a)
(c) 6.01(b)
(d) 6.01(c)
(d)(1) 6.01(a), 6.01(c)
(d)(2) 6.01(c)
(d)(3) 6.01(c)
(e) 5.14
316(a)(1)(A) 5.12
(a)(1)(B) 5.02, 5.13
(a)(2) Not Applicable
(b) 5.08 (c) 1.04(e)
317(a)(1) 5.03
(a)(2) 5.04
(b) 10.05
318(a) 1.07
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............1
Section 1.01 Definitions................................................1
Section 1.02 Compliance Certificates and Opinions.......................5
Section 1.03 Form of Documents Delivered to Trustee.....................5
Section 1.04 Acts of Holders............................................6
Section 1.05 Notices, Etc.,.............................................7
Section 1.06 Notice to Holders; Waiver..................................7
Section 1.07 Conflict with Trust Indenture Act..........................7
Section 1.08 Effect of Headings and Table of Contents...................7
Section 1.09 Successors and Assigns.....................................7
Section 1.10 Separability Clause........................................7
Section 1.11 Benefits of Indenture......................................7
Section 1.12 Governing Law..............................................7
Section 1.13 Legal Holidays.............................................7
Section 1.14 No Recourse Against Others.................................7
Section 1.15 Judgment Currency..........................................8
Section 1.16 Counterparts...............................................8
ARTICLE 2 SECURITY FORMS......................................................8
Section 2.01 Forms Generally............................................8
Section 2.02 Form of Face of Security...................................8
Section 2.03 Form of Reverse of Security................................9
Section 2.04 Form of Trustee's Certificate of Authentication...........13
Section 2.05 Securities in Global Form.................................13
Section 2.06 Form of Legend for the Securities in Global Form..........13
ARTICLE 3 THE SECURITIES.....................................................13
Section 3.01 Amount Unlimited; Issuable in Series......................13
Section 3.02 Denominations.............................................15
Section 3.03 Execution, Authentication, Delivery and Dating............15
Section 3.04 Temporary Securities......................................16
Section 3.05 Registration, Registration of Transfer and Exchange.......16
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities..........18
Section 3.07 Payment of Interest; Interest Rights Preserved............18
Section 3.08 Persons Deemed Owners.....................................19
Section 3.09 Cancellation..............................................19
Section 3.10 Computation of Interest...................................19
Section 3.11 CUSIP Number..............................................19
Section 3.12 Wire Transfers............................................19
ARTICLE 4 SATISFACTION AND DISCHARGE.........................................19
Section 4.01 Satisfaction and Discharge of Indenture...................19
Section 4.02 Application of Trust Money................................20
Section 4.03 Application to a Specific Series of Securities............20
ARTICLE 5 REMEDIES...........................................................20
Section 5.01 Events of Default.........................................20
Section 5.02 Acceleration of Maturity; Rescission and Annulment........21
Section 5.03 Collection of Indebtedness and Suits for
Enforcement by Trustee....................................21
Section 5.04 Trustee May File Proofs of Claim..........................22
Section 5.05 Trustee May Enforce Claims Without
Possession of Securities..................................22
Section 5.06 Application of Money Collected............................22
Section 5.07 Limitation on Suits.......................................23
Section 5.08 Unconditional Right of Holders to Receive
Principal, Premium and Interest...........................23
Section 5.09 Restoration of Rights and Remedies........................23
Section 5.10 Rights and Remedies Cumulative............................23
Section 5.11 Delay or Omission Not Waiver..............................23
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Section 5.12 Control by Holders........................................23
Section 5.13 Waiver of Past Defaults...................................23
Section 5.14 Undertaking for Costs.....................................24
ARTICLE 6 THE TRUSTEE........................................................24
Section 6.01 Certain Duties and Responsibilities of the Trustee........24
Section 6.02 Notice of Defaults........................................24
Section 6.03 Certain Rights of Trustee.................................24
Section 6.04 Not Responsible for Recitals or Issuance of Securities....25
Section 6.05 May Hold Securities.......................................25
Section 6.06 Money Held in Trust.......................................25
Section 6.07 Compensation and Reimbursement............................25
Section 6.08 Disqualification; Conflicting Interests...................26
Section 6.09 Corporate Trustee Required; Eligibility...................26
Section 6.10 Resignation and Removal; Appointment of Successor.........26
Section 6.11 Acceptance of Appointment by Successor....................27
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business....................................27
Section 6.13 Preferential Collection of Claims Against Company.........27
Section 6.14 Appointment of Authenticating Agent.......................27
Section 6.15 Compliance with Tax Laws..................................28
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..................28
Section 7.01 Company to Furnish Trustee Names and
Addresses of Holders......................................28
Section 7.02 Preservation of Information; Communications to Holders....29
Section 7.03 Reports by Trustee........................................29
Section 7.04 Reports by Company........................................29
ARTICLE 8 CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER.....................30
Section 8.01 When Company May Merge, Etc...............................30
Section 8.02 Opinion of Counsel........................................30
Section 8.03 Successor Corporation Substituted.........................30
ARTICLE 9 SUPPLEMENTAL INDENTURES............................................30
Section 9.01 Supplemental Indentures Without Consent of Holders........30
Section 9.02 Supplemental Indentures with Consent of Holders...........31
Section 9.03 Execution of Supplemental Indentures......................32
Section 9.04 Effect of Supplemental Indentures.........................32
Section 9.05 Conformity with Trust Indenture Act.......................32
Section 9.06 Reference in Securities to Supplemental Indentures........32
Section 9.07 Subordination Unimpaired..................................32
ARTICLE 10 COVENANTS.........................................................32
Section 10.01 Payments of Securities....................................32
Section 10.02 Maintenance of Office or Agency...........................32
Section 10.03 Compliance Certificates...................................32
Section 10.04 Waiver of Stay, Extension or Usury Laws...................33
Section 10.05 Money for Securities Payments to Be Held in Trust.........33
Section 10.06 Waiver of Certain Covenants...............................33
ARTICLE 11 REDEMPTION OF SECURITIES..........................................34
Section 11.01 Applicability of Article..................................34
Section 11.02 Election to Redeem; Notice to Trustee.....................34
Section 11.03 Selection by Trustee of Securities to Be Redeemed.........34
Section 11.04 Notice of Redemption......................................34
Section 11.05 Deposit of Redemption Price...............................34
Section 11.06 Securities Payable on Redemption Date.....................35
Section 11.07 Securities Redeemed in Part...............................35
ARTICLE 12 SINKING FUNDS.....................................................35
Section 12.01 Applicability of Article..................................35
Section 12.02 Satisfaction of Sinking Fund Payments with Securities.....35
Section 12.03 Redemption of Securities for Sinking Fund.................35
ARTICLE 13 DEFEASANCE AND COVENANT DEFEASANCE................................35
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Section 13.01 Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.........................35
Section 13.02 Defeasance and Discharge..................................36
Section 13.03 Covenant Defeasance.......................................36
Section 13.04 Conditions to Defeasance or Covenant Defeasance...........36
Section 13.05 Deposited Money and Government Obligations To Be
Held in Trust.............................................37
Section 13.06 Reinstatement.............................................37
ARTICLE 14 SUBORDINATION.....................................................37
Section 14.01 Subordination.............................................37
Section 14.02 Priority of Senior Debt...................................37
Section 14.03 Payments upon Bankruptcy..................................38
Section 14.04 Subrogation; Rights not Impaired..........................38
Section 14.05 Authorization of Trustee..................................39
Section 14.06 Notice of the Trustee.....................................39
Section 14.07 Holders of Senior Debt; Trustee's Obligations.............39
Section 14.08 Actions by Holders of Senior Debt.........................39
Section 14.09 Paying Agent..............................................40
Section 14.10 Monies Held in Trust......................................40
ARTICLE 15 GUARANTEES........................................................40
Section 15.01 Guarantee.................................................40
iv
INDENTURE, dated as of June 23, 2006, between INTERLINE BRANDS, INC.,
a New Jersey corporation (herein called the "COMPANY"), the GUARANTORS listed
on Schedule 1 hereto (herein called the "THE BANK OF NEW YORK TRUST COMPANY,
N.A., as Trustee (herein called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and ratable benefit of the Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, or defined by
Commission rule and not otherwise defined herein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
(4) the word "INCLUDING" (and with correlative meaning
"INCLUDE") means including, without limiting the generality of, any description
preceding such term; and
(5) the words "HEREIN," "HEREOF " and "HEREUNDER" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"ACT," when used with respect to any Holder, has the meaning specified
in Section 1.04.
"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 purposes of this definition, "CONTROL"
(including, with correlative meanings, the terms "CONTROLLING," "CONTROLLED BY"
and "UNDER COMMON CONTROL with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" shall have correlative meanings.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors of the Company;
provided, however, that when the context refers to actions or resolutions of
the Board of Directors, then the term "BOARD OF DIRECTORS" shall also mean any
duly authorized committee of the Board of Directors of the Company authorized
to act with respect to any particular matter to exercise the power of the Board
of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities of
any series, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or regulation to close.
1
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations, warrants, rights, options or other equivalents
(however designated) of capital stock or any other equity interest of such
Person, including each class of common stock and preferred stock.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation or other entity shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by any two Officers, at least one of whom
must be its Chairman of the Board, its Chief Executive Officer, its President,
its Chief Financial Officer, its Chief Accounting Officer, its Treasurer, an
Assistant Treasurer or its Controller, and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at The Bank of New
York Trust Company, N.A., 00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, XX 00000;
Attn: Corporate Trust Administration, Fax: 000-000-0000, Tel: 000-000-0000.
"COVENANT DEFEASANCE" has the meaning specified in Section 13.03.
"CURRENCY UNIT" or "CURRENCY UNITS" shall mean any composite currency.
"CUSTODIAN" means any receiver, custodian, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEBT" means, with respect to any Person at any date of determination
(without duplication), (i) all obligations of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, including obligations incurred in connection with
the acquisition of property, assets or businesses, (iii) all obligations of
such Person in respect of letters of credit or bankers' acceptances or other
similar instruments (or reimbursement obligations thereto) issued on the
account of such Person, (iv) all obligations of such Person issued or assumed
as the deferred purchase price of property or services, but excluding trade
accounts payable or accrued liabilities arising in the ordinary course of
business in connection with acquisition of goods or services, (v) all
obligations of such Person as lessee under capitalized leases, (vi) all Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person; provided that, for purposes of determining the
amount of any Debt of the type described in this clause (vi), if recourse with
respect to such Debt is limited to such asset, the amount of such Debt shall be
limited to the lesser of the fair market value of such asset or the amount of
such Debt, (vii) all Debt and dividends of others guaranteed by such Person to
the extent such Debt and dividends are guaranteed by such Person, and (viii) to
the extent not otherwise included in this definition, all obligations of such
Person for claims in respect of derivative products, including interest rate,
foreign exchange rate and commodity prices, forward contracts, options, swaps,
collars and similar arrangements.
"DEFAULTED INTEREST" has the meaning specified in Section 3.07.
"DEFEASANCE" has the meaning specified in Section 13.02.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.01 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" shall mean the Depositary
with respect to the Securities of that series.
"DOLLARS" and "$" means lawful money of the United States of America.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations promulgated thereunder.
"GAAP" means such accounting principles as are generally accepted in
the United States of America which are in effect on the date hereof.
"GUARANTEE" means the guarantee by any Guarantor of the obligations
under this Indenture.
2
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Security
is registered in the Security Register.
"INDEBTEDNESS" means, with respect to any Person (without duplication
for indebtedness or other obligations of such Person), any indebtedness of such
Person for money borrowed, whether incurred, assumed or guaranteed, and
including obligations under capitalized leases.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated hereunder.
"INTEREST," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"INTEREST PAYMENT DATE," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"JUDGMENT CURRENCY" has the meaning specified in Section 1.15.
"LIEN" means, with respect to any property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
property. For purposes of this Indenture, the Company shall be deemed to own
subject to a Lien any property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such property.
"MATURITY," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"NEW YORK BANKING DAY" has the meaning specified in Section 1.15.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
any Vice President, the Chief Financial Officer, the Chief Accounting Officer,
the Treasurer, any Assistant Treasurer, the Controller, any Assistant
Controller, the Secretary or any Assistant Secretary of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed by any two Officers
of the Company, at least one of whom must be its Chief Executive Officer, its
President, its Chief Financial Officer, its Chief Accounting Officer, its
Treasurer or its Controller, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be reasonably acceptable
to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which 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 5.02.
"OUTSTANDING," when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment
or redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor reasonably satisfactory to the
Trustee has been made;
(iii) Securities which have been paid as provided herein
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
reasonably satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations of the Company;
and
(iv) Securities which have been defeased pursuant to
Section 13.02;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (a) the principal amount of any Original Issue Discount Security
3
that shall be deemed to be Outstanding for such purposes shall be that portion
of the principal amount thereof that could be declared to be due and payable
upon the occurrence of an Event of Default and the continuation thereof
pursuant to the terms of such Original Issue Discount Security as of the date
of such determination, (b) the principal amount of a Security denominated in
one or more foreign currencies or currency units shall be the dollar
equivalent, determined in the manner provided as contemplated by Section 3.01
on the date of original issuance of such Security, of the principal amount (or,
in the case of an Original Issue Discount Security, the dollar equivalent on
the date of original issuance of such Security of the amount determined as
provided in (a) above) of such Security, and (c) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be 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 so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company. The Company may act as Paying Agent with respect to any Securities
issued hereunder.
"PERSON" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE," when used with respect to any Security of any
series to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"REDEMPTION PRICE," when used with respect to any Security of any
series to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"REGISTERED SECURITY" means any Security issued hereunder and
registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.01.
"REQUIRED CURRENCY" has the meaning specified in Section 1.15.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means
any officer of the Trustee assigned to administer corporate trust matters and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.05.
"SENIOR DEBT" means the principal of (and premium, if any) and
interest on all Debt of the Company whether created, incurred or assumed
before, on or after the date of this Indenture; provided that such Senior Debt
shall not include any Debt of the Company which by the terms of the instrument
creating or evidencing the same such Debt is specifically designated as being
subordinated to or pari passu with the Securities.
This definition may be modified or superseded in a manner as
contemplated by Section 3.01.
"SIGNIFICANT SUBSIDIARY" of a Person has the meaning ascribed to such
term in Rule 1.02(w) of Regulation S-X under the Securities Act of 1933, as
amended.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
4
"SUBSIDIARY" means, with respect to any Person:
(1) any corporation, association or other business
entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of such Person
or (b) the only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall 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
Securities of that series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally guaranteed by the
full faith and credit of the United States of America which, in either case,
are not callable or redeemable at the option of the issuer thereof or otherwise
subject to prepayment, and shall also include a depository receipt issued by a
New York Clearing House bank or trust company as custodian with respect to any
such U.S. Government Obligation, or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
held by the custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
"VICE PRESIDENT," when used with respect to the Company 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 "vice president."
"VOTING STOCK" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
Section 1.02 Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, 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, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer actually knows that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
5
opinion of, or representations by, an Officer or Officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel actually knows that the
certificate or opinion or representations with respect to such matters are
erroneous.
Any certificate, statement or opinion of an Officer of the Company or
of 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 Company, unless such Officer or counsel, as
the case may be, actually knows that the certificate or opinion or
representations with respect to the accounting matters upon which his or her
certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04 Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agents
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 and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "ACT" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 6.01) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be
proved by the Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the immediately following
paragraph. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date; provided that
no such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
(f) The Trustee shall set a record date, which shall not
be more than 15 days prior to the date of commencement of solicitation of such
action contemplated by this section 1.04(f), for the purpose of determining the
Holders of Securities of any series entitled to join in the giving or making of
(i) any Notice of Default, (ii) any declaration of acceleration referred to in
Section 5.02, (iii) any direction referred to in Section 5.12, (iv) any request
to institute proceedings referred to in Section 5.07(2) or (v) any waiver of
past defaults pursuant to Section 5.13, in each case with respect to Securities
of such series. If such a record date is fixed pursuant to this paragraph, the
relevant action may be taken or given before or after such record date, but
only the Holders of record at the close of business on such record date shall
be deemed to be holders of Securities of a series for the purpose of
determining whether Holders of the requisite proportion of Outstanding
Securities of such series have authorized or agreed or consented to such
action, and for that purpose the Outstanding Securities of such series shall be
computed as of such record date; provided that no such action by Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after
the record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has been set pursuant to this paragraph (whereupon the record date previously
set shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company's reasonable expense, shall cause notice of such record date and the
proposed action by Holders to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
1.06.
6
Section 1.05 Notices, Etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing and mailed first-class postage prepaid, to or with the Trustee at The
Bank of New York Trust Company, N.A., 00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, XX
00000; Attn: Corporate Trust Administration, Fax: 000-000-0000, Tel:
000-000-0000; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at Interline Brands, Inc., 000 Xxxx Xxx Xxxxxx, Xxxxxxxxxxxx,
XX 00000, Attention: Secretary, or at any other address previously furnished in
writing to the Trustee by the Company.
Section 1.06 Notice to Holders; Waiver. Where this Indenture or
any Security provides for notice to Holders of any event, such notice shall be
deemed sufficiently given (unless otherwise herein or in such Security
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to 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 or the validity of
the proceedings to which such notice relates.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Where this Indenture or any Security 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.
Section 1.07 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included or deemed included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, such provision of the
Trust Indenture Act shall be deemed to apply to this Indenture as so modified
or shall be excluded, as the case may be.
Section 1.08 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.09 Successors and Assigns. All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
Section 1.10 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture. Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Holders and to the extent
specifically set forth herein the holders of Senior Debt, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 1.12 Governing Law. This Indenture and the Securities
shall be governed by and construed in accordance with the laws (other than the
choice of law provisions) of the State of New York.
Section 1.13 Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day or on such other day as may be set out in the Officers' Certificate
pursuant to Section 3.01 at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be, provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be, if payment is made on such next
succeeding Business Day or other day set out in such Officers' Certificate.
Section 1.14 No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company or any Guarantor (other than a
stockholder which itself is the Company or a Guarantor of the Securities) shall
not have any liability for any obligations of the Company or any Guarantor
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Securityholder, by
7
accepting a Security, waives and releases all such liability. Such waivers and
releases are part of the consideration for the issuance of the Securities.
Section 1.15 Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of, or premium or interest, if any, on
the Securities of any series (the "REQUIRED CURRENCY") into a currency in which
a judgment will be rendered (the "JUDGMENT CURRENCY"), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures
the Trustee could purchase in The City of New York the Required Currency with
the Judgment Currency on the New York Banking Day preceding that on which a
final unappealable judgment is given and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be discharged
or satisfied by any tender, or any recovery pursuant to any judgment (whether
or not entered in accordance with subsection (a)), in any currency other than
the Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "NEW YORK BANKING DAY" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
Section 1.16 Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
ARTICLE 2
SECURITY FORMS
Section 2.01 Forms Generally. The Securities of each series shall
be in substantially the form set forth in this Article, or in such other form
as shall be established by or pursuant to a Board Resolution 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 such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the Officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.03
for the authentication and delivery of such Securities.
The definitive Securities 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, as evidenced by their
execution of such Securities.
Section 2.02 Form of Face of Security.
INTERLINE BRANDS, INC.
No. ____________ [$]_____________
Interline Brands, Inc., a corporation duly organized and existing
under the laws of New Jersey (herein called the "COMPANY," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _______________, or registered
assigns, the principal sum of _______________ [Dollars] on _______________ [if
the Security is to bear interest prior to Maturity, insert-- and to pay
interest thereon from _______________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
_______________ and _______________ in each year [if other than semi-annual
payments, insert frequency of payments and payment dates], commencing
_____________________, at [if the Security is to bear interest at a fixed rate,
insert-- the rate of _____% per annum], [if the Security is to bear interest at
a variable or floating rate and if determined with reference to an index, refer
to description of index below] until the principal hereof is paid or made
available for payment [if applicable insert--, and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of _____%
per annum on any overdue principal and premium and on any overdue installment
of interest]. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the __________ or __________ (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture].
8
[If the Securities are floating or adjustable rate securities with
respect to which the principal of or any premium or interest may be determined
with reference to an index, insert the text of the floating or adjustable rate
provision.]
[If the Security is not to bear interest prior to Maturity, insert--
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of _____% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of _____% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in _______________, in
dollars [if applicable, insert--; provided, however, that at the option of the
Company, payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register].
[If applicable, insert-- So long as all of the Securities of this
series are represented by Securities in global form, the principal of, premium,
if any, and interest, if any, on this global Security shall be paid in same day
funds to the Depositary, or to such name or entity as is requested by an
authorized representative of the Depositary. If at any time the Securities of
this series are no longer represented by global Securities and are issued in
definitive certificated form, then the principal of, premium, if any, and
interest, if any, on each certificated Security at Maturity shall be paid in
same day funds to the Holder upon surrender of such certificated Security at
the Corporate Trust Office of the Trustee, or at such other place or places as
may be designated in or pursuant to the Indenture, provided that such
certificated Security is surrendered to the Trustee, or at such other place or
places as may be designated in or pursuant to the Indenture, provided that such
certificated Security is surrendered to the Trustee, acting as Paying Agent, in
time for the Paying Agent to make such payments in such funds in accordance
with its normal procedures. Payments of interest with respect to such
certificated Securities other than at Maturity may, at the option of the
Company, be made by check mailed to the address of the Person entitled thereto
as it appears on the Security Register on the relevant Regular or Special
Record Date or by wire transfer in same day funds to such account as may have
been appropriately designated to the Paying Agent by such Person in writing not
later than such relevant Regular or Special Record Date.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
INTERLINE BRANDS, INC.
BY: ___________________________________
DATE: _______________________, 200__
Section 2.03 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "SECURITIES"), issued and to be issued in one or
more series under an Indenture, dated as of June 23, 2006 (herein called the
"INDENTURE"), between the Company and ____________________, as Trustee (herein
called the "TRUSTEE," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$__________].
[-- The Securities of this series are subject to redemption upon not
less than 30 nor more than 60 days' notice by first class mail, [if applicable,
insert-- (1) on __________ in any year commencing with the year __________ and
ending with the year __________ through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at
any time [on or after __________, _____], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount):
If redeemed [on or before _______________, _____%, and if redeemed]
during the 12-month period beginning _______________ of the years indicated,
9
REDEMPTION
YEAR PRICE
---- -----
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert-- (whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by first class
mail`, (1) on _______________ in any year commencing with the year __________
and ending with the year __________ through operation of the sinking fund for
this series at the Redemption Prices for redemption through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below, and (2) at any time [on or after __________], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below:
If redeemed during a 12-month period beginning _________________ of
the years indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE THAN
THROUGH OPERATION OF THE SINKING THROUGH OPERATION OF THE
FUND SINKING FUND YEAR
---- ------------ ----
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
__________, redeem any Securities of this series as contemplated by [clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than _____% per annum.]
[The sinking fund for this series provides for the redemption on
__________ in each year beginning with the year _____ and ending with the year
_____ of [not less than] $_______________ [("MANDATORY SINKING FUND") and not
more than $____________] aggregate principal amount of Securities of this
series.] [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made--in the inverse order in which they become due.]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert--
If any Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert-- If
an Event of Default with respect to Securities of this series shall occur and
be continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal --insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.]
[This Security is subject to defeasance and covenant defeasance as
described in the Indenture [if applicable, insert -- and the supplemental
indenture].]
[This Security is subject to satisfaction and discharge as provided in
the Indenture [if applicable, insert -- and the supplemental indenture].]
[This Security is subject to subordination as provided in the Indenture
[if applicable, insert -- and the supplemental indenture].]
10
The Indenture may be modified by the Company and the Trustee without
consent of any Holder with respect to certain matters as described in the
Indenture. In addition, the Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall bind such Holder and all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any)
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same Stated Maturity
and aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of [$1,000] and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture imposes certain limitations on the ability of the
Company to, among other things, merge or consolidate with any other Person or
sell, assign, transfer or lease all or substantially all of its properties or
assets [If other covenants are applicable pursuant to the provisions of Section
3.01, insert here]. All such covenants and limitations are subject to a number
of important qualifications and exceptions. The Company must report
periodically to the Trustee on compliance with the covenants in the Indenture.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under this
Security or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder, by accepting a Security,
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Security.
[If applicable, insert -- A director, officer, employee or
stockholder, as such, of any Guarantor shall not have any liability for any
obligations of the Company or such Guarantor under this Security or the
Indenture [if applicable, insert -- or the supplemental indenture] or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder, by accepting a Security, waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of this Security.]
[If applicable, insert -- This Security will be entitled to the
benefits of certain Guarantees made for the benefit of the Holders. Reference
is hereby made to the Indenture and the supplemental indenture for a statement
of the respective rights, limitations of rights, duties and obligations
thereunder of the Guarantors, if any, the Trustee and the Holders.]
[If applicable, insert-- Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures ("CUSIP"), the
Company has caused CUSIP numbers to be printed on the Securities of this series
as a convenience to the Holders of the Securities of this series. No
representation is made as to the correctness or accuracy of such numbers as
printed on the Securities of this series and reliance may be placed only on the
other identification numbers printed hereon.]
11
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
____________________________________________________
(INSERT ASSIGNEE'S SOCIAL SECURITY OR TAX I.D. NUMBER)
____________________________________________________
____________________________________________________
(PRINT OR TYPE ASSIGNEE'S NAME, ADDRESS AND ZIP CODE)
and irrevocably appoint ___________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Dated: __________ Your Signature: ____________________________________
(Sign exactly as your name appears on
the other side of this Security)
Signature Guaranty: _______________________________________________________
[Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Transfer Agent, which requirements will include
membership or participation in the Medallion Stamp
Program or such other "signature guarantee program"
as may be determined by the Transfer Agent in addition
to, or in substitution for, the Medallion Stamp Program,
all in accordance with the Exchange Act.]
Social Security Number or
Taxpayer Identification Number: ___________________________________________
12
Section 2.04 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
Dated: _______________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
____________________________________
As Trustee
By: ________________________________
Authorized Signatory
Section 2.05 Securities in Global Form. If Securities of or
within a series are issuable in whole or in part in global form, then any such
Security of such series may provide that it shall represent the aggregate or a
specified amount of the Outstanding Securities of such series from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be reduced
or increased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, or changes in
the rights of Holders, of Outstanding Securities represented thereby shall be
made in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.03 or Section 3.04. Subject to the provisions of
Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.03 or 3.04
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.03 shall apply to
any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby.
Notwithstanding the provisions of Sections 2.01 and 3.07, unless
otherwise specified as contemplated by Section 3.01, payment of principal of
and premium, if any, and interest on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Section 2.06 Form of Legend for the Securities in Global Form.
Any Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form, or in such other form as may be
necessary or appropriate to reflect the arrangements with or to comply with the
requirements of any Depositary:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN CERTIFICATED FORM IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A 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."
ARTICLE 3
THE SECURITIES
Section 3.01 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 from time to time in one or more series.
Prior to the issuance of Securities of any series, there shall be established
in or pursuant to (i) a Board Resolution, (ii) action taken pursuant to a Board
Resolution and (subject to Section 3.03) set forth, or determined in the manner
provided, in an Officers' Certificate, or (iii) one or more indentures
supplemental hereto:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other Securities);
13
(2) the purchase price, denomination and any limit upon
the aggregate principal amount of the Securities of the series which 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 Sections 3.04,
3.05, 3.06, 9.06 or 11.07);
(3) the date or dates on which the principal of and
premium, if any, on the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method of calculating such rate or
rates of interest, the date or dates from which such interest shall accrue or
the method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable and the Regular
Record Date, if any, for the interest payable on any Interest Payment Date;
(5) the place or places where the principal of, premium,
if any, and interest, if any, on Securities of the series shall be payable;
(6) the place or places where the Securities may be
exchanged or transferred;
(7) the period or periods within which, the price or
prices at which, the currency or currencies (including currency unit or units)
in which, and the other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company, and,
if other than as provided in Section 11.03, the manner in which the particular
Securities of such series (if less than all Securities of such series are to be
redeemed) are to be selected for redemption;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series in whole or in part pursuant to any sinking
fund or analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which, the
price or prices at which, and the other terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if other than U.S. dollars, the currency or
currencies (including currency unit or units) in which payments of principal
of, premium, if any, and interest on the Securities of the series shall or may
by payable, or in which the Securities of the series shall be denominated, and
the particular provisions applicable thereto;
(11) if the payments of principal of, premium, if any, or
interest on the Securities of the series are to be made, at the election of the
Company or a Holder, in a currency or currencies (including currency unit or
units) other than that in which such Securities are denominated or designated
to be payable, the currency or currencies (including currency unit or units) in
which such payments are to be made, the terms and conditions of such payments
and the manner in which the exchange rate with respect to such payments shall
be determined, and the particular provisions applicable thereto;
(12) if the amount of payments of principal of, premium,
if any, and interest on the Securities of the series shall be determined with
reference to an index, formula or other method (which index, formula or method
may be based, without limitation, on a currency or currencies (including
currency unit or units) other than that in which the Securities of the series
are denominated or designated to be payable), the index, formula or other
method by which such amounts shall be determined;
(13) 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 pursuant to
Section 5.02 or the method by which such portion shall be determined;
(14) any modifications of or additions to the Events of
Default or the covenants of the Company set forth herein with respect to
Securities of the series and whether and the conditions under which the Holders
of the Securities of the series may waive any such Event of Default or
compliance with any such covenant relating to the Securities of such series;
(15) if either or both of Section 13.02 and Section 13.03
shall be inapplicable, in whole or in part, to the Securities of the series
(provided that if no such inapplicability shall be specified, then both Section
13.02 and Section 13.03 shall be applicable to the Securities of the series)
and any modification to either such section as it relates to such series of
Securities;
(16) if other than the Trustee, the identity of the
Registrar and any Paying Agent;
(17) if the Securities of the series shall be issued in
whole or in part in global form, (i) the Depositary for such global Securities,
(ii) the form of any legend in addition to or in lieu of that in Section 2.06
which shall be borne by such global Security, (iii) whether beneficial owners
of interests in any Securities of the series in global form may exchange such
interests for certificated Securities of such series and of like tenor of any
authorized form and denomination, and (iv) if other than as provided in Section
3.05, the circumstances under which any such exchange may occur;
14
(18) if the Holders of the Securities of the series may
convert or exchange the Securities of the series into or for securities of the
Company or of other entities or other property (or the cash value thereof), the
specific terms of and period during which such conversion or exchange may be
made;
(19) Securities of the series shall have the benefits of
any Guarantee and, if so, the identity of the Guarantor or Guarantors and the
terms and provisions applicable to any such Guarantee;
(20) any provisions for the satisfaction and discharge of
the Securities of the series, including provisions in addition to or modifying
the provisions of Article 4 as they pertain to Securities of the series;
(21) any addition to or change in the covenants set forth
in Article 10 which applies to Securities of the series;
(22) the subordination of the Securities of such series
to other Indebtedness of the Company, including without limitation, the
Securities of any other series; and
(23) any other terms of the series, including any terms
which may be required by or advisable under the laws of the United States of
America or regulations thereunder or advisable (as determined by the Company)
in connection with the marketing of Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided (i) by a
Board Resolution, (ii) by action taken pursuant to a Board Resolution and
(subject to Section 3.03) set forth, or determined in the manner provided, in
an Officers' Certificate or (iii) in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication
and delivery thereof.
Section 3.02 Denominations. The Securities of each series shall
be issuable in registered form without coupons in such denominations as shall
be specified as contemplated by Section 3.01. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple
thereof.
Section 3.03 Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Chief Executive Officer, its President, its Chief Financial Officer,
or its Chief Accounting Officer attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile. 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.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and make such Securities
available for delivery. If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 2.01 and 3.01, 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
Sections 315(a) through (d) of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating (subject to customary
assumptions, conditions and exceptions):
(a) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by Section 3.01,
that such terms have been established in conformity with the provisions of this
Indenture; and
(b) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, except to the extent enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws affecting the enforcement of creditors' rights generally and
by the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
If such terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
15
which is not reasonably acceptable to the Trustee, or in the written opinion of
counsel to the Trustee (which counsel may be an employee of the Trustee) such
authentication may not lawfully be made or would involve the Trustee in
personal liability.
Notwithstanding the provisions of Section 3.01 and of the immediately
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 the Officers' Certificate otherwise required pursuant to Section 3.01 or
the Company Order and Opinion of Counsel otherwise required pursuant to the
second 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
authentication upon original issuance of the first Security of such series to
be issued.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more global Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
the authentication and delivery of such series, authenticate and deliver one or
more Securities of such series in global form that (i) shall be in an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Security or Securities in global form,
(ii) shall be registered in the name of the Depositary for such Security or
Securities in global form or its nominee, and (iii) shall be made available for
delivery by the Trustee to such Depositary or pursuant to such Depositary's
instruction.
The Trustee shall have no responsibility to determine if the
Depositary is so registered. Each Depositary shall enter into an agreement with
the Trustee and the Company governing the respective duties and rights of such
Depositary, the Company and the Trustee with regard to Securities issued in
global form.
Unless otherwise provided for in the form of Security, each Security
shall be dated the date of its authentication.
No Security shall be entitled to any benefits under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or an Authenticating Agent by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
Section 3.04 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and make available for delivery, temporary
Securities of such series which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
In the case of Securities of any series, such temporary Securities may
be in global form, representing all or a portion of the Outstanding Securities
of such series.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions thereof), if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor. Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Section 3.05 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency to be maintained by the Company in accordance with
Section 10.02 in a Place of Payment a register (the register maintained in such
office and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "SECURITY REGISTER") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of registration of
transfers of Securities. The Trustee is hereby appointed "SECURITY REGISTRAR"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and Stated Maturity.
16
At the option of the Holder, Securities of any series (except a
Security in global form) may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount and Stated Maturity, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Securities which the Holder making the exchange is
entitled to receive.
Each Security issued in global form authenticated under this Indenture
shall be registered in the name of the Depositary designated for such series or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Security issued in global form shall
constitute a single Security for all purposes of this Indenture.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in certificated form in the
circumstances described below, a Security in global form 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 the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or defaults in the performance of its duties as
Depositary or it at any time the Depositary for the Securities of such series
shall no longer be eligible to perform such duties, the Company shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's selection pursuant to Section 3.01(17)
shall no longer be effective with respect to the Securities of such series and
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities of such series of
like tenor, shall authenticate and deliver Securities of such series of like
tenor in certificated form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the Security or Securities of
such series of like tenor in global form in exchange for such Security or
Securities in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series may surrender a Security
in global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certified Security or Securities of the same series of like tenor, of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Security in global form; and
(ii) to such Depositary a new Security in global form of
like tenor in a denomination equal to the difference, if any, between the
principal amount of the surrendered Security in global form and the aggregate
principal amount of certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee.
Securities issued in exchange for a Security in global form pursuant
to this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
17
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (i) to issue,
register the transfer of or exchange Securities of such series during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of that series selected for redemption under
Section 11.03 and ending at the close of business on the day of such mailing,
or (ii) to register the transfer of or exchange any Security so selected for
redemption, in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities. If
any mutilated Security is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Security of such series and the date of the proposed payment (which shall
be not less than 25 days after the receipt by the Trustee of such notice,
unless such Trustee shall consent to an earlier date), and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements reasonably satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the reasonable expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
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(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause (2), such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.08 Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving
payment of principal of, premium, if any, and (subject to Sections 3.05 and
3.07) interest on such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interest of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Security in global form or impair, as between such
Depositary and owners of beneficial interests in such Security in global form,
the operation of customary practices governing the exercise of the right of
such Depositary (or its nominee) as holder of such Security in global form.
Section 3.09 Cancellation. All Securities surrendered for
payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities shall
be held by the Trustee and may be destroyed (and, if so destroyed,
certification of their destruction shall be delivered to the Company, unless,
by a Company Order, the Company shall direct that canceled Securities be
returned to it).
Section 3.10 Computation of Interest. Except as otherwise
specified as contemplated by Section 3.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
year of twelve 30-day months.
Section 3.11 CUSIP Number. The Company in issuing Securities of
any series may use a "CUSIP" number, and if so, the Trustee may use the CUSIP
number in notices of redemption or exchange as a convenience to Holders of such
series; provided, that any such notice may state that no representation is made
as to the correctness or accuracy of the CUSIP number printed on the notice or
on the Securities of such series, and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the CUSIP number of any
series of Securities.
Section 3.12 Wire Transfers. Notwithstanding any other provision
to the contrary in this Indenture, the Company may make any payment of moneys
required to be deposited with the Trustee on account of principal of, or
premium, if any, or interest on the Securities (whether pursuant to optional or
mandatory redemption payments, interest payments or otherwise) by wire transfer
of immediately available funds to an account designated by the Trustee on or
before the date and time such moneys are to be paid to the Holders of the
Securities in accordance with the terms hereof.
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities and replacement of
such Securities which may have been lost, stolen or mutilated as herein
expressly provided for or in the form of Security for such series), when the
Trustee, upon Company Request and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either (a) all Securities theretofore authenticated
and delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.06 and
(ii) Securities for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 10.05) have been
delivered to the Trustee for cancellation; or (b) all such Securities not
theretofore delivered to the Trustee for cancellation (i) have become due and
payable, or (ii) will become due and payable at their Stated Maturity within
one year, or (iii) are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the giving of notice of
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redemption by the Trustee in the name, and at the reasonable expense, of the
Company, and the Company, in the case of (b)(i), (ii) or (iii) above, has
deposited with the Trustee as trust funds in trust for the purpose an amount,
in the currency or currencies or currency unit or units in which the Securities
of such series are payable, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest to the date of such
deposit (in the case of Securities which have become due and payable) or the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with; and
(4) no event or condition shall exist on the date of
such deposit that, pursuant to the provisions of Section 14.03, would prevent
the Company from making payments of the principal of or interest on the
Securities of such series on the date of such deposit.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations
of the Company to any Authenticating Agent under Section 6.14 and, if money
shall have been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.05 shall survive.
Section 4.02 Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.05, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the extent required by
law.
Section 4.03 Application to a Specific Series of Securities. The
Company may elect to satisfy and discharge its obligations with respect to a
specific series of Securities under the Indenture by complying with the terms
of Article 4. If the Company makes such election, (a) the terms of Section 4.01
and 4.02 shall apply only to the specific series of Securities and the terms of
the Indenture as it relates to such series of Securities and (b) the other
Securities issued hereunder and the Indenture as it relates to such other
Securities shall remain in full force and effect.
ARTICLE 5
REMEDIES
Section 5.01 Events of Default. Except as otherwise specified as
contemplated by Section 3.01 for Securities of a series, "EVENT OF DEFAULT,"
wherever used herein with respect to Securities of any series, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or to be effected by reason of Article 14
hereof or 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):
(1) the Company defaults in the payment of interest on
any Security of that series when such interest becomes due and payable and the
default continues for a period of 30 days; or
(2) the Company defaults in the payment of the principal
of, or premium, if any, on any Security of that series when the same becomes
due and payable at Maturity or on redemption or otherwise; or
(3) the Company fails to deposit any sinking fund
payment, for five days after it becomes due by the terms of a Security of that
series; or
(4) the Company fails to observe or perform in any
material respect any of its other covenants, agreements or warranties in the
Securities of that series or this Indenture (other than a covenant, agreement
or warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and the failure to observe or perform continues for the period and
after the notice specified in the last paragraph of this Section; or
(5) an event of default, as defined in any mortgage,
indenture, or instrument under which there may be issued, or by which there may
be secured or evidenced, any Indebtedness of the Company (including Securities
of another series) (other than the Securities of such series) (whether such
Indebtedness now exists or shall hereafter be created or incurred) shall occur,
which event of default (i) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness at final maturity after the
expiration of the grace period provided in such Indebtedness on the date of
such event of default, and (ii) results in Indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise become
due and payable, and such default in payment is not cured or such acceleration
shall not be rescinded or annulled within 30 days after written notice to the
Company from the Trustee or to the Company and to the Trustee from the Holders
of at least twenty-five percent in aggregate principal amount of the
Outstanding Securities of that series specifying such event of default and
requiring the Company to cure such default in payment or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"NOTICE OF DEFAULT" hereunder; provided, however, that it shall not be an Event
of Default if the principal amount of Indebtedness which is not paid at
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maturity or the maturity of which is accelerated is equal to or less than
$50,000,000; provided further that if, prior to a declaration of acceleration
of the maturity of the Securities of that series or the entry of judgment in
favor of the Trustee in a suit pursuant to Section 5.03, such default shall be
remedied or cured by the Company or waived by the holders of such Indebtedness,
then the Event of Default hereunder by reason thereof shall be deemed likewise
to have been thereupon remedied, cured or waived without further action upon
the part of either the Trustee or any of the Holders of the Securities of that
series; or
(6) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law (a) commences a
voluntary case or proceeding under any Bankruptcy Law with respect to itself,
(b) consents to the entry of a judgment, decree or order for relief against it
in an involuntary case or proceeding under any Bankruptcy Law, (c) consents to
or acquiesces in the institution of bankruptcy or insolvency proceedings
against it, (d) applies for, consents to or acquiesces in the appointment of or
taking possession by a Custodian of it or for all or substantially all of its
property, (e) makes a general assignment for the benefit of its creditors or
(f) takes any corporate action in furtherance of or to facilitate,
conditionally or otherwise, any of the foregoing; or
(7) (i) a court of competent jurisdiction enters a
judgment, decree or order for relief in an involuntary case or proceeding under
any Bankruptcy Law which shall (a) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of the
Company or any of its Significant Subsidiaries, (b) appoint a Custodian of the
Company or any of its Significant Subsidiaries or for all or substantially all
of its property or (c) order the winding-up or liquidation of affairs of the
Company or any of its Significant Subsidiaries, and such judgment, decree or
order shall remain unstayed and in effect for a period of 90 consecutive days;
or (ii) any bankruptcy or insolvency petition or application is filed, or any
bankruptcy or insolvency proceeding is commenced, against the Company or any of
its Significant Subsidiaries and such petition, application or proceeding is
not dismissed within 60 days; or (iii) a warrant of attachment is issued
against any material portion of the property of the Company or any of its
Significant Subsidiaries which is not released within 60 days of service; or
(8) any other Event of Default provided with respect to
Securities of that series.
A Default under clause (4) above is not an Event of Default until the
Trustee or the Holders of at least twenty-five percent in aggregate principal
amount of the Outstanding Securities of that series notify the Company of the
Default and the Company does not cure the Default within 60 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a "NOTICE OF DEFAULT." When a Default under clause
(4) above is cured within such 60-day period, it ceases to be a Default.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series (other than an
Event of Default specified in clause (6) or (7) of Section 5.01) occurs and is
continuing, the Trustee by notice in writing to the Company, or the Holders of
at least twenty-five percent in aggregate principal amount of the Outstanding
Securities of that series by notice in writing to the Company and the Trustee,
may declare the unpaid principal of and accrued interest to the date of
acceleration (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) on all the Outstanding Securities of that series to be
due and payable immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (6) or (7) of Section 5.01
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or specified principal amount) shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of any Security of that series.
Upon payment of all such principal and interest, all of the Company's
obligations under the Securities of that series and (upon payment of the
Securities of all series) this Indenture shall terminate, except obligations
under Section 6.07.
At any time after a declaration of acceleration of Maturity with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series by notice to the Trustee
may rescind an acceleration and its consequences if (i) all existing Events of
Default, other than the nonpayment of the principal of and interest on the
Securities of that series that has become due solely by such declaration of
acceleration, have been cured or waived, (ii) to the extent the payment of such
interest is lawful, interest on overdue installments of interest and overdue
principal that has become due otherwise than by such declaration of
acceleration have been paid, (iii) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction and (iv) all payments
due to the Trustee and any predecessor Trustee under Section 6.07 have been
made.
Section 5.03 Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if:
(1) default is made in the payment of any interest on
any Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security of any series at the Maturity thereof, or
21
(3) default is made in the payment of any sinking or
analogous obligation when the same becomes due by the terms of the Securities
of any series, and any such default continues for any period of grace provided
with respect to the Securities of such series,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to secure any other proper remedy.
Section 5.04 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the 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 on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Securities 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
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel) and of the Holders allowed in such judicial
proceedings, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.05 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
Section 5.06 Application of Money Collected. Any money collected
by the Trustee pursuant to this Article in respect of the Securities 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 money on account of
principal, premium, if any, or interest, upon presentation of the Securities in
respect of which moneys have been collected and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 6.07 applicable to such series;
Second: To the payment of the amounts then due and unpaid
for principal of, and premium, if any, and interest on the Securities of such
series in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities of such series for principal,
and premium, if any, and interest, respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.06. At least ten (10) days before such
record date, the Trustee shall mail to each Holder and the Company a notice
that states the record date, the payment date and the amount to be paid.
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Section 5.07 Limitation on Suits. No Holder of any Security of
any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of at least twenty-five percent in
principal amount of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of Holders of Securities
of any series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all Holders of Securities of the affected series.
Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture but
subject to Article 14, the Holder of any Security shall have the right, which
is absolute and unconditional, to receive payment of the principal of, premium,
if any, and (subject to Section 3.07) interest on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
Section 5.09 Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding has been instituted.
Section 5.10 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Securities to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12 Control by Holders. The Holders of a majority in
principal amount of the Outstanding Securities of any series 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, provided that:
(1) such direction shall not be in conflict with any
rule of law or with this Indenture;
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction; and
(3) subject to Section 6.01, the Trustee need not take
any action which might involve the Trustee in personal liability or be unduly
prejudicial to the Holders not joining therein.
Section 5.13 Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may by written notice to the Trustee on behalf of the Holders of all the
Securities of such series waive any Default or Event of Default with respect to
such series and its consequences, except a Default or Event of Default:
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(1) in respect of the payment of the principal of or
premium, if any, or interest on any Security of such series, or
(2) in respect of a covenant or other provision hereof
which under Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such Default or Event of Default shall cease to
exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
Section 5.14 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security 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 Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than ten percent in principal amount of
the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or premium, if
any, or interest on any Security on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
ARTICLE 6
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities of the Trustee.
(a) Except during the continuance of an Event of
Default, the Trustee's duties and responsibilities under this Indenture shall
be governed by Section 315(a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is
continuing, and is known to the Trustee, the Trustee shall exercise the rights
and powers vested in it by this Indenture, and shall use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) None of the provisions of Section 315(d) of the
Trust Indenture Act shall be excluded from this Indenture.
(d) Every provision of this Indenture which pertains to
the Trustee shall be subject to this Section 6.01.
Section 6.02 Notice of Defaults. Within 90 days after the
occurrence of any Default or Event of Default with respect to the Securities of
any series, the Trustee shall give to all Holders of Securities of such series,
as their names and addresses appear in the Security Register, notice of such
Default or Event of Default known to the Trustee, unless such Default or Event
of Default shall have been cured or waived; provided, however, that, except in
the case of a Default or Event of Default in the payment of the principal of or
premium, if any, or interest on any Security of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Securities of
such series.
Section 6.03 Certain Rights of Trustee. Subject to the provisions
of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
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(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 satisfactory security or indemnity against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of all
such Events of Default which may have occurred, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, approval or other paper or document, or the books
and records of the Company, unless requested in writing to do so by the Holders
of a majority in principal amount of the Outstanding Securities of any series;
provided, however, 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 not, in the opinion of the Trustee, 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 costs, expenses or
liabilities as a condition to so proceeding; the reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(g) 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; and
(h) the Trustee shall not be required to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Section 6.04 Not Responsible for Recitals or Issuance of
Securities. The recitals herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder, and that the statements made by it or to be made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate. Neither the Trustee nor any Authenticating Agent shall
be accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 6.05 May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise
deal with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
Section 6.06 Money Held in Trust. Money held by the Trustee in
trust hereunder (including amounts held by the Trustee as Paying Agent) 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 upon in writing with the Company.
Section 6.07 Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation as negotiated between the Company 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);
(2) except as otherwise expressly provided herein, 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 and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability, damage, claim or expense, including
taxes (other than taxes based upon or determined or measured by the income of
the Trustee), incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(6) or Section 5.01(7), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section 6.07 shall survive this Indenture and
the resignation or removal of the Trustee.
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Section 6.08 Disqualification; Conflicting Interests. The Trustee
shall be disqualified only where such disqualification is required by Section
310(b) of the Trust Indenture Act. Nothing shall prevent the Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
Section 6.09 Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which shall be eligible to act as Trustee
under Section 310(a)(1) of the Trust Indenture Act having a combined capital
and surplus (together with its parent) of at least $100,000,000 and subject to
supervision or examination by federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Person directly
or indirectly controlling, controlled by, or under common control with the
Company may serve as Trustee. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 310(b)
of the Trust Indenture Act after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six
months; or
(ii) the Trustee shall cease to be eligible under Section
6.09 and shall fail to resign after written request therefor by the Company or
by any such Holder of a Security who has been a bona fide Holder of a Security
for at least six months; or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 6.11, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company with respect to such Securities. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.11,
any Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
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Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of some (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of such series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall 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, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under the Trust Indenture Act.
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
(by merger, conversion, consolidation or otherwise as permitted hereunder) to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
Section 6.14 Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of, and subject to the direction of,
the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.06, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus (together with its
parent) of not less than $100,000,000 and subject to supervision or examination
by federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation as negotiated between the Company and such
Authenticating Agent for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Form of Authenticating Agent's
Certificate of Authentication
Dated: __________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
____________________________________
As Trustee
By: ________________________________
As Authenticating Agent
By: ________________________________
Authorized Signatory
Section 6.15 Compliance with Tax Laws. The Trustee hereby agrees
to comply with all U.S. Federal income tax information reporting and
withholding requirements applicable to it with respect to payments of premium
(if any) and interest on the Securities of any series, whether acting as
Trustee, Security Registrar, Paying Agent or otherwise with respect to the
Securities of any series.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the
Regular Record Date for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Securities as of such Regular Record Date (unless the Trustee has such
28
information), or if there is no Regular Record Date for interest for such
series of Securities, semi-annually, upon such dates as are set forth in the
Board Resolution or indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
provided, however, that so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
Section 7.02 Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
(b) If three or more Holders (herein 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
with respect to their rights under this Indenture or under the Securities and
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 such applicants access to the
information preserved at the time by the Trustee in accordance with Section
7.02(a); or
(ii) inform such applicants as to the
approximate number of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
7.02(a), and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
7.02(a) 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 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 objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders 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) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.02(b), 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
Section 7.02(b).
Section 7.03 Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing
with the year 2007, the Trustee shall transmit by mail to all Holders of
Securities as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of May 15, if required by and in compliance with Section 313(a)
of the Trust Indenture Act. The Trustee shall also comply with Section 313(b)
of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock exchange
or inter-dealer quotation system upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange or inter-dealer quotation system.
Section 7.04 Reports by Company. The Company shall:
(1) file with the Trustee, within 15 days after the
Company 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 Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from time
29
to time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act 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;
(2) 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 Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations;
(3) transmit or cause to be transmitted by mail to all
Holders, as their names and addresses appear in the Security Register, (a) as
promptly as reasonably practicable following the furnishing of the same to its
stockholders, the Company's annual report to stockholders, containing certified
financial statements, and any other financial reports which the Company
generally furnishes to its stockholders, and (b) within 30 days after the
filing thereof with the Trustee, such summaries of any other information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
(4) furnish to the Trustee, within 90 days after the end
of each fiscal year of the Company (which fiscal year currently ends on the
last Friday in the month of December of each calendar year), a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this paragraph, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture. Such
certificate need not comply with Section 1.02.
ARTICLE 8
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
Section 8.01 When Company May Merge, Etc. Except as may be
otherwise provided as contemplated by Section 3.01 relating to Securities of a
series, the Company shall not consolidate with, or merge with or into, any
other Person (whether or not the Company shall be the surviving corporation or
entity), or convey, transfer or lease all or substantially all of its
properties and assets as an entirety or substantially as an entirety to any
Person or group of affiliated Persons, in one transaction or a series of
related transactions, unless:
(1) either the Company shall be the continuing Person or
the Person (if other than the Company) formed by such consolidation or with
which or into which the Company is merged or the Person (or group of affiliated
Persons) to which all or substantially all the properties and assets of the
Company as an entirety or substantially as an entirety are conveyed,
transferred or leased shall be a corporation or other entity (group of
affiliated corporations or entities) organized and existing under the laws of
the United States of America or any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, all
the obligations of the Company under the Securities and this Indenture; and
(2) immediately after giving effect to such transaction
or series of related transactions, no Event of Default, and no Default, shall
have occurred and be continuing.
Notwithstanding the foregoing, the Company may (a) consolidate with,
or merge with or into, an Affiliate incorporated for the purpose incorporating
the Company in another jurisdiction and/or (b) convey, transfer or lease all or
substantially all of its properties and assets as an entirety or substantially
as an entirety to any Subsidiary or Subsidiaries, in one transaction or a
series of related transactions.
Section 8.02 Opinion of Counsel. The Company shall deliver to the
Trustee prior to the proposed transaction(s) covered by Section 8.01 an
Officers' Certificate and an Opinion of Counsel stating that the transaction(s)
and such supplemental indenture comply with this Indenture and that all
conditions precedent to the consummation of the transaction(s) under this
Indenture have been met.
Section 8.03 Successor Corporation Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
corporation or other entity or any conveyance, transfer or lease all or
substantially all of the property and assets of the Company in accordance with
Section 8.01, the successor corporation or other entity formed by such
consolidation or into which the Company is merged or the successor corporation
or entity or affiliated group of corporations or entities to which such lease,
sale, assignment or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor corporation or corporations or entity
or entities had been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor corporation or corporations or entity or
entities shall be relieved of all obligations and covenants under this
Indenture and the Securities and in the event of such conveyance or transfer,
except in the case of a lease, any such predecessor corporation may be
dissolved and liquidated.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
Without notice to or the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:
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(1) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect
to all or any series of Securities; or
(4) to add or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.01 and 3.01; or
(8) 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 6.11(b); or
(9) to cure any ambiguity, defect or inconsistency or to
correct or supplement any provision herein which may be inconsistent with any
other provision herein; or
(10) to make any change that does not materially
adversely affect the interests of the Holders of Securities of any series then
Outstanding; or
(11) to add Guarantees or Guarantors with respect to all
or any series of the Securities; or
(12) to provide for uncertificated Securities in addition
to or in place of certificated Securities (provided that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of the
Internal Revenue Code or in a manner such that the uncertificated Securities
are described in Section 163(f)(2)(B) of such Code).
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 9.03, the Trustee shall join with the Company in the execution of
any supplemental indenture authorized or permitted by the terms of this
Indenture.
Section 9.02 Supplemental Indentures with Consent of Holders.
With the written consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture (with the Securities of each series voting as a class),
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, and the Trustee shall, subject to
Section 9.03, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
premium, if any, or any installment of principal of or premium, if any, or
interest on, any Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the optional redemption or
Stated Maturity thereof, or change the manner in which the amount of any
principal thereof or premium, if any, or interest thereon is determined, or
reduce the amount of the principal of any Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, or change any Place of Payment where, or the
coin or currency or currency unit in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date);
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this Indenture
or Defaults or Events of Default hereunder and their consequences provided for
in this Indenture; or
(3) modify any of the provisions of this Section,
Section 5.13 or Section 10.06, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security affected
31
thereby; provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 10.06, or the
deletion of this proviso, in accordance with the requirements of Sections
6.11(b) and 9.01(8).
A supplemental indenture which changes or eliminates any covenant or
other provisions 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 the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article,
subject to the last sentence of this Section 9.03. In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 6.01) shall
be fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but 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.
Section 9.04 Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.05 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 9.07 Subordination Unimpaired. This Indenture may not be
amended to alter the subordination of any of the Outstanding Securities without
the written consent of the requisite holders of Senior Debt then outstanding
that would be adversely affected thereby.
ARTICLE 10
COVENANTS
Section 10.01 Payments of Securities. With respect to each series
of Securities, the Company will duly and punctually pay the principal of (and
premium, if any) and interest on such Securities in accordance with their terms
and this Indenture, and will duly comply with all the other terms, agreements
and conditions contained in, or made in the Indenture for the benefit of, the
Securities of such series.
Section 10.02 Maintenance of Office or Agency. The Company will
maintain an office or agency in each Place of Payment where Securities may be
surrendered for registration of transfer or exchange or for presentation for
payment, where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in location, of
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee as set forth in Section 1.05
hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 10.03 Compliance Certificates.
(a) The Company shall deliver to the Trustee within 90
days after the end of each fiscal year of the Company (which fiscal year
currently ends on the last Friday in the month of December of each calendar
year), an Officers' Certificate stating whether or not the signer knows of any
Default or Event of Default by the Company that occurred prior to the end of
the fiscal year and is then continuing. If the signer does know of such a
Default or Event of Default, the certificate shall describe each such Default
or Event of Default and its status and the specific section or sections of this
Indenture in connection with which such Default or Event of Default has
occurred. The Company shall also promptly notify the Trustee in writing should
the Company's fiscal year be changed so that the end thereof is on any date
32
other than the date on which the Company's fiscal year currently ends. The
certificate need not comply with Section 1.02 hereof, but shall comply with
Section 314(a)(4) of the Trust Indenture Act.
(b) The Company shall deliver to the Trustee, within 10
days after the occurrence thereof, notice of any acceleration which with the
giving of notice and the lapse of time would be an Event of Default within the
meaning of Section 5.01(5) hereof.
(c) The Company shall deliver to the Trustee forthwith
upon becoming aware of a Default or Event of Default (but in no event later
than 10 days after the occurrence of each Default or Event of Default that is
continuing), an Officers' Certificate setting forth the details of such Default
or Event of Default and the action that the Company proposes to take with
respect thereto and the specific section or sections of this Indenture in
connection with which such Default or Event of Default has occurred.
Section 10.04 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim, and will
actively resist any and all efforts to be compelled to take the benefit or
advantage of, any stay or extension law or any usury law or other law, which
would prohibit or forgive the Company from paying all or any portion of the
principal of and/or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
Section 10.05 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to
any series of Securities, it will, on or before each due date of the principal
of (and premium, if any) or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure to so act.
The Company will cause each Paying Agent for any series of Securities
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of that series) in the making
of any payment of principal (and premium, if any) or interest on the Securities
of that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for one
year after such principal (and premium, if any) or interest has become due and
payable shall, subject to any applicable escheat laws, be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee of such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York, New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 10.06 Waiver of Certain Covenants. The Company may omit in
any particular instance to comply with any term, provision or condition set
forth in Article 8, Article 10 (other than Section 10.01) or any covenant
specified as contemplated under Section 3.01 with respect to the Securities of
any series if before the time for such compliance the Holders of not less than
a majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or
33
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article. Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance with this Article.
Section 11.02 Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 30 and not
more than 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be reasonably satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 11.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected prior to the giving of
the applicable notice of redemption to Holders by the Trustee, from the
Outstanding Securities of such series not previously called for redemption,
substantially pro rata, by lot or by any other method as the Trustee considers
fair and appropriate and that complies with the requirements of the principal
national securities exchange, if any, on which such Securities are listed, and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series; provided that in case the Securities of such series have different
terms and maturities, the Securities to be redeemed shall be selected by the
Company and the Company shall give notice thereof to the Trustee.
The Trustee shall promptly notify the Company 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 the Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
Section 11.04 Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 45 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such
is the case; and
(7) the CUSIP number, if any, of the Securities to be
redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.05 Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
34
in trust as provided in Section 10.05) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 11.06 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Regular or Special Record Dates
according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.07 Securities Redeemed in Part. Any Security which is
to be redeemed only in part shall be surrendered at an office or agency of the
Company at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and Stated Maturity, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.01 Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series, except as otherwise specified as contemplated by
Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of 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 Securities of any series is herein referred to as an "OPTIONAL
SINKING FUND PAYMENT." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 12.02 Satisfaction of Sinking Fund Payments with
Securities. The Company (1) may deliver Securities of a series (other than any
Securities previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 12.03 Redemption of Securities for Sinking Fund. Not less
than 45 days (or such shorter period reasonably acceptable to the Trustee)
prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 12.02
and will also deliver to the Trustee any Securities to be so delivered (which
have not been previously delivered). Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
11.03 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 11.04. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01 Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. Unless as otherwise specified as
contemplated by Section 3.01 for Securities of such series, provision is made
for the inapplicability of, in whole or in part, or any modification to, either
35
or both of (a) defeasance of the Securities of a series under Section 13.02 or
(b) covenant defeasance of the Securities of a series under Section 13.03, then
the provisions of such Section or Sections, as the case may be, together with
the other provisions of this Article, shall be applicable to the Securities of
such series and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series elect to have either Section
13.02 (unless inapplicable) or Section 13.03 (unless inapplicable) be applied
to the Outstanding Securities of such series upon compliance with the
applicable conditions set forth below in this Article.
Section 13.02 Defeasance and Discharge. Upon the Company's
exercise of the option provided in Section 13.01 to defease the Outstanding
Securities of a particular series, the Company shall be discharged from its
obligations with respect to the Outstanding Securities of such series on the
date the applicable conditions set forth in Section 13.04 are satisfied
(hereinafter, "DEFEASANCE"). Defeasance shall mean that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same); provided, however, that the
following rights, obligations, powers, trusts, duties and immunities shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund provided for in Section 13.04, payments in respect of the principal
of (and premium, if any) and interest on such Securities when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 3.04, 3.05, 3.06, 10.02 and 10.05, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article, the Company may exercise its option with respect
to defeasance under this Section 13.02 notwithstanding the prior exercise of
its option with respect to covenant defeasance under Section 13.03 in regard to
the Securities of such series.
Section 13.03 Covenant Defeasance. Upon the Company's exercise of
the option provided in Section 13.01 to obtain a covenant defeasance with
respect to the Outstanding Securities of a particular series, the Company shall
be released from its obligations under this Indenture and any applicable
supplemental indenture (except its obligations under Sections 3.04, 3.05, 3.06,
5.06, 5.09, 6.10, 10.01, 10.02, 10.03, 10.04 and 10.05) with respect to the
Outstanding Securities of such series on and after the date the applicable
conditions set forth in Section 13.04 are satisfied (hereinafter, "COVENANT
DEFEASANCE"). Covenant defeasance shall mean that, with respect to the
Outstanding Securities of such series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in this Indenture and any applicable supplemental indenture (except its
obligations under Sections 3.04, 3.05, 3.06, 5.06, 5.09, 6.10, 10.01, 10.02,
10.03, 10.04 and 10.05), whether directly or indirectly by reason of any
reference elsewhere herein or by reason of any reference to any other provision
herein or in any other document, and such omission to comply shall not
constitute an Event of Default under Section 5.01(4) or any such supplemental
indenture with respect to Outstanding Securities of such series, and the
remainder of this Indenture and of the Securities of such series shall be
unaffected thereby.
Section 13.04 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to defeasance under Section 13.02 and
covenant defeasance under Section 13.03 with respect to the Outstanding
Securities of a particular series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09 who shall agree to comply with the provisions of
this Article applicable to it), under the terms of an irrevocable trust
agreement in form and substance reasonably satisfactory to such Trustee, as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than the
due date of any payment, money in an amount, or (C) a combination thereof, in
each case 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 and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any, on) and each installment of principal of
(and premium, if any) and interest on the Outstanding Securities of such series
on the Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities.
(2) No Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the date of
such deposit or shall occur as a result of such deposit.
(3) Such deposit, defeasance or covenant defeasance
shall not result in a breach or violation of, or constitute a default under,
any other material debt agreement or instrument to which the Company is a party
or by which it is bound.
(4) In the case of an election with respect to Section
13.02, the Company shall have delivered to the Trustee either (a) a ruling
directed to the Trustee received from the Internal Revenue Service to the
effect that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred or (B) an Opinion of Counsel, based on such ruling
or on a change in the applicable federal income tax law since the date of this
Indenture, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such defeasance had not occurred.
(5) the case of an election with respect to Section
13.03, the Company shall have delivered to the Trustee an Opinion of Counsel or
a ruling directed to the Trustee received from the Internal Revenue Service to
the effect that the Holders of the Outstanding Securities of such series will
36
not recognize income, gain or loss for federal income tax purposes as a result
of such covenant defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(6) Such defeasance or covenant defeasance shall be
effected in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant to Section
3.01.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 13.02 or the covenant defeasance under Section 13.03 (as the case may
be) have been complied with.
Section 13.05 Deposited Money and Government Obligations To Be
Held in Trust. Subject to the provisions of the last paragraph of Section
10.05, all money and Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 13.05, the "Trustee") pursuant to Section 13.04 in
respect of the Outstanding Securities of a particular series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal (and premium, if any) and interest,
but such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 13.04 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations held by it as provided in Section 13.04 with
respect to Securities of any series which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited for the purpose for which
such money or Government Obligations were deposited.
Section 13.06 Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money or U.S. Government Obligations, as the case may be,
in accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money or U.S. Government Obligations, as the case may be, held in
trust pursuant to Section 13.05 with respect to such Securities in accordance
with this Article; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations, as the case may be, so held in trust.
ARTICLE 14
SUBORDINATION
Section 14.01 Subordination. The Company covenants and agrees, and
each Holder of a Security issued hereunder by his acceptance of a Security
likewise covenants and agrees (except as otherwise provided or contemplated by
Section 3.01), that all Securities shall be issued subject to the provisions of
this Article Fourteen; and each Person holding any Security, whether upon
original issue or upon transfer, assignment or exchange thereof accepts and
agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any and
interest on all Securities issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment to
all Senior Debt, whether outstanding at the date of this Indenture or
thereafter incurred.
No provision of this Article Fourteen shall prevent the occurrence of
any Event of Default hereunder or any event which with the giving of notice or
the passage of time or both would constitute an Event of Default.
Section 14.02 Priority of Senior Debt. In the event and during the
continuation of any default by the Company in the payment of principal,
premium, interest or any other payment due on any Senior Debt, or in the event
that the maturity of any Senior Debt has been accelerated because of a default,
then, in either case, no payment shall be made by the Company with respect to
the principal (including redemption payments) of or premium, if any, or
interest on the Securities until such default shall have been cured or waived
in writing or shall have ceased to exist or such Senior Debt shall have been
discharged or paid in full.
37
In the event of the acceleration of the maturity of the Securities,
then no payment shall be made by the Company with respect to the principal
(including redemption payments) of or premium, if any, or interest on the
Securities until the holders of all Senior Debt outstanding at the time of such
acceleration shall receive payment in full of such Senior Debt (including any
amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited by the
preceding paragraphs of this Section 14.02, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Debt or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear.
Section 14.03 Payments upon Bankruptcy. Upon any payment by the
Company or distribution of assets of the Company of any kind or character,
whether in cash property or securities, to creditors upon any liquidation,
dissolution, winding up, receivership, reorganization, assignment for the
benefit of creditors, marshaling of assets and liabilities or any bankruptcy,
insolvency or similar proceedings of the Company, all amounts due or to become
due upon all Senior Debt shall first be paid in full, in cash or cash
equivalents, or payment thereof provided for in accordance with its terms,
before any payment is made on account of the principal of, premium, if any, or
interest on the indebtedness evidenced by the Securities, and upon any such
liquidation, dissolution, winding up, receivership, reorganization, assignment,
marshaling or proceeding, any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to which the
Holders or the Trustee under this Indenture would be entitled except for the
provisions of this Article Fourteen, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, directly to the holders of Senior Debt
(pro rata to such holders on the basis of the respective amounts of Senior Debt
held by such holders) or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
of such Senior Debt may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Debt in full (including,
without limitation, except to the extent, if any, prohibited by mandatory
provisions of law, post-petition interest, in any such proceedings), after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Debt, before any payment or distribution is made to the Holders of
the indebtedness evidenced by the Securities or to the Trustee under this
Indenture.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee under this Indenture or the Holders of the Securities before all
Senior Debt is paid in full or provision is made for such payment in accordance
with its terms, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of such Senior
Debt or their respective representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing any of such Senior
Debt may have been issued, as their respective interests may appear, for
application to the payment of all Senior Debt remaining unpaid until all such
Senior Debt shall have been paid in full in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the holders
of such Senior Debt.
For purposes of this Article Fourteen, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of arrangement, reorganization or
readjustment, the payment of which is subordinated (at least to the extent
provided in this Article Fourteen with respect to the Securities) to the
payment of all Senior Debt which may at the time be outstanding; provided, that
(i) the Senior Debt is assumed by the new corporation, if any, resulting from
any such arrangement, reorganization or readjustment, and (ii) the rights of
the holders of the Senior Debt are not, without the consent of such holders,
altered by such arrangement, reorganization or readjustment. The consolidation
of the Company with, or the merger of the Company into, another corporation or
the liquidation or dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided in Article Eight
shall not be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section if such other Person shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Eight. Nothing in Section 14.02 or this Section 14.03 shall
apply to claims of, or payments to, the Trustee under or pursuant to Article
Six. This Section shall be subject to the further provisions of Section 14.06.
Section 14.04 Subrogation; Rights not Impaired. Subject to the
payment in full of all Senior Debt, the rights of the Holders of the Securities
shall be subrogated to the rights of the holders of Senior Debt to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Debt until the principal of, premium, if any, and
interest on the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders of the Securities or the
Trustee on their behalf would be entitled except for the provisions of this
Article Fourteen and no payment over pursuant to the provisions of this Article
Fourteen to the holders of Senior Debt by Holders of the Securities or the
Trustee on their behalf shall, as between the Company, its creditors other than
holders of Senior Debt and the Holders of the Securities, be deemed to be a
payment by the Company to or on account of the Senior Debt; and no payments or
distributions of cash, property or securities to or for the benefit of the
Holders pursuant to the subrogation provisions of this Article, which would
otherwise have been paid to the holders of Senior Debt shall be deemed to be a
payment by the Company to or for the account of the Securities. It is
understood that the provisions of this Article Fourteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Debt, on the other
hand.
Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Debt, and the Holders
of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal, premium,
if any, and interest on the Securities as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders of the Securities and creditors of the
Company other than the holders of the Senior Debt, nor shall anything herein or
therein prevent the Holder of any Security or the Trustee on his or her behalf
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article
38
Fourteen of the holders of Senior Debt in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Fourteen, the Trustee, subject to the provisions of Article
Six, and the Holders of the Securities shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which such
liquidation, dissolution, winding up, receivership, reorganization, assignment
or marshaling proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Debt and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Fourteen.
Section 14.05 Authorization of Trustee. Each Holder of a Security
by his or her acceptance thereof authorizes and directs the Trustee in his or
her behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article Fourteen and appoints the Trustee
his or her attorney-in-fact for any and all such purposes.
Section 14.06 Notice of the Trustee. The Company shall give prompt
written notice to the Trustee and to any Paying Agent of any fact known to the
Company which would prohibit the making of any payment of moneys to or by the
Trustee or any Paying Agent in respect of the Securities pursuant to the
provisions of this Article Fourteen. Regardless of anything to the contrary
contained in this Article Fourteen or elsewhere in this Indenture, the Trustee
shall not be charged with knowledge of the existence of any Senior Debt or of
any default or event of default with respect to any Senior Debt or of any other
facts which would prohibit the making of any payment of moneys to or by the
Trustee, unless and until a Responsible Officer of the Trustee shall have
received notice in writing at its principal Corporate Trust Office to that
effect signed by an officer of the Company, or by a holder or agent of a holder
of Senior Debt who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
agent, or by the trustee under any indenture pursuant to which Senior Debt
shall be outstanding, and, prior to the receipt of any such written notice, the
Trustee shall, subject to the provisions of Article Six, be entitled to assume
that no such facts exist; provided, however, that if on a date at least three
Business Days prior to the date upon which by the terms hereof any such moneys
shall become payable for any purpose (including, without limitation, the
payment of the principal of, or interest on any Security) the Trustee shall not
have received with respect to such moneys the notice provided for in this
Section 14.06, then, regardless of anything herein to the contrary, the Trustee
shall have full power and authority to receive such moneys and to apply the
same to the purpose for which they were received, and shall not be affected by
any notice to the contrary which may be received by it on or after such prior
date.
The Trustee shall be entitled to conclusively rely on the delivery to
it of a written notice by a Person representing himself to be a holder of
Senior Debt (or a trustee or agent on behalf of such holder) to establish that
such notice has been given by a holder of Senior Debt or a trustee or agent on
behalf of any such holder. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article Fourteen, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article Fourteen, and if such evidence is
not furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 14.07 Holders of Senior Debt; Trustee's Obligations. The
Trustee and any agent of the Company or the Trustee shall be entitled to all
the rights set forth in this Article Fourteen with respect to any Senior Debt
which may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of Senior Debt and nothing in this
Indenture shall deprive the Trustee or any such agent, of any of its rights as
such holder. Nothing in this Article Fourteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Article Six.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Fourteen, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and, subject to the provisions of
Article Six, the Trustee shall not be liable to any holder of Senior Debt if it
shall pay over or deliver to holders of Securities, the Company or any other
Person moneys or assets to which any holder of Senior Debt shall be entitled by
virtue of this Article Fourteen or otherwise.
Section 14.08 Actions by Holders of Senior Debt. No right of any
present or future holder of any Senior Debt to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders, without incurring
responsibility to the Holders and without impairing or releasing the
subordination provided in this Article Fourteen or the obligations hereunder of
the Holders of the Securities to the holders of such Senior Debt, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, such Senior Debt, or
otherwise amend or supplement in any manner such Senior Debt or any instrument
evidencing the same or any agreement under which such Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Debt; (iii) release any
Person liable in any manner for the collection of such Senior Debt; and (iv)
exercise or refrain from exercising any rights against the Company, as the case
may be, and any other Person.
39
Section 14.09 Paying Agent. In case at any time any paying agent
other than the Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article Fourteen 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 Fourteen in
addition to or in place of the Trustee; provided that Sections 14.06 and 14.07
shall not apply to the Company if acting as a Paying Agent.
Section 14.10 Monies Held in Trust. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Sections 4.01 or 13.04 of this
Indenture by the Trustee for the payment of principal of, premium, if any, and
interest on the Securities shall not be subordinated to the prior payment of
any Senior Debt or subject to the restrictions set forth in this Article
Fourteen, and none of the Holders shall be obligated to pay over any such
amount to the Company or any holder of Senior Debt or any other creditor of the
Company.
ARTICLE 15
GUARANTEES
Section 15.01 Guarantee. Any series of Securities may be
guaranteed by one or more of the Guarantors. The terms and the form of any such
Guarantee will be established in the manner contemplated by Section 3.01 for
that particular series of Securities.
40
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
INTERLINE BRANDS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Treasurer
41
INTERLINE BRANDS, INC.
A Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
WILMAR HOLDINGS, INC. as Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Treasurer
WILMAR FINANCIAL, INC. as Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Treasurer
GLENWOOD ACQUISITION, LLC, as Guarantor
by Interline Brands, Inc., its sole member
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
42
SCHEDULE 1
GUARANTORS
Interline Brands, Inc., a Delaware corporation
Wilmar Holdings, Inc., a Delaware corporation
Wilmar Financial, Inc., a Delaware corporation
Glenwood Acquisition LLC, a Delaware limited liability company
43
