EXHIBIT 4.5
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XXXXXX.XXX, INC.,
as Issuer,
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
INDENTURE
Dated as of ____________
________________________
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CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------- -----------------
310 (a)(1).................................................................... 7.10
(a)(2).................................................................... 7.10
(a)(3).................................................................... N.A.
(a)(4).................................................................... N.A.
(a)(5).................................................................... 7.10
(b)....................................................................... 7.10
(c)....................................................................... N.A.
311 (a)....................................................................... 7.11
(b)....................................................................... 7.11
(c)....................................................................... N.A.
312 (a)....................................................................... 2.6
(b)....................................................................... 10.3
(c)....................................................................... 10.3
313 (a)....................................................................... 7.6
(b)(1).................................................................... N.A.
(b)(2).................................................................... 7.6, 7.7
(c)....................................................................... 7.6, 10.2
(d)....................................................................... 7.6
314 (a)(4).................................................................... 10.5
(b)....................................................................... N.A.
(c)(1).................................................................... N.A.
(c)(2).................................................................... N.A.
(c)(3).................................................................... N.A.
(d)....................................................................... N.A.
(e)....................................................................... 10.5
(f)....................................................................... N.A.
315 (a)....................................................................... N.A.
(b)....................................................................... N.A.
(c)....................................................................... N.A.
(d)....................................................................... N.A.
(e)....................................................................... N.A.
316 (a) (last sentence)....................................................... N.A.
(a)(1)(A)................................................................. N.A.
(a)(1)(B)................................................................. 6.4
(a)(2).................................................................... N.A.
--------
* N.A. means not applicable.
This Cross-Reference Table is not part of this Indenture
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------- -----------------
(b)....................................................................... N.A.
(c)....................................................................... 10.16
317 (a)(1).................................................................... N.A.
(a)(2).................................................................... N.A.
(b)....................................................................... N.A.
318 (a)....................................................................... N.A.
(b)....................................................................... N.A.
(c)....................................................................... 10.1
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE................................. 1
SECTION 1.1. Definitions.......................................................... 1
SECTION 1.2. Other Definitions.................................................... - 8
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.................... - 8
SECTION 1.4. Rules of Construction................................................ - 9
ARTICLE II THE SECURITIES............................................................. 10
SECTION 2.1. Issuable in Series.................................................... 10
SECTION 2.2. Establishment of Terms of Series of Securities....................... 10
SECTION 2.3. Execution and Authentication......................................... 12
SECTION 2.4. Registrar and Paying Agent........................................... 13
SECTION 2.5. Paying Agent to Hold Money in Trust.................................. 14
SECTION 2.6. Securityholder Lists................................................. 14
SECTION 2.7. Transfer and Exchange................................................ 14
SECTION 2.8. Replacement Securities............................................... 15
SECTION 2.9. Outstanding Securities............................................... 15
SECTION 2.10. Treasury Securities................................................. 16
SECTION 2.11. Temporary Securities................................................ 16
SECTION 2.12. Cancellation........................................................ 16
SECTION 2.13. Global Securities................................................... 17
SECTION 2.14. Defaulted Interest.................................................. 18
SECTION 2.15. CUSIP Numbers....................................................... 18
ARTICLE III REDEMPTION................................................................. 18
SECTION 3.1. Notices to Trustee................................................... 18
SECTION 3.2. Selection of Securities to Be Redeemed............................... 19
SECTION 3.3. Notice of Redemption................................................. 19
SECTION 3.4. Effect of Notice of Redemption....................................... 20
SECTION 3.5. Deposit of Redemption Price.......................................... 20
SECTION 3.6. Securities Redeemed in Part.......................................... 20
ARTICLE IV COVENANTS.................................................................. 20
SECTION 4.1. Payment of Securities................................................ 20
SECTION 4.2. Maintenance of Office or Agency...................................... 21
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TABLE OF CONTENTS
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SECTION 4.3. Reports by the Issuer................................................ 21
SECTION 4.4. Compliance Certificate............................................... 22
SECTION 4.5. Corporate Existence.................................................. 22
SECTION 4.6. Payment of Taxes and Other Claims.................................... 22
SECTION 4.7. Limitation on Indebtedness of Restricted Subsidiaries................ 23
SECTION 4.8. Compliance with Laws................................................. 23
ARTICLE V SUCCESSOR ISSUER........................................................... 23
SECTION 5.1. When the Issuer May Merge or Transfer Assets......................... 23
ARTICLE VI DEFAULTS AND REMEDIES...................................................... 24
SECTION 6.1. Events of Default.................................................... 24
SECTION 6.2. Acceleration......................................................... 26
SECTION 6.3. Other Remedies....................................................... 26
SECTION 6.4. Waiver of Past Defaults.............................................. 27
SECTION 6.5. Control by Majority.................................................. 27
SECTION 6.6. Limitation on Suits.................................................. 27
SECTION 6.7. Rights of Holders to Receive Payments................................ 28
SECTION 6.8. Collection Suit by Trustee........................................... 28
SECTION 6.9. Trustee May File Proofs of Claim..................................... 28
SECTION 6.10. Priorities.......................................................... 28
SECTION 6.11. Undertaking for Costs............................................... 29
SECTION 6.12. Waiver of Stay or Extension Laws.................................... 29
ARTICLE VII TRUSTEE.................................................................... 29
SECTION 7.1. Duties of Trustee.................................................... 29
SECTION 7.2. Rights of Trustee.................................................... 31
SECTION 7.3. Individual Rights of Trustee......................................... 32
SECTION 7.4. Trustee's Disclaimer................................................. 32
SECTION 7.5. Notice of Defaults................................................... 32
SECTION 7.6. Reports by Trustee to Holders........................................ 32
SECTION 7.7. Compensation and Indemnity........................................... 32
SECTION 7.8. Replacement of Trustee............................................... 33
SECTION 7.9. Successor Trustee by Merger.......................................... 35
SECTION 7.10. Eligibility; Disqualification....................................... 35
SECTION 7.11. Preferential Collection of Claims Against Issuer.................... 35
ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE......................................... 36
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TABLE OF CONTENTS
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SECTION 8.1. Discharge of Liability on Securities; Defeasance..................... 36
SECTION 8.2. Conditions to Defeasance............................................. 37
SECTION 8.3. Application of Trust Money........................................... 38
SECTION 8.4. Repayment to Issuer.................................................. 38
SECTION 8.5. Indemnity for Government Obligations................................. 38
SECTION 8.6. Reinstatement........................................................ 38
ARTICLE IX AMENDMENTS................................................................. 39
SECTION 9.1. Without Consent of Holders........................................... 39
SECTION 9.2. With Consent of Holders.............................................. 40
SECTION 9.3. Compliance with Trust Indenture Act.................................. 41
SECTION 9.4. Revocation and Effect of Consents and Waivers........................ 41
SECTION 9.5. Notation on or Exchange of Securities................................ 41
SECTION 9.6. Trustee to Sign Amendments........................................... 41
ARTICLE X MISCELLANEOUS.............................................................. 42
SECTION 10.1. Trust Indenture Act Controls........................................ 42
SECTION 10.2. Notices............................................................. 42
SECTION 10.3. Communication by Holders with Other Holders......................... 43
SECTION 10.4. Certificate and Opinion as to Conditions Precedent.................. 43
SECTION 10.5. Statements Required in Certificate or Opinion....................... 43
SECTION 10.6. Rules by Trustee, Paying Agent and Registrar........................ 44
SECTION 10.7. Legal Holidays...................................................... 44
SECTION 10.8. Governing Law....................................................... 44
SECTION 10.9. No Recourse Against Others.......................................... 44
SECTION 10.10. Successors......................................................... 44
SECTION 10.11. Multiple Originals................................................. 44
SECTION 10.12. Appointments Respecting Global Securities.......................... 44
SECTION 10.13. No Adverse Interpretation of Other Agreements....................... 44
SECTION 10.14. Table of Contents; Headings........................................ 45
SECTION 10.15. Severability....................................................... 45
SECTION 10.16. Acts of Holders.................................................... 45
SECTION 10.17. Benefit of Indenture............................................... 46
SECTION 10.18. Force Majeure...................................................... 46
SECTION 10.19. Consent to Jurisdiction............................................ 47
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INDENTURE, dated as of _____________, between XXXXXX.XXX, INC., a
Delaware corporation (the "Issuer"), and THE BANK OF NEW YORK TRUST COMPANY,
N.A., a national banking association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Securities issued under
this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions
The following terms shall have the following meanings herein:
"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,"
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.
"Agent" means any Registrar or Paying Agent.
"Attributable Indebtedness" in respect of a Sale/Leaseback
Transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such Sale/ Leaseback Transaction, including any period for
which such lease has been extended or may, at the option of the lessor, be
extended. Such present value shall be calculated using a discount rate equal to
the rate of interest implicit in such transaction, determined in accordance with
GAAP.
"Board of Directors" means, with respect to a corporation, the board
of directors thereof, and, with respect to any other entity, the board or
committee of such Person having a similar function, or, in any case, any
committee of such Board duly authorized to act on behalf of such Board. Unless
otherwise specifically provided herein, any reference to the Board of Directors
shall be a reference to the Board of Directors of the Issuer.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Issuer to have been adopted by the
Board of Directors of the Issuer or pursuant to authorization by the Board of
Directors of the Issuer and to be in full force and effect on the date of the
certificate and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the
warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, and all of the other ownership or profit interests in such Person
(including partnership, member or trust interests therein), whether voting or
nonvoting, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
"Capitalized Lease Obligation" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP.
"Code" means the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 10.2 or such other address as to which the
Trustee may give notice to the Issuer.
"Currency Agreement" means, in respect of a Person, any foreign
exchange contract, currency swap agreement or other similar agreement designed
to protect such Person against fluctuations in currency values as to which such
Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Depository" means, with respect to any Securities issuable or
issued in whole or in part in global form, the Person specified pursuant to
Section 2.13 as the Depository with respect to such Securities, and any and all
successors thereto appointed as depository hereunder and having become such
pursuant to the applicable provision of this Indenture.
"Discount Security" means any Security that provides for an amount
less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2.
"Disqualified Stock" means, with respect to any Person and any
Series of Securities, any Capital Stock that by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable, in
each case at the option of the holder thereof) or upon the happening of any
event (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable at the option of
the holder thereof for Indebtedness or Disqualified Stock or (iii) is redeemable
at the option of the holder thereof, in whole or in part, in each case on or
prior to the 91st day after the Stated Maturity of such Securities; provided,
however, that only the portion of Capital Stock that so matures or is
mandatorily redeemable, is so convertible or exchangeable or is so redeemable at
the option of the holder thereof prior to such date shall be deemed to be
Disqualified Stock; and provided, further, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to repurchase or redeem such
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Capital Stock upon the occurrence of an "asset sale" or "change of control"
occurring prior to the 91st day after the Stated Maturity of such Securities
shall not constitute Disqualified Stock.
"euro" means the single currency of the participating member states
of the European Union.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Foreign Currency" means any currency or any currency unit issued by
a government other than the government of the United States of America.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, including those set forth in
(i) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) the opinions and
pronouncements of the Public Company Accounting Oversight Board, (iii)
statements and pronouncements of the Financial Accounting Standards Board, (iv)
such other statements by such other entity as approved by a significant segment
of the accounting profession and (v) the rules and regulations of the SEC
governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the SEC.
"Global Security" means, with respect to any Series of Securities
issued hereunder, a Security that is executed by the Issuer and authenticated
and delivered by the Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with this Indenture and any Board Resolution,
supplemental indenture hereto or Officer's Certificate, which shall be
registered in the name of the Depository or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of all the outstanding Securities of such Series or any portion
thereof, in either case having the same terms, including without limitation, the
same Issue Date, date or dates on which principal is due and interest rate or
method or determining interest, if any.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any Person and
any obligation, direct or indirect, contingent or otherwise, of such Person (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation of such Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the actual obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
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"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Incur" means issue, assume, create, Guarantee, incur or otherwise
become directly or indirectly liable for; provided, however, that (i) any
Indebtedness or Capital Stock of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Subsidiary at the time it
becomes a Subsidiary unless such Indebtedness or Capital Stock is repaid or
redeemed on or promptly following the date on which such Person becomes a
Subsidiary; and (ii) neither the accrual of interest nor the accretion of
original issue discount nor the payment of interest in the form of additional
Indebtedness with the same terms and the payment of dividends on Disqualified
Stock or Preferred Stock in the form of additional shares of the same class of
Disqualified Stock or Preferred Stock (to the extent provided for when the
Indebtedness or Disqualified Stock or Preferred Stock on which such interest or
dividend is paid was originally issued) shall be considered an Incurrence of
Indebtedness. The term "Incurrence" when used as a noun shall have a correlative
meaning.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(i) the principal in respect of (A) indebtedness of such Person for
money borrowed and (B) indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such Person is
responsible or liable;
(ii) all Capitalized Lease Obligations of such Person and all
Attributable Indebtedness in respect of Sale/Leaseback Transactions
entered into by such Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of
such Person and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable arising in the ordinary
course of business and contingent consideration based on future
performance);
(iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit and
other contingent liabilities (but only to the extent such contingent
liabilities are not reflected as liabilities on the consolidated balance
sheet of such Person) securing obligations (other than obligations
described in clauses (i) through (iii) above) entered into in the ordinary
course of business of such Person to the extent such letters of credit are
not drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the tenth Business Day following payment on the
letter of credit);
(v) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to
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any Subsidiary of such Person, the liquidation preference with respect to
any Preferred Stock (but excluding, in each case, any accrued dividends);
(vi) all obligations of the type referred to in clauses (i) through
(v) above, of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including by
means of any Guarantee;
(vii) all obligations of the type referred to in clauses (i) through
(vi) above, of other Persons secured by any Lien on any property or asset
of such Person (whether or not such obligation is assumed by such Person),
other than a pledge of Capital Stock of an Unrestricted Subsidiary to
secure Non-Recourse Debt of such Unrestricted Subsidiary, the amount of
such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured; and
(viii) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above or the
accreted value thereof, in the case of Indebtedness issued with original issue
discount, and the maximum liability, upon the occurrence of the contingency
giving rise to the obligation, of any contingent obligations at such date.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in interest rates as to which such Person is a party or a
beneficiary.
"Issue Date" means, with respect to any Series of Securities, the
date on which Securities of such Series are originally issued.
"Issuer Order" means a written order signed in the name of the
Issuer by the Issuer's principal executive officer, principal financial officer
or principal accounting officer.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Maturity," when used with respect to any Security or installment of
principal thereof, means the date on which the principal of such Security or
such 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, notice of option to elect repayment or otherwise.
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"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Issuer nor any Restricted Subsidiary (a) provides any Guarantee or credit
support of any kind (including any undertaking, Guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) other than a pledge of the
Capital Stock of an Unrestricted Subsidiary or (b) is directly or indirectly
liable (as a guarantor or otherwise) and (ii) no default with respect to which
(including any rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness of the Issuer or any
Restricted Subsidiary to declare a default under such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its stated
maturity.
"Officer" means the Chairman of the Board, the President, the Chief
Executive Officer, any Vice President, the Chief Financial Officer, the
Treasurer or the Secretary of the Issuer, as applicable.
"Officer's Certificate" means a certificate signed on behalf of the
Issuer by any Officer.
"Opinion of Counsel" means a written opinion from legal counsel (who
may be an employee of or counsel to the Issuer) that meets the requirements of
Section 10.4.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock," as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"Restricted Subsidiary" means any Subsidiary of the Issuer other
than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Issuer or a Restricted
Subsidiary transfers such property to a Person and thereafter the Issuer or a
Restricted Subsidiary leases it from such Person.
"SEC" means the U.S. Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Issuer secured
by a Lien.
"Securities" means any debt securities issued from time to time by
the Issuer pursuant to the terms of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
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"Significant Subsidiary" means any Restricted Subsidiary that would
be a "Significant Subsidiary" of the Issuer within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any Security, the date
specified in such Security as the fixed date on which the payment of principal
of such Security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the Issuer unless such contingency has
occurred).
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) 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 (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Trust Officer" means any trust officer, assistant vice president or
vice president of the Trustee assigned by the Trustee to administer this
Indenture and who shall have direct responsibility for the administration of
this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means such successor.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Issuer
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors may designate any
Subsidiary of the Issuer (including any newly acquired or newly formed
Subsidiary of the Issuer) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Issuer or any other Restricted
Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so
designated. The Board of Directors may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; provided, however, that (a) immediately after giving
effect to such designation no Default shall have occurred and be continuing and
(b) such designation shall be deemed to be an Incurrence of Indebtedness by a
Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if such Indebtedness is
permitted under this Indenture. Any such designation by the Board of Directors
shall be evidenced to the Trustee by promptly filing with the Trustee a copy
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of the Board Resolution giving effect to such designation and an Officer's
Certificate certifying that such designation complied with the foregoing
provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the Issuer's option.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Issuer all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Issuer or another Wholly Owned Subsidiary.
SECTION 1.2. Other Definitions.
TERM DEFINED IN SECTION
---- ------------------
"Act" 10.16(a)
"Authenticating Agent" 2.3
"Bankruptcy Law" 6.1
"covenant defeasance option" 8.1(b)
"Custodian" 6.1
"Event of Default" 6.1
"legal defeasance option" 8.1(b)
"Legal Holiday" 10.7
"Paying Agent" 2.4
"Registrar" 2.4
"Retiring Trustee" 7.8
"Series" 2.1
"Successor Issuer" 5.1(i)
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. The
mandatory provisions of the TIA are incorporated by reference in and made a part
of this Indenture. The following TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
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All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) "herein", "hereof" and other word of similar import refer to
this Indenture as a whole and not to any particular Section, Article or
other subdivision;
(7) all references to Sections or Articles or Exhibits refer to
Sections or Articles or Exhibits of or to this Indenture unless otherwise
indicated;
(8) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections
or rules adopted by the SEC from time to time;
(9) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(10) except as otherwise expressly provided, the principal amount of
any noninterest bearing or other discount security at any date shall be
the principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP;
(11) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation preference of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater; and
(12) except as otherwise expressly provided, all references to the
date the Securities of a Series were originally issued shall refer to the
date the initial Securities of such Series were originally issued.
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ARTICLE II
THE SECURITIES
SECTION 2.1. Issuable in Series. The aggregate principal amount of
Securities that may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued in one or more Series (each a "Series").
All Securities of a Series shall be identical except as may be set forth in a
Board Resolution, a supplemental indenture hereto or an Officer's Certificate
detailing the adoption of the terms thereof pursuant to the authority granted
under a Board Resolution. In the case of Securities of a Series to be issued
from time to time, the Board Resolution, Officer's Certificate or supplemental
indenture hereto may provide for the method by which specified terms (such as
interest rate, maturity date, record date or date from which interest, if any,
shall accrue) are to be determined. Securities may differ between Series in
respect of any matters, provided that all Series of Securities shall be equally
and ratably entitled to the benefits of this Indenture.
SECTION 2.2. Establishment of Terms of Series of Securities. At or
prior to the issuance of any Securities within a Series, the following shall be
established (as to the Series generally in the case of Subsection 2.2(1), and
either as to such Securities within the Series or as to the Series generally in
the case of Subsections 2.2(2) through 2.2(21)) by a Board Resolution, a
supplemental indenture hereto or an Officer's Certificate pursuant to authority
granted under a Board Resolution:
(1) the title of the Series, including CUSIP numbers (which shall
distinguish the Securities of that particular Series from the Securities of any
other Series);
(2) the price or prices (expressed as a percentage of the principal
amount thereof) at which the Securities of the Series will be issued;
(3) any limit upon the aggregate principal amount of the Securities
of the Series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the Series);
(4) the date or dates on which the principal and premium, if any, of
the Securities of the Series are payable;
(5) the rate or rates (which may be fixed or variable) per annum or,
if applicable, the method used to determine such rate or rates (including, but
not limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear interest, if
any, the date or dates from which such interest, if any, shall accrue, the date
or dates on which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any interest payment date;
(6) the place or places where the principal of, premium, if any, and
interest, if any, on the Securities of the Series shall be payable, or the
method of such payment, if by wire transfer, mail or other means;
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(7) if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which the Securities of the
Series may be redeemed, in whole or in part, at the option of the Issuer or
otherwise;
(8) the obligation, if any, of the Issuer to redeem or purchase the
Securities of the Series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the Series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the dates, if any, on which the Issuer will be obligated to
repurchase the Securities of the Series at the option of the Holders, the price
or prices at which Securities of the Series will be repurchased and other
detailed terms and provisions of any repurchase obligations;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series shall be
issuable;
(11) the forms of the Securities of the Series in bearer or
registered form (and, if in fully registered form, whether the Securities will
be issuable as Global Securities) and, if issuable as Global Securities, the
Depository therefor;
(12) if any Securities of the Series are to be issued as bearer
Securities or as one or more global securities representing individual bearer
Securities of the Series, whether certain provisions for the payment of
additional interest or tax redemptions shall apply; whether interest with
respect to any portion of a temporary bearer Security of the series payable on
any interest payment date prior to the exchange of the temporary bearer Security
for definitive bearer Securities of the Series shall be paid to any clearing
organization with respect to the portion of such temporary bearer Security held
for its account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received by a
clearing organization will be credited to the persons entitled to interest
payable on the interest payment date; and the terms upon which a temporary
bearer Security may be exchanged for one or more definitive bearer Securities of
the Series;
(13) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2;
(14) the currency of denomination of the Securities of the Series,
which may be Dollars or any Foreign Currency, including, but not limited to, the
euro, and if such currency of denomination is a composite currency other than
the euro, the agency or organization, if any, responsible for overseeing such
composite currency;
(15) the terms, if any, of conversion or exchange of the Securities
of the Series;
(16) the designation of the currency, currencies or currency units
in which payment of the principal of, premium, if any, and interest, if any, on
the Securities of the Series will be made;
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(17) if payments of principal of, premium, if any, or interest, if
any, on the Securities of the Series are to be made in one or more currencies or
currency units other than that or those in which such Securities are
denominated, the manner in which the exchange rate with respect to such payments
will be determined;
(18) the manner in which the amounts of payment of principal of,
premium, if any, or interest, if any, on the Securities of the Series will be
determined, if such amounts may be determined by reference to an index based on
a currency or currencies or by reference to a commodity, commodity index, stock
exchange index or financial index;
(19) the provisions, if any, relating to any security provided for
the Securities of the Series;
(20) any addition to or change in the Events of Default which
applies to any Securities of the Series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 6.2;
(21) any addition to or change in the covenants set forth in
Articles IV or V which applies to Securities of the Series;
(22) the terms, if any, on which Securities of the Series will be
subordinate to other debt of the Issuer;
(23) any other terms of the Securities of the Series (which terms
shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1, but which may modify or delete any provision of this
Indenture insofar as it applies to such Series); and
(24) any depositories, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to Securities of such
Series if other than those appointed herein.
All Securities of any one Series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental
indenture hereto or Officer's Certificate referred to above, and the authorized
principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board
Resolution, supplemental indenture hereto or Officer's Certificate.
SECTION 2.3. Execution and Authentication. At least one Officer
shall sign the Securities for the Issuer by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually authenticates the Security. The signature of the Trustee on a
Security shall be conclusive
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evidence that such Security has been duly and validly authenticated and issued
under this Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the applicable
Board Resolution, supplemental indenture hereto or Officer's Certificate, upon
receipt by the Trustee of an Issuer Order. Such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Issuer or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officer's Certificate.
The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the applicable Board Resolution,
supplemental indenture hereto or Officer's Certificate delivered pursuant to
Section 2.2, except as provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall
have received and (subject to Section 7.2) shall be fully protected in relying
on the Board Resolution, supplemental indenture hereto or Officer's Certificate
establishing the form of the Securities of that Series or of Securities within
that Series and the terms of the Securities of that Series or of Securities
within that Series; provided, however, that if all Securities of a Series are
not to be originally issued at one time, it shall not be necessary to deliver
(i) the Board Resolution, supplemental indenture hereto or Officer's Certificate
or the Issuer Order otherwise required pursuant to this Section 2.3 or (ii) the
Opinion of Counsel otherwise required pursuant to Section 7.2, prior to the
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.
The Trustee may appoint an agent or agents with respect to one or
more Series of Securities (each an "Authenticating Agent") acceptable to the
Issuer to authenticate the Securities of such Series. Unless limited by the
terms of such appointment, any such Authenticating Agent may authenticate the
Securities of such Series whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent.
SECTION 2.4. Registrar and Paying Agent. The Issuer shall, with
respect to each Series of Securities, at the place or places specified with
respect to such Series pursuant to Section 2.2, (i) appoint an agent (the
"Registrar") who shall maintain an office or agency where Securities of such
Series may be presented for registration of transfer or for exchange and (ii) an
agent (the "Paying Agent") who shall maintain an office or agency where
Securities of such Series may be presented for payment. The Registrar shall,
with respect to each Series of Securities, keep a register of such Securities
and of their transfer and exchange. The Issuer may have one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar, and the term "Paying Agent" includes any additional
paying agent. The Issuer may change any Registrar or Paying Agent without notice
to the Holders.
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In the event the Issuer shall retain any Person not a party to this
Indenture as an agent hereunder, the Issuer shall enter into an appropriate
agency agreement with any Registrar or Paying Agent not a party to this
Indenture, which shall incorporate the terms of the TIA. The agreement shall
implement the provisions of this Indenture that relate to such agent. The Issuer
shall notify the Trustee of the name and address of each such agent. If the
Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such and shall be entitled to appropriate compensation therefor pursuant to
Section 7.7. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent.
The Issuer hereby appoints the Trustee the initial Registrar and
Paying Agent for each Series unless another Registrar or Paying Agent, as the
case may be, is appointed prior to the time Securities of that Series are first
issued.
SECTION 2.5. Paying Agent to Hold Money in Trust. The Issuer shall
require each Paying Agent (other than the Trustee) to agree in writing that such
Paying Agent shall hold in trust for the benefit of Securityholders of any
Series of Securities or the Trustee all money held by such Paying Agent for the
payment of principal, premium, if any, or interest, if any, on such Series of
Securities and shall notify the Trustee of any default by the Issuer in making
any such payment. If the Issuer or a Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Issuer at any time may require a Paying Agent (other than the Trustee)
to pay all money held by it to the Trustee and to account for any funds
disbursed by such Paying Agent. Upon complying with this Section, the Paying
Agent (if other than the Issuer or a Subsidiary) shall have no further liability
for the money delivered to the Trustee. Upon any bankruptcy, reorganization or
similar proceeding with respect to the Issuer, the Trustee shall serve as Paying
Agent for the Securities.
SECTION 2.6. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders of each Series of Securities and
shall otherwise comply with TIA Section 312(a). For any such Series of
Securities, if the Trustee or any Paying Agent is not the Registrar, the Issuer
shall cause the Registrar to furnish to the Trustee or any such Paying Agent, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee or any such Paying Agent may request in writing,
a list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders of such Series of Securities, and the
Issuer shall otherwise comply with TIA Section 312(a).
SECTION 2.7. Transfer and Exchange. Where Securities of a Series are
presented to the Registrar with a request to register a transfer or to exchange
them for an equal principal amount of Securities of the same Series, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfers and
exchanges, the Trustee shall authenticate Securities at the Registrar's request.
No service charge shall be made for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Issuer may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith.
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Neither the Issuer nor the Registrar shall be required (a) to issue,
register the transfer of, or exchange Securities of any Series for the period
beginning at the opening of business fifteen days immediately preceding the
mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion being redeemed
of any such Securities selected, called or being called for redemption in part.
SECTION 2.8. Replacement Securities. If a mutilated Security is
surrendered to the Trustee or if the Holder of a Security shall provide the
Issuer and the Trustee with evidence to their satisfaction that the Security has
been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee
shall authenticate a replacement Security if the requirements of Section 8-405
of the Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Issuer, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Issuer and the Trustee to protect the Issuer, the Trustee, the Paying
Agent and the Registrar from any loss which any of them may suffer if a Security
is replaced. The Issuer and the Trustee may charge the Holder for their expenses
in replacing a Security, including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the Issuer.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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 2.9. Outstanding Securities. Securities outstanding at any
time are all the Securities authenticated by the Trustee except for those
canceled, those delivered for cancellation and those described in this Section
2.9 as not outstanding. A Security does not cease to be outstanding because the
Issuer or an Affiliate of the Issuer holds the Security.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding until the Trustee and the Issuer receive proof satisfactory to them
that the replaced Security is held by a "protected purchaser," as that term is
defined in the Uniform Commercial Code.
If the Paying Agent (other than the Issuer, a Subsidiary or an
Affiliate thereof) segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date money sufficient to pay all
principal, premium, if any, and interest payable on that date with respect to
the Securities of a Series (or portions thereof) to be redeemed or maturing, as
the case
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may be, and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities of the Series (or portions thereof) cease to
be outstanding and interest on them ceases to accrue.
In determining whether the Holders of the requisite principal amount
of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.2.
SECTION 2.10. Treasury Securities. In determining whether the
Holders of the required principal amount of Securities of a Series have
concurred in any request, demand, authorization, direction, notice, consent or
waiver, Securities of a Series owned by the Issuer or an Affiliate shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver, only Securities of a Series that a Trust
Officer of the Trustee actually knows are so owned shall be so disregarded.
SECTION 2.11. Temporary Securities. Until definitive Securities are
ready for delivery, the Issuer may prepare temporary Securities which the
Trustee shall authenticate upon an Issuer Order. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Issuer considers appropriate for temporary Securities. Without unreasonable
delay, the Issuer shall prepare and the Trustee upon request shall authenticate
definitive Securities of the same Series and date of maturity. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Issuer for that purpose and
such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Issuer shall execute,
and the Trustee shall authenticate and deliver in exchange therefor, one or more
definitive Securities representing an equal principal amount of Securities.
Until so exchanged, the Holder of temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as a Holder of definitive
Securities.
SECTION 2.12. Cancellation. The Issuer at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee for cancellation any Securities surrendered to them
for registration of transfer or exchange or payment. The Trustee shall cancel
and dispose of (subject to the record retention requirements of the Exchange
Act) all Securities surrendered for registration of transfer or exchange,
payment or cancellation in accordance with its customary procedures for the
disposition and cancellation of securities in effect as of the date of such
disposition and upon request shall deliver a certificate of such disposal to the
Issuer unless the Issuer directs the Trustee to deliver canceled Securities to
the Issuer. The Issuer may not issue new Securities to replace Securities it has
redeemed, paid or delivered to the Trustee for cancellation.
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SECTION 2.13. Global Securities.
(1) Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officer's Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the form of one or
more Global Securities and the Depository for such Global Security or
Securities.
(2) Transfer and Exchange. Notwithstanding any provisions to the
contrary contained in Section 2.7 and in addition thereto, any Global Security
shall be exchangeable pursuant to Section 2.7 for Securities registered in the
names of Holders other than the Depository for such Security or its nominee only
if (i) such Depository notifies the Issuer that it is unwilling or unable to
continue as Depository for such Global Security or if at any time such
Depository ceases to be a clearing agency registered under the Exchange Act,
and, in either case, the Issuer fails to appoint a successor Depository within
90 days of such event, (ii) the Issuer executes and delivers to the Trustee an
Officer's Certificate to the effect that such Global Security shall be so
exchangeable or (iii) an Event of Default with respect to the Securities
represented by such Global Security shall have occurred and shall be continuing.
Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the Depository
shall direct in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and terms. Except as provided in
this Section 2.13(2), a Global Security may not be transferred except as a whole
by the Depository with respect to such Global Security to a nominee of such
Depository, by a nominee of such Depository to such Depository or another
nominee of such Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such a successor Depository.
(3) Legend. Any Global Security issued hereunder shall bear a legend
in substantially the following form:
"THIS GLOBAL SECURITY IS HELD BY THE DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.7 OF THE INDENTURE, (II) THIS GLOBAL SECURITY
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.7 OF THE
INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL
SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN
CONSENT OF XXXXXX.XXX, INC."
(4) Acts of Holders. The Depository, as a Holder, may appoint agents
and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under this Indenture.
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(5) Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.2, payment of
the principal of, premium, if any, and interest, if any, on any Global Security
shall be made to the Holder thereof.
SECTION 2.14. Defaulted Interest. If the Issuer defaults in a
payment of interest on a Series of Securities, the Issuer shall pay defaulted
interest (plus interest on such defaulted interest to the extent lawful) at the
rate specified therefor in such Securities in any lawful manner. The Issuer may
pay the defaulted interest to the Persons who are Securityholders on a
subsequent special record date. The Issuer shall fix or cause to be fixed (or
upon the Issuer's failure to do so the Trustee shall fix) any such special
record date and payment date to the reasonable satisfaction of the Trustee which
specified record date shall not be less than 10 days prior to the payment date
for such defaulted interest and shall promptly mail or cause to be mailed to
each Securityholder a notice that states the special record date, the payment
date and the amount of defaulted interest to be paid. The Issuer shall notify
the Trustee in writing of the amount of defaulted interest proposed to be paid
on each Security and the date of the proposed payment, and at the same time the
Issuer 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 satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such defaulted interest as provided in this
Section 2.14.
SECTION 2.15. CUSIP Numbers. The Issuer in issuing Securities may
use "CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption 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 Issuer shall
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee. The Issuer may, with respect to the
Securities of any Series, reserve the right to redeem and pay such Securities or
may covenant to redeem and pay such Securities or any part thereof prior to the
Stated Maturity thereof at such time and on such terms as provided for in the
Board Resolution, supplemental indenture hereto or Officer's Certificate
establishing the terms of such Securities. If a Series of Securities is
redeemable and the Issuer wants or is obligated to redeem prior to the Stated
Maturity thereof all or part of the Securities of such Series pursuant to the
terms of such Securities, it shall notify the Trustee and the Paying Agent in
writing of the redemption date and the principal amount of such Securities to be
redeemed and the redemption price.
The Issuer shall give the notice at least 45 days but not more than
60 days before the redemption date unless the Trustee and the Paying Agent
consent to a shorter period. The
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record date relating to such redemption shall be selected by the Issuer and set
forth in the related notice given to the Trustee and the Paying Agent, which
record date shall be not less than 15 days prior to the date selected for
redemption by the Issuer.
SECTION 3.2. Selection of Securities to Be Redeemed. Unless
otherwise indicated for a particular Series of Securities by a Board Resolution,
a supplemental indenture hereto or an Officer's Certificate, in the case of any
partial redemption, selection of the Securities of a Series for redemption will
be made by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which such Securities are listed, or,
if such Securities are not so listed, on a pro rata basis, by lot or by such
other method as the Trustee shall deem to be fair and appropriate, although no
Security of $1,000 in original principal amount or less will be redeemed in
part. Except as provided in the preceding sentence, provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption. Upon request of the Issuer, the Trustee shall
notify the Issuer of the Securities or portions of Securities to be redeemed.
SECTION 3.3. Notice of Redemption. Unless otherwise indicated for a
particular Series of Securities by a Board Resolution, a supplemental indenture
hereto or an Officer's Certificate, at least 30 days but not more than 60 days
before a date for redemption of Securities, the Trustee at the expense of the
Issuer shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price plus accrued and unpaid
interest, if any;
(5) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(6) that, unless the Issuer defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, interest on Securities (or
portion thereof) called for redemption ceases to accrue on and after the
redemption date;
(7) the CUSIP number, if any, printed on the Securities being
redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Securities.
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The Trustee shall give the notice of redemption in the Issuer's name
and at the Issuer's expense. In such event, the Issuer shall provide the Trustee
with the information required by this Section 3.3.
SECTION 3.4. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption shall become due and
payable on the redemption date and at the redemption price stated in the notice.
Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price stated in the notice, plus accrued and unpaid interest, if any,
to the redemption date; provided that the Issuer shall have deposited the
redemption price with the Paying Agent or the Trustee on or before 12:00 noon
(New York City time) on the date of redemption; provided, further, that if the
redemption date is after a regular record date and on or prior to the interest
payment date, the accrued and unpaid interest, if any, shall be payable to the
Securityholder of the redeemed Securities registered on the relevant record
date. Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.5. Deposit of Redemption Price. By at least 12:00 noon
(New York City time) on the date on which any principal of or interest, if any,
on any Security is due and payable, the Issuer shall deposit with the Paying
Agent (or, if the Issuer or a Subsidiary is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the redemption price of and accrued
and unpaid interest, if any, on all Securities to be redeemed on that date other
than Securities or portions of Securities called for redemption which are owned
by the Issuer or a Subsidiary and have been delivered by the Issuer or such
Subsidiary to the Trustee for cancellation. The Trustee or the Paying Agent
shall promptly return to the Issuer any money deposited with the Trustee or the
Paying Agent by the Issuer in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Securities to be redeemed.
If the Issuer complies with the preceding paragraph, then, unless
the Issuer defaults in the payment of such redemption price, interest on the
Securities to be redeemed will cease to accrue on and after the applicable
redemption date, whether or not such Securities are presented for payment.
SECTION 3.6. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Issuer shall execute and the Trustee
shall authenticate for the Holder (at the Issuer's expense) a new Security equal
in a principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities. The Issuer shall promptly pay
the principal of, premium, if any, and interest, if any, on the Securities of
any Series on the dates and in the manner provided in this Indenture and in the
Board Resolution, supplemental indenture hereto or Officer's Certificate
establishing the terms of the Securities of such Series. Principal, premium, if
any, and interest shall be considered paid on the date due if on or before 12:00
noon
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(New York City time) on such date the Trustee or the Paying Agent holds (or, if
the Issuer or a Subsidiary is the Paying Agent, the segregated account or
separate trust fund maintained by the Issuer or such Subsidiary pursuant to
Section 2.5) in accordance with this Indenture money sufficient to pay all
principal, premium, if any, and interest then due and the Trustee or the Paying
Agent (or, if the Issuer or a Subsidiary is the Paying Agent, the Issuer or such
Subsidiary), as the case may be, is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture.
Notwithstanding anything to the contrary contained in this
Indenture, the Issuer or the Paying Agent may, to the extent it is required to
do so by law, deduct or withhold income or other similar taxes imposed by the
United States of America or other domestic or foreign taxing authorities from
principal, premium, if any, or interest payments hereunder.
SECTION 4.2. Maintenance of Office or Agency.
The Issuer shall maintain in the City of New York, an office or
agency (which may be an office of the Trustee or Registrar or agent of the
Trustee or Registrar) where Securities may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Issuer in
respect of the Securities and this Indenture may be served. The Issuer shall
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Issuer 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;
provided, however, that no such designation or rescission shall in any manner
relieve the Issuer of its obligation to maintain an office or agency in the City
of New York for such purposes. The Issuer shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 4.3. Reports by the Issuer. The Issuer, pursuant to TIA
Section 314(a), shall:
(1) file with the Trustee, within 15 days after the Issuer is
required to file the same with the SEC, 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 SEC may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the SEC pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Issuer is not
required to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the SEC, in accordance with
rules and regulations prescribed from time to time by the SEC, 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
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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 SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such additional
information, documents and reports with respect to compliance by the Issuer,
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in TIA Section 313(c), such
summaries of any information, documents and reports required to be filed by the
Issuer pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the SEC.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely on Officer's Certificates).
SECTION 4.4. Compliance Certificate. The Issuer shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Issuer an
Officer's Certificate signed by the chief executive officer, the chief financial
officer or the chief accounting officer stating whether or not the signer knows
of any Default or Event of Default that occurred during such period. If he does,
the certificate shall describe the Default or Event of Default, its status and
what action the Issuer is taking or proposes to take with respect thereto. The
Issuer also shall comply with TIA Section 314(a)(4).
SECTION 4.5. Corporate Existence. Except as otherwise permitted by
Article V, the Issuer shall do or cause to be done, at its own cost and expense,
all things necessary to preserve and keep in full force and effect its corporate
existence and the material rights (charter and statutory) and governmental
franchises of the Issuer; provided, however, that the Issuer shall not be
required to preserve any such material right or governmental franchise, if the
Board of Directors shall determine in good faith (such determination to be
evidenced by a Board Resolution), that the preservation thereof is no longer
desirable in the conduct of the business of the Issuer and the Subsidiaries,
taken as a whole.
SECTION 4.6. Payment of Taxes and Other Claims. The Issuer shall pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, all material taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied or
imposed upon it or any of its Restricted Subsidiaries or properties of it or any
of its Restricted Subsidiaries; provided, however, that the Issuer shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, or charge whose amount, applicability or validity is being contested
in good faith by appropriate proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders.
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SECTION 4.7. Limitation on Indebtedness of Restricted Subsidiaries.
The Issuer will not permit any Unrestricted Subsidiary to Incur any Indebtedness
other than Non-Recourse Debt.
SECTION 4.8. Compliance with Laws. The Issuer shall comply, and
shall cause each of its Restricted Subsidiaries to comply, with all applicable
statutes, rules, regulations, orders and restrictions of the United States of
America, all states and municipalities thereof, and of any governmental
department, commission, board, regulatory authority, bureau, agency and
instrumentality of the foregoing, in respect of the conduct of their respective
businesses and the ownership of their respective properties, except for any such
noncompliance as would not be reasonably likely to have a material adverse
effect on the financial condition or results of operations of the Issuer and its
Subsidiaries, taken as a whole.
ARTICLE V
SUCCESSOR ISSUER
SECTION 5.1. When the Issuer May Merge or Transfer Assets. Except,
in respect of any Series of Securities, to the extent permitted in the Board
Resolution, supplemental indenture hereto or Officer's Certificate establishing
the terms of such Series of Securities, the Issuer will not consolidate with or
merge with or into, or convey, transfer or lease, in one transaction or a series
of related transactions, all or substantially all the assets of the Issuer and
its Restricted Subsidiaries taken as a whole to, any Person unless:
(i) the resulting, surviving or transferee Person (the "Successor
Issuer") (if not the Issuer) will expressly assume, by supplemental
indenture hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all the obligations of the Issuer
under the Securities and this Indenture and shall agree to be subject to
all provisions of the Securities and this Indenture; and, if the Successor
Issuer is not a Person organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia, the
Successor Issuer shall (a) irrevocably designate and appoint an agent
reasonably satisfactory to the Trustee for service of process in the City
of New York as its authorized agent to receive, accept, and acknowledge on
its behalf service of process in any legal suit, action or proceeding
arising out of or based upon this Indenture, (b) agree that service of
process upon such agent shall be deemed and held in every respect to be
effective personal service upon it and (c) maintain such appointment (or
that of a successor reasonably satisfactory to the Trustee) continuously
in effect at all times while the it is obligated under this Indenture or
any Security; nothing herein shall adversely affect the Trustee's or any
Holder's right to serve process in any other manner;
(ii) immediately after giving effect to such transaction on a pro
forma basis (and treating any Indebtedness that becomes an obligation of
the Successor Issuer or any Restricted Subsidiary as a result of such
transaction as having been Incurred by the Successor Issuer or such
Restricted Subsidiary at the time of such transaction), no Default or
Event of Default will have occurred and be continuing; and
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(iii) the Issuer will have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture, as set forth in this Indenture, and each
stating such other matters as the Trustee may reasonably request.
The Successor Issuer will succeed to, and be substituted for, and
may exercise every right and power of, the Issuer under this Indenture, but the
predecessor Issuer in the case of a conveyance, transfer or lease of all its
assets or substantially all its assets will be released from the obligations
under this Indenture and the Securities, including without limitation the
obligation to pay the principal of, premium, if any, and interest on the
Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. Unless otherwise indicated for a
particular Series by a Board Resolution, a supplemental indenture hereto or an
Officer's Certificate, an "Event of Default" with respect to the Securities of a
Series occurs if:
(1) the Issuer defaults in any payment of interest on any Security
of such Series when the same becomes due and payable, and such default
continues for a period of 30 days;
(2) the Issuer defaults in the payment of the principal of any
Security of such Series when the same becomes due and payable at its
Stated Maturity, upon optional or mandatory redemption, upon required
repurchase, upon declaration or otherwise;
(3) the Issuer fails to comply with its obligations under Article V;
(4) the Issuer fails to comply with Section 4.3 and such failure
continues for 30 days after the notice specified below;
(5) the Issuer fails to comply with any of its agreements in the
Securities of such Series or this Indenture (other than those referred to
in (1), (2), (3) or (4) above) and such failure continues for 60 days
after the notice specified below;
(6) the Issuer or any Significant Subsidiary of the Issuer fails to
pay any Indebtedness within any applicable grace period provided in such
Indebtedness after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total
amount of such Indebtedness unpaid or accelerated exceeds $25.0 million or
its foreign currency equivalent at the time;
(7) failure by the Issuer or any Significant Subsidiary of the
Issuer to pay final judgments (to the extent such judgments are not paid
or covered by insurance provided by a reputable carrier that has the
ability to perform) aggregating in excess of $25.0 million, which
judgments are not paid, discharged or stayed for a period of 60 days;
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(8) the Issuer or a Significant Subsidiary of the Issuer pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case in which it is the debtor;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Issuer or any Significant
Subsidiary of the Issuer in an involuntary case;
(B) appoints a Custodian of the Issuer or any Significant
Subsidiary or for any substantial part of its property of the Issuer
or any Significant Subsidiary; or
(C) orders the winding up or liquidation of the Issuer or any
Significant Subsidiary of the Issuer
(or any similar relief is granted under any foreign laws) and the order,
decree or relief remains unstayed and in effect for 90 days; or
(10) there occurs any other Event of Default provided in a Board
Resolution, supplemental indenture hereto or Officer's Certificate for
such Series.
The foregoing will constitute Events of Default in respect of such
Series of Securities whatever the reason for any such Event of Default and
whether it is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clauses (4) or (5) of this Section 6.1 is not an
Event of Default with respect to the Securities of a Series until the Trustee by
notice to the Issuer, or the Holders of at least 25% in aggregate principal
amount of the outstanding Securities of such Series by notice to the Issuer and
the Trustee, give notice of the Default and the Issuer does not cure such
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Default within the time specified in said clauses (4) or (5) after receipt of
such notice. Such notice must specify the Default, demand that it be remedied
and state that such notice is a "Notice of Default."
The Issuer shall deliver to the Trustee, within 30 days after it
obtains knowledge of the occurrence thereof, written notice in the form of an
Officer's Certificate of any Event of Default under clause (6) of this Section
6.1 and any event which with the giving of notice or the lapse of time would
become an Event of Default under clause (4) or clause (5) of this Section 6.1
and what action the Issuer is taking or proposes to take with respect thereto.
SECTION 6.2. Acceleration.
(a) If an Event of Default (other than an Event of Default specified
in Section 6.1(8) or (9) with respect to the Issuer) occurs and is continuing
with respect to the Securities of a Series, the Trustee by notice to the Issuer,
or the Holders of at least 25% in aggregate principal amount of the outstanding
Securities of such Series, by notice to the Issuer and the Trustee, may declare
the principal amount of, and accrued but unpaid interest on, all the Securities
of such Series to be due and payable. Upon such a declaration, such principal
amount and interest shall be due and payable immediately. If an Event of Default
specified in Section 6.1(8) or (9) occurs and is continuing with respect to the
Securities of a Series, the principal amount of, and accrued interest on all
outstanding Securities of such Series shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holders. The Holders of a majority in aggregate principal amount of the
outstanding Securities of such Series by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration. No such rescission shall affect any subsequent Default
or impair any right consequent thereto.
(b) In the event of a declaration of acceleration of the Securities
of a Series because an Event of Default has occurred and is continuing as a
result of the acceleration of any Indebtedness described in Section 6.1(6), the
declaration of acceleration of the Securities of such Series shall be
automatically annulled if the holders of all Indebtedness described in Section
6.1(6) have rescinded the declaration of acceleration in respect of such
Indebtedness within 45 days of the date of such declaration, and if the
annulment of the acceleration of the Securities of such Series would not
conflict with any judgment or decree of a court of competent jurisdiction, and
all existing Events of Default, except non-payment of principal or interest on
the Securities of such Series that became due solely because of the acceleration
of such Securities, have been cured or waived.
SECTION 6.3. Other Remedies.
(a) If an Event of Default occurs and is continuing with respect to
the Securities of a Series, the Trustee may pursue any available remedy to
collect the payment of the principal amount of, premium, if any, or interest, if
any, on the outstanding Securities of such
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Series or to enforce the performance of any provision of the Securities of such
Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of such Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are, to the extent permitted by law, cumulative.
SECTION 6.4. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities of a Series then outstanding by
notice to the Trustee may on behalf of the Holders of all such Securities waive
any past or existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security of such Series or (ii) a
Default in respect of a provision that under Section 9.2 cannot be amended
without the consent of each Securityholder affected. When a Default is waived,
it is deemed cured, and any Event of Default arising therefrom shall be deemed
to have been cured, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right. This Section 6.4 shall be in lieu of
Section 316(a)(1)(B) of the TIA, and such Section 316(a)(1)(B) of the TIA is
hereby expressly excluded from this Indenture, as permitted by the TIA.
SECTION 6.5. Control by Majority. Upon provision of reasonable
indemnity to the Trustee satisfactory to the Trustee, the Holders of a majority
in aggregate principal amount of the outstanding Securities of a Series may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee. However, the Trustee, which may rely on
opinions of counsel, may refuse to follow any direction that conflicts with law
or this Indenture or, subject to Section 7.1, that the Trustee determines is
unduly prejudicial to the rights of other Securityholders of such Series or
would involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION 6.6. Limitation on Suits. A Holder may not pursue any remedy
with respect to this Indenture or the Securities unless:
(i) the Holder gives to the Trustee previous written notice stating
that an Event of Default respecting the Securities of a Series held by such
Holder is continuing;
(ii) the Holders of at least 25% in aggregate principal amount of
the outstanding Securities of such Series make a written request to the Trustee
to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee security or
indemnity reasonably satisfactory to it against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
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(v) the Holders of a majority in aggregate principal amount of the
outstanding Securities of such Series do not give the Trustee a direction
inconsistent with such request within such 60-day period.
A Holder of Securities of a Series may not use this Indenture to
prejudice the rights of another Holder of Securities of that Series or to obtain
a preference or priority over another Holder of Securities of that Series.
SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the principal amount of, premium, if any, and interest, if any, on
the Securities held by such Holder, on or after the respective due dates
expressed in such Securities, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default
specified in Section 6.1(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Issuer for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Issuer, its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other securities or property payable or deliverable on any such
claims and to distribute the same, and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
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 to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI respecting the Securities of one or more
Series, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: if any Board Resolution, supplemental indenture hereto or
Officer's Certificates establishing the terms of any Series of Securities
establishes a priority among multiple Series of Securities to which
payment is to be applied, then to the Securityholders of each such Series
for amounts due and unpaid on the Securities of each such Series for
principal, premium, if any, and interest, if any, in the priority so
established, according to the amounts due and payable on such Securities
for principal
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amount, premium, if any, and interest, if any, respectively; or, if no
such priority is established between multiple Series of Securities to
which payment is to be applied, to Securityholders for amounts due and
unpaid on the Securities of each such Series for principal, premium, if
any, and interest, if any, ratably, without preference or priority of any
kind, according to the amounts due and payable on all such Securities for
principal amount, premium, if any, and interest, if any, respectively; and
THIRD: to the Issuer or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Securities of a Series pursuant to this Section 6.10. At least 15
days before such record date, the Issuer shall mail to each such Securityholder
and the Trustee a notice that states the record date, the payment date and
amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit
by Holders of more than 10% in aggregate principal amount of the outstanding
Securities of a Series.
SECTION 6.12. Waiver of Stay or Extension Laws. The Issuer (to the
extent it may lawfully do so) shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Issuer (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture (as
modified or supplemented by a
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Board Resolution, a supplemental indenture hereto or an Officer's
Certificate) and the TIA and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture (as modified or supplemented by a Board
Resolution, a supplemental indenture hereto or an Officer's
Certificate). However, in the case of any such certificates or
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform
to the requirements of this Indenture (as so modified or
supplemented).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section 7.1.
(e) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.1 and to the provisions of the TIA.
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SECTION 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely upon, and shall be fully
protected from acting or refraining from acting on, any document (whether in
original or facsimile form) believed by it to be genuine and to have been signed
or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may request
an Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) 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 security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(g) The Trustee shall not be charged with knowledge of any Default
or Event of Default with respect to the Securities unless either (1) a Trust
Officer shall have actual knowledge of such Default or Event of Default or (2)
written notice of such Default or Event of Default shall have been given to the
Trustee by the Issuer or by any Holder of the Securities.
(h) In no event shall the Trustee be responsible or liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(i) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture.
(j) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be
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enforceable by, the Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act hereunder.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Issuer or its respective Affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent or Registrar
may do the same with similar rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture (as modified or supplemented by a Board Resolution, a
supplemental indenture hereto or an Officer's Certificate) or the Securities, it
shall not be accountable for the Issuer's use of the proceeds from the
Securities, and it shall not be responsible for any statement of the Issuer in
this Indenture or in any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.5. Notice of Defaults. If a Default or an Event of Default
occurs and is continuing with respect to the Securities of a Series and if it is
actually known to the Trustee, the Trustee must mail to each Holder of such
Securities notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default in payment of principal of, premium (if
any) or interest (if any) on any Security, the Trustee may withhold notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding notice is not opposed to the interests of Securityholders.
SECTION 7.6. Reports by Trustee to Holders.
(a) Within 60 days after each May 15 beginning with the May 15
following the date hereof, and for so long as any Securities remain outstanding,
the Trustee shall mail to the Holders of the Securities a brief report dated as
of such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also shall
comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the Holders
of Securities shall be mailed to the Issuer and filed with the SEC and each
stock exchange on which any Securities are listed in accordance with TIA Section
313(d). The Issuer shall promptly notify the Trustee in writing when any
Securities are listed on any stock exchange or any delisting thereof.
SECTION 7.7. Compensation and Indemnity.
(a) The Issuer shall pay to the Trustee from time to time such
compensation for its services as the Issuer and the Trustee shall from time to
time agree upon in writing. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Issuer shall
reimburse the Trustee upon request for all reasonable fees and expenses,
including out-of-pocket expenses, incurred or made by it in connection with the
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performance of its duties hereunder, including costs of collection, in addition
to such compensation for its services, except any such expense, disbursement or
advance as shall have been caused by its own negligence, willful misconduct or
bad faith, unless the Trustee shall have complied with the applicable standard
of care required by the TIA. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Trustee shall provide the Issuer
reasonable notice of any expenditure not in the ordinary course of business;
provided that prior approval by the Issuer of any such expenditure shall not be
a requirement for the making of such expenditure nor for reimbursement by the
Issuer thereof. The Issuer shall indemnify each of the Trustee and any
predecessor Trustees (and their respective officers, directors, employees and
agents) against any and all loss, damage, claim, liability or expense (including
reasonable attorneys' fees and expenses) (other than taxes applicable to the
Trustee's compensation hereunder) incurred by it in connection with the
acceptance or administration of this trust and the performance of its duties
hereunder, except to the extent any such loss, damage, claim, liability or
expense shall have been caused by its own negligence, bad faith or willful
misconduct. The Trustee shall notify the Issuer promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not
relieve the Issuer of its obligations hereunder unless the failure to notify the
Issuer impairs the Issuer's ability to defend such claim. The Issuer shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel, and the Issuer will pay the reasonable fees and expenses
of such counsel. The Issuer need not pay for any settlement made without its
consent. The Issuer need not reimburse any expense or indemnify against any
loss, damage, claim, liability or expense incurred by the Trustee through the
Trustee's own willful misconduct, negligence or bad faith, unless the Trustee
shall have complied with the applicable standard of care required by the TIA.
(b) To secure the Issuer's payment obligations in this Section 7.7,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay the principal of, premium, if any, and interest on particular Securities.
(c) The Issuer's payment obligations pursuant to this Section 7.7
shall survive the resignation or removal of the Trustee and discharge of this
Indenture. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.1(8) or (9) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under the Bankruptcy Law,
provided, however, that this shall not affect the Trustee's rights as set forth
in the preceding paragraph or Section 6.10.
(d) The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at any
time with respect to the Securities of one or more Series following 30 days
notice to the Issuer. The Holders of a majority in principal amount of the
outstanding Securities of a Series may remove the Trustee with respect to the
Securities of such Series following 30 days notice to the Trustee and the Issuer
and may appoint a successor Trustee. The Issuer may remove the Trustee if:
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(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii) a receiver or other public officer takes charge of the Trustee
or its property;
(iv) the Trustee otherwise becomes incapable of acting; or
(v) prior to the issuance and authentication of any Securities, at
the sole discretion of the Issuer.
If the Trustee resigns, is removed by the Issuer or by the Holders
of a majority in principal amount of the Securities of a Series and such Holders
do not appoint a successor Trustee within a reasonable time, or if a vacancy
exists in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the "Retiring Trustee"), the Issuer shall promptly appoint
a successor Trustee.
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 Issuer and to the Retiring Trustee an
instrument accepting such appointment. Thereupon the resignation or removal of
the Retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders. The
Retiring Trustee shall, upon payment of its charges hereunder, promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) Series, the Issuer, the
Retiring Trustee and each successor Trustee with respect to the Securities of
one or more Series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) 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 the
Series to which the appointment of such successor Trustee relates, (b) 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 (c) 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. Thereupon the resignation or removal of the Retiring Trustee shall
become effective to the extent provided therein, and each such successor Trustee
shall have all
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the rights, powers and duties of the Trustee under this Indenture with respect
to the Securities of the Series to which the appointment of such successor
Trustee relates. Each successor Trustee shall mail a notice of its succession to
the Securityholders of the Series to which its appointment relates. The Retiring
Trustee shall promptly transfer all property held by it as Trustee hereunder
with respect to the Securities of the Series to which the appointment of such
successor Trustee relates, subject to the lien provided for in Section 7.7.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
If a successor Trustee does not take office within 30 days after the
Retiring Trustee resigns or is removed, the Retiring Trustee or the Holders of
10% in principal amount of the outstanding Securities of a Series may petition
at the expense of the Issuer any court of competent jurisdiction for the
appointment of a successor Trustee for such Securities.
If the Trustee fails to comply with Section 7.10, any Holder of
Securities of a Series who has been a Securityholder for at least six months may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee with respect to the Securities of that
Series.
SECTION 7.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee, provided that such corporation shall
be eligible under this Article VII and TIA Section 3.10(a).
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any Securities of a Series shall have been authenticated but
not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any Securities of a Series shall not
have been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force that is provided anywhere in such Securities or in this Indenture.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA Section 310(a). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Issuer are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Issuer. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section
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311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated. The Trustee hereby waives any right to
set off any claim that it may have against the Issuer in any capacity (other
than as Trustee and Paying Agent) against any of the assets of the Issuer held
by the Trustee.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities; Defeasance.
(a) When (i) the Issuer delivers to the Trustee all outstanding
Securities of a Series (other than Securities replaced pursuant to Section 2.8)
for cancellation or (ii) all outstanding Securities of a Series have become due
and payable, whether at maturity or as a result of the mailing of a notice of
redemption pursuant to Article III or the Securities of a Series will become due
and payable at their Stated Maturity within 91 days, or the Securities of a
Series are to be called for redemption within 91 days under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Issuer, and, in each case of
this clause (ii), the Issuer irrevocably deposits or causes to be deposited with
the Trustee funds sufficient to pay at maturity or upon redemption all
outstanding Securities of that Series, including interest thereon, if any, to
maturity or such redemption date (other than Securities replaced pursuant to
Section 2.8), and if in either case the Issuer pays all other sums payable
hereunder by the Issuer, then this Indenture (including the obligations of any
Board Resolution, supplemental indenture hereto or Officer's Certificate) shall,
subject to Section 8.1(c), cease to be of further effect with respect to such
Series of Securities. The Trustee shall acknowledge satisfaction and discharge
of this Indenture with respect to such Series of Securities (including the
obligations of any Board Resolution, supplemental indenture hereto or Officer's
Certificate relating to such Series) on demand of the Issuer accompanied by an
Officer's Certificate and an Opinion of Counsel from the Issuer that all
conditions precedent provided for herein relating to satisfaction and discharge
of this Indenture have been complied with and at the cost and expense of the
Issuer.
(b) Subject to Sections 8.1(c) and 8.2, the Issuer at any time may
terminate (i) all of its obligations under the Securities of a Series and under
this Indenture with respect to such Series (including the obligations of any
Board Resolution, supplemental indenture hereto or Officer's Certificate
relating to such Series) ("legal defeasance option") or (ii) its obligations
under Sections 4.4, 4.6 and 4.7 and the operation of Sections 6.1(4), 6.1(5),
6.1(6), 6.1(7), 6.1(8) (but only with respect to a Significant Subsidiary) and
6.1(9) (but only with respect to a Significant Subsidiary) with respect to a
Series of Securities ("covenant defeasance option"). The Issuer may exercise its
legal defeasance option notwithstanding its prior exercise of its covenant
defeasance option.
If the Issuer exercises its legal defeasance option with respect to
a Series of Securities, payment of the Securities of such Series may not be
accelerated because of an Event of Default. If the Issuer exercises its covenant
defeasance option with respect to a Series of Securities, payment of the
Securities of such Series may not be accelerated because of an Event
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of Default specified in Section 6.1(4), 6.1(5), 6.1(6), 6.1(7), 6.1(8) (but only
with respect to a Significant Subsidiary) or 6.1(9) (but only with respect to a
Significant Subsidiary).
Upon satisfaction of the conditions set forth herein and upon
request of the Issuer, the Trustee shall acknowledge in writing the discharge of
those obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's
obligations in Sections 2.4, 2.5, 2.6, 2.8, 4.1, 4.5, 7.7, 7.8, 8.4, 8.5 and 8.6
shall survive until the Securities have been paid in full. Thereafter, the
Issuer's obligations in Sections 7.7, 8.4 and 8.5 shall survive such
satisfaction and discharge.
SECTION 8.2. Conditions to Defeasance. The Issuer may exercise its
legal defeasance option or its covenant defeasance option with respect to a
Series only if:
(i) the Issuer irrevocably deposits or causes to be deposited in
trust with the Trustee money or U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide cash at such times and in such
amounts as will be sufficient to pay principal, premium, if any, and
interest, if any, when due on all outstanding Securities of that Series
(except Securities replaced pursuant to Section 2.8) to maturity or
redemption, as the case may be;
(ii) the Issuer delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal, premium, if any, and interest when
due and without reinvestment on the deposited U.S. Government Obligations
plus any deposited money without investment will provide cash at such
times and in such amounts as will be sufficient to pay principal, premium,
if any, and interest, if any, when due on all outstanding Securities of
such Series (except Securities replaced pursuant to Section 2.8) to
maturity or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.1(8) or (9) with respect to the
Issuer occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other
material agreement binding on the Issuer;
(v) the Issuer delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment
Company Act of 1940;
(vi) in the case of the legal defeasance option, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there
has been a change in the applicable federal income tax law, in either case
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to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Securities of such Series will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit and 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 deposit and defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Securities of such Series will 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 and in the same manner and at the same times as would have been
the case if such deposit and covenant defeasance had not occurred; and
(viii) the Issuer delivers to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent to
the defeasance and discharge of the Securities of such Series as
contemplated by this Article VIII have been complied with.
Before or after a deposit, the Issuer may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.3. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations either directly or through the Paying Agent as the
Trustee may determine and in accordance with this Indenture to the payment of
principal of, premium, if any, and interest, if any, on the defeased Securities.
SECTION 8.4. Repayment to Issuer. The Trustee and the Paying Agent
shall promptly turn over to the Issuer upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Issuer upon written request any money held by
them for the payment of principal, premium, if any, or interest, if any, that
remains unclaimed for one year after such principal, premium, if any, and
interest have become due and payable, and, thereafter, Securityholders entitled
to the money must look to the Issuer for payment as general creditors.
SECTION 8.5. Indemnity for Government Obligations. The Issuer shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations other than any such
tax, fee or other charge which by law is for the account of the Holders of the
defeased Securities; provided that the Trustee shall be entitled to charge any
such tax, fee or other charge to such Holder's account.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the
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Issuer's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to this Article VIII
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article VIII;
provided, however, that, (a) if the Issuer has made any payment of interest or
premium on or principal of any Securities following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent and (b) unless otherwise required by any
legal proceeding or any order or judgment of any court or governmental
authority, the Trustee or Paying Agent shall return all such money and U.S.
Government Obligations to the Issuer promptly after receiving a written request
therefor at any time, if such reinstatement of the Issuer's obligations has
occurred and continues to be in effect.
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders. The Issuer and the Trustee
may amend this Indenture or the Securities of any Series without notice to or
consent of any Securityholder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to comply with Article V;
(iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(iv) to add Guarantees with respect to any Series of Securities;
(v) to secure any Series of Securities;
(vi) to add to the covenants of the Issuer for the benefit of the
Securityholders of all or any Series of Securities or to surrender any
right or power herein conferred upon the Issuer or to provide any
additional right or benefit to the Securityholders of all or any Series of
Securities;
(vii) to make any change to the Securities of all or any Series of
Securities that does not, in the good faith opinion of the Board of
Directors, materially and adversely affect the rights of any Holder of
Securities of such Series;
(viii) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA;
(ix) to establish the form or terms of Securities of any Series as
permitted by Section 2.1; and
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(x) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to 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 7.8.
After an amendment under this Section 9.1 becomes effective, the
Issuer shall mail to Holders of the affected Securities a notice briefly
describing such amendment. The failure to give such notice to all such
Securityholders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.1.
SECTION 9.2. With Consent of Holders. The Issuer and the Trustee may
amend this Indenture or the Securities of a Series without notice to any
Securityholder but with the written consent of the Holders of at least a
majority in principal amount of the outstanding Securities of each Series
(including consents obtained in connection with a purchase of or tender offer or
exchange for Securities) affected by such amendment. However, without the
consent of each Securityholder of an outstanding Security affected, an amendment
may not:
(i) reduce the principal amount of Securities whose Holders must
consent to an amendment;
(ii) reduce the rate of, or extend the time for payment of, interest
on any Security;
(iii) reduce the principal or extend the Stated Maturity of any
Security;
(iv) reduce the premium payable upon the redemption of any Security
or change the time at which any Security may be redeemed in accordance
with Article III;
(v) make any Security payable in money other than that stated in the
Security;
(vi) impair the right of any Holder to receive payment of principal
of, premium, if any, and interest on such Holder's Securities on or after
the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities;
(vii) in the case of any Securities that are subordinated, modify
the provisions of such Securities with respect to subordination of such
Securities in a manner materially adverse to the Holders thereof; or
(viii) make any change in this second sentence of Section 9.2.
An amendment which changes or eliminates any covenant or other
provision of this Indenture which has 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.
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It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective, the
Issuer shall mail to Holders of the affected Securities a notice briefly
describing such amendment. The failure to give such notice to all such
Securityholders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.2.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or any Securities shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. In the case of an
amendment or waiver respecting this Indenture, after such amendment or waiver
becomes effective, it shall bind every Securityholder. In the case of an
amendment or waiver respecting the Securities of a Series, after such amendment
or waiver becomes effective, it shall bind every Holder of Securities of such
Series.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an amendment
changes the terms of the Securities of a Series, the Trustee may require the
Holders of such Securities to deliver them to the Trustee. The Trustee may place
an appropriate notation on such Securities regarding the changed terms and
return them to such Holders. Alternatively, if the Issuer or the Trustee so
determines, the Issuer in exchange for such Securities shall issue and the
Trustee shall authenticate new Securities that reflect the changed terms.
Failure to make the appropriate notation or to issue new Securities shall not
affect the validity of such amendment.
SECTION 9.6. Trustee to Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
materially and adversely affect the rights, duties, liabilities or immunities of
the Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be provided with indemnity reasonably satisfactory
to it and to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, in addition to the documents required by Section 10.4, an
Officer's Certificate and an Opinion of Counsel stating that such amendment
complies with the provisions of this Article IX.
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ARTICLE X
MISCELLANEOUS
SECTION 10.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control.
SECTION 10.2. Notices. Any notice or communication shall be in
writing and delivered in person, transmitted by facsimile machine, or mailed by
first-class mail or overnight air courier guaranteeing next day delivery
addressed as follows:
if to the Issuer:
XxxXxx.xxx, Inc.
0000 Xx Xxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: General Counsel
if to the Trustee:
The Bank of New York Trust Company, N.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Corporate Unit
The Issuer or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
The Trustee agrees to accept and act upon facsimile transmission of
written instructions and directions pursuant to this Indenture given by the
Insurer, provided, however, that: (i) the Issuer, subsequent to such facsimile
transmission of written instructions or directions, shall provide the originally
executed instructions or directions to the Trustee in a timely manner and (ii)
such originally executed instructions or directions shall be signed by an
Officer of the Issuer; provided however, that the failure of the Issuer to
subsequently provide originally executed instructions or directions to the
Trustee shall not invalidate the written instructions or directions transmitted
by the Issuer to the Trustee via facsimile.
All notices and communications (other than those sent to
Securityholders) shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five
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Business Days after being deposited in the mail, postage prepaid, if mailed;
when telephonic acknowledgment of receipt is obtained, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight
courier promising next Business Day delivery.
Any notice or communication to a Securityholder shall be mailed, by
first class mail, postage prepaid, or by overnight air courier promising next
Business Day delivery, including any notice delivered in connection with TIA
Sections 310(b), 313(c), 314(a) and 315(b), to it at its address as set forth on
the registration books of the Registrar and shall be sufficiently given to it if
so mailed within the time prescribed. To the extent required by the TIA, any
notice or communication shall also be mailed to any Person described in TIA
Section 313(c). Any notice or communication mailed to a Securityholder shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, and except as otherwise provided in this Indenture, if a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 10.3. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuer, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take or refrain
from taking any action under this Indenture, the Issuer shall furnish to the
Trustee:
(i) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signer,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been satisfied; and
(ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been satisfied.
SECTION 10.5. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than a certificate provided pursuant to
TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e)
and shall include:
(i) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(ii) 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;
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(iii) a statement that, in the opinion of 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
(iv) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 10.6. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions; provided, however, that no such rule shall conflict with
the terms of this Indenture or the TIA.
SECTION 10.7. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in the
State of New York. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue on such payment for the intervening period. If a record date is a Legal
Holiday, the record date shall not be affected.
SECTION 10.8. Governing Law. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 10.9. No Recourse Against Others. No director, officer,
employee, agent, incorporator, stockholder, member, manager or partner of the
Issuer, as such, shall have any liability for any obligations of the Issuer
under the Securities, this Indenture or for any claim based on, in respect of,
or by reason of such obligations or their creation. Each Holder of Securities by
accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for issuance of the Securities.
SECTION 10.10. Successors. All agreements of the Issuer in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 10.11. Multiple Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
SECTION 10.12. Appointments Respecting Global Securities. The Issuer
initially appoints the Trustee as Paying Agent and Registrar and custodian with
respect to any Global Securities.
SECTION 10.13. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Issuer or its
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Subsidiaries or of any other Person. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
SECTION 10.14. Table of Contents; Headings. The table of contents,
cross- reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 10.15. Severability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 10.16. 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 the
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 Issuer. 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 conclusive in favor of the Trustee and the Issuer if made in the
manner provided in this Section 10.16.
(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 such witness, notary or officer 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 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) Notwithstanding anything to the contrary contained in this
Section 10.16, the principal amount and serial numbers of Securities held by any
Holder, and the date of holding the same, shall be proved by the register of the
Securities maintained by the Registrar as provided in Section 2.4.
(d) If the Issuer shall solicit from the Holders of all or any
Series of the Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Issuer may, at its option, by or pursuant to
resolutions of its Board of Directors, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
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direction, notice, consent, waiver or other Act, but the Issuer shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date shall
be the record date specified in or pursuant to such resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith or the date of the most recent list of
Holders forwarded to the Trustee prior to such solicitation pursuant to Section
2.6 and not later than the date such solicitation is completed. 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 the then 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 then 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 eleven months after the record date.
(e) 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 or 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
Issuer in reliance thereon, whether or not notation of such action is made upon
such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so
itself with regard to all or any part of the principal amount of such Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
SECTION 10.17. Benefit of Indenture. Nothing in this Indenture or
any Securities, express or implied, shall give to any Person, other than the
parties hereto, any Paying Agent, any Registrar and its successors hereunder,
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 10.18. Force Majeure. The Trustee shall not be considered in
breach of or default in its obligations with respect to any obligations created
hereunder or progress in respect thereto, in the event of enforced delay in the
performance of such obligations due to unforeseeable causes beyond its control
and without its fault or negligence, including but not limited to: acts of God
or of the public enemy, acts of a government, acts of the other party, fires,
floods, epidemics, quarantine restrictions, strikes, freight embargoes,
earthquakes, explosion, mob violence, riot, inability to procure or general
sabotage or rationing of labor, equipment, facilities, sources of energy,
material or supplies in the open market, malicious mischief, condemnation, and
unusually severe weather or delays of suppliers or subcontractors due to such
causes or any similar events and/or occurrences beyond the control of the
Trustee; it being understood that the Trustee shall use reasonable efforts which
are consistent with accepted
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practices in the banking industry to resume performance as soon as practicable
under the circumstances.
SECTION 10.19. Consent to Jurisdiction. Any legal suit, action or
proceeding arising out of or based upon this Indenture or the transactions
contemplated hereby ("Related Proceedings") may be instituted in the federal
courts of the United States of America located in the City of New York or the
courts of the State of New York, in each case located in the City of New York,
or in the federal courts of the United States of America located in the City of
Los Angeles or the courts of the State of California, in each case located in
the City of Los Angeles (collectively, the "Specified Courts"), and each party
irrevocably submits to the non-exclusive jurisdiction of such courts in any such
suit, action or proceeding. Service of any process, summons, notice or document
by mail (to the extent allowed under any applicable statute or rule of court) to
such party's address set forth above, or to any agent appointed pursuant to
Section 5.1(i), shall be effective service of process for any suit, action or
other proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action
or other proceeding in the Specified Courts, and they irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such suit, action or other proceeding has been brought in an inconvenient forum.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
XXXXXX.XXX, INC.
By: ____________________________
Name: ______________________
Title: _____________________
THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee
By: ____________________________
Name: ______________________
Title: _____________________
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