EXHIBIT 4.3
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INDENTURE
BETWEEN
ALLSTATE LIFE GLOBAL FUNDING
AND
BANK ONE, NATIONAL ASSOCIATION
DATED AS OF -, 2002
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED..................................................................1
SECTION 1.2 INTERPRETATION........................................................................10
ARTICLE 2
THE NOTES
SECTION 2.1 AMOUNT UNLIMITED......................................................................10
SECTION 2.2 TITLE AND TERMS; NOTE CERTIFICATES....................................................10
SECTION 2.3 FORMS GENERALLY.......................................................................13
SECTION 2.4 CURRENCY; DENOMINATIONS...............................................................13
SECTION 2.5 EXECUTION, AUTHENTICATION, DELIVERY AND DATE..........................................14
SECTION 2.6 REGISTRATION, TRANSFER AND EXCHANGE...................................................15
SECTION 2.7 MUTILATED, DESTROYED, LOST OR STOLEN NOTE CERTIFICATES................................17
SECTION 2.8 INTEREST RECORD DATES.................................................................18
SECTION 2.9 CANCELLATION..........................................................................18
SECTION 2.10 GLOBAL SECURITIES.....................................................................19
SECTION 2.11 WITHHOLDING TAX.......................................................................20
SECTION 2.12 TAX TREATMENT.........................................................................21
ARTICLE 3
REDEMPTION, REPAYMENT AND REPURCHASE OF NOTES; SINKING FUNDS
SECTION 3.1 REDEMPTION OF NOTES...................................................................21
SECTION 3.2 REPAYMENT AT THE OPTION OF THE HOLDER.................................................25
SECTION 3.3 REPURCHASE OF NOTES...................................................................26
SECTION 3.4 SINKING FUNDS.........................................................................26
ARTICLE 4
PAYMENTS; PAYING AGENTS AND CALCULATION AGENT; COVENANTS
SECTION 4.1 PAYMENT OF PRINCIPAL AND INTEREST.....................................................26
SECTION 4.2 OFFICES FOR PAYMENTS, ETC.............................................................29
SECTION 4.3 PAYMENT DATE NOT A BUSINESS DAY.......................................................29
SECTION 4.4 APPOINTMENT TO FILL A VACANCY IN OFFICE OF INDENTURE TRUSTEE..........................30
SECTION 4.5 PAYING AGENTS.........................................................................30
SECTION 4.6 CALCULATION AGENT.....................................................................33
SECTION 4.7 CERTIFICATE TO INDENTURE TRUSTEE......................................................36
SECTION 4.8 NEGATIVE COVENANTS....................................................................36
SECTION 4.9 ADDITIONAL AMOUNTS....................................................................38
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ARTICLE 5
REMEDIES OF THE
INDENTURE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY; WAIVER OF DEFAULT.................40
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY
INDENTURE TRUSTEE;
INDENTURE TRUSTEE MAY PROVE DEBT.....43
SECTION 5.3 APPLICATION OF PROCEEDS...............................................................46
SECTION 5.4 SUITS FOR ENFORCEMENT.................................................................47
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS...................................47
SECTION 5.6 LIMITATIONS ON SUITS BY HOLDERS.......................................................47
SECTION 5.7 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT...............48
SECTION 5.8 CONTROL BY THE HOLDERS................................................................49
SECTION 5.9 WAIVER OF PAST DEFAULTS...............................................................49
ARTICLE 6
THE
INDENTURE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES...................................................50
SECTION 6.2 CERTAIN RIGHTS OF THE
INDENTURE TRUSTEE...............................................51
SECTION 6.3 NOT RESPONSIBLE FOR RECITALS, VALIDITY OF THE NOTES OR APPLICATION OF THE PROCEEDS....52
SECTION 6.4 MAY HOLD NOTES; COLLECTIONS, ETC......................................................52
SECTION 6.5 FUNDS HELD BY
INDENTURE TRUSTEE.......................................................53
SECTION 6.6 COMPENSATION; REIMBURSEMENT; INDEMNIFICATION..........................................53
SECTION 6.7 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY...............................................54
SECTION 6.8 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE.............................54
SECTION 6.9 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE........................................56
SECTION 6.10 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF
INDENTURE TRUSTEE......57
SECTION 6.11 LIMITATIONS ON RIGHTS OF INDENTURE TRUSTEE AS CREDITOR................................57
ARTICLE 7
HOLDERS LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER
SECTION 7.1 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF HOLDERS....................58
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.................................58
SECTION 7.3 REPORTS BY INDENTURE TRUSTEE..........................................................58
SECTION 7.4 REPORTS BY ISSUER.....................................................................59
ARTICLE 8
CONCERNING EACH HOLDER
SECTION 8.1 EVIDENCE OF ACTION TAKEN BY A HOLDER..................................................60
SECTION 8.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF NOTES.............................61
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SECTION 8.3 VOTING RECORD DATE....................................................................61
SECTION 8.4 PERSONS DEEMED TO BE OWNERS...........................................................61
SECTION 8.5 NOTES OWNED BY ISSUER DEEMED NOT OUTSTANDING..........................................61
SECTION 8.6 RIGHT OF REVOCATION OF ACTION TAKEN; BINDING EFFECT OF ACTIONS BY HOLDERS.............62
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS....................................63
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.......................................64
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL INDENTURE.................65
SECTION 9.4 DOCUMENTS TO BE GIVEN TO INDENTURE TRUSTEE............................................65
SECTION 9.5 NOTATION ON NOTE CERTIFICATES IN RESPECT OF SUPPLEMENTAL INDENTURES...................65
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 ISSUER MAY NOT MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY............................66
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS
SECTION 11.1 SATISFACTION AND DISCHARGE OF INDENTURE...............................................66
SECTION 11.2 APPLICATION BY INDENTURE TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF NOTES..............67
SECTION 11.3 REPAYMENT OF FUNDS HELD BY PAYING AGENT...............................................67
SECTION 11.4 RETURN OF FUNDS HELD BY INDENTURE TRUSTEE AND PAYING AGENT............................67
ARTICLE 12
MEETINGS OF HOLDERS OF NOTES
SECTION 12.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.............................................68
SECTION 12.2 CALL, NOTICE AND PLACE OF MEETINGS....................................................68
SECTION 12.3 PERSONS ENTITLED TO VOTE AT MEETINGS..................................................68
SECTION 12.4 QUORUM; ACTION........................................................................69
SECTION 12.5 DETERMINATION OF VOTING RIGHTS; CONDUCT OF ADJOURNMENT OF MEETINGS....................70
SECTION 12.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.......................................71
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1 NO RECOURSE...........................................................................71
SECTION 13.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS...................72
SECTION 13.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE...................................72
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SECTION 13.4 NOTICES AND DEMANDS ON ISSUER, INDENTURE TRUSTEE AND ANY HOLDER.......................72
SECTION 13.5 ISSUER'S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE CONTAINED THEREIN.....73
SECTION 13.6 GOVERNING LAW.........................................................................74
SECTION 13.7 COUNTERPARTS..........................................................................75
SECTION 13.8 CONCERNING THE DELAWARE TRUSTEE.......................................................75
SECTION 13.9 EFFECT OF HEADINGS....................................................................75
SECTION 13.10 TRUST INDENTURE ACT TO CONTROL........................................................75
SECTION 13.11 JUDGMENT CURRENCY.....................................................................75
ARTICLE 14
SECURITY INTEREST
SECTION 14.1 SECURITY INTEREST.....................................................................76
SECTION 14.2 REPRESENTATIONS AND WARRANTIES........................................................77
SECTION 14.3 FURTHER ASSURANCES; COVENANTS.........................................................78
SECTION 14.4 GENERAL AUTHORITY.....................................................................79
SECTION 14.5 REMEDIES UPON EVENT OF DEFAULT........................................................80
SECTION 14.6 LIMITATION ON DUTIES OF INDENTURE TRUSTEE WITH RESPECT TO COLLATERAL..................81
SECTION 14.7 CONCERNING THE INDENTURE TRUSTEE......................................................81
SECTION 14.8 TERMINATION OF SECURITY INTEREST......................................................81
EXHIBIT A-1 FORM OF GLOBAL SECURITY
EXHIBIT A-2 FORM OF DEFINITIVE SECURITY
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RECONCILIATION TABLE
Trust Indenture Act Section Indenture Section
Section 310(a)(1).......................................................................................6.7
(a)(2).................................................................................................6.7
(b)....................................................................................................6.8
Section 311(a).........................................................................................6.12
Section 312(a)..........................................................................................7.1
(b)....................................................................................................7.2
(c)....................................................................................................7.2
Section 313(a).......................................................................................7.3(c)
(b)(2).................................................................................................7.3
(c)....................................................................................................7.3
(d)....................................................................................................7.3
Section 314(a)..........................................................................................7.4
(b)....................................................................................................7.3
(c)(1).............................................................................................13.5(a)
(c)(2).............................................................................................13.5(a)
(e)................................................................................................13.5(b)
(f)................................................................................................13.5(a)
Section 316(a) (last sentence) .........................................................................8.5
(a)(1)(A)..............................................................................................5.8
(a)(1)(B)..............................................................................................5.9
(b)....................................................................................................5.6
Section 317(a)(1)....................................................................................5.2(c)
(a)(2)..............................................................................................5.2(c)
(b).................................................................................................4.5(a)
Section 318(a)........................................................................................13.10
This reconciliation table shall not be deemed to be part of the Indenture
for any purpose.
THIS INDENTURE, dated as of -, 2002 between
Allstate Life Global
Funding, a statutory trust organized in series under the laws of the State of
Delaware and acting hereunder with respect to each series of the Trust (the
"ISSUER"), and Bank One, National Association, as indenture trustee (the
"INDENTURE TRUSTEE"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
senior secured notes to be issued in one or more series (the "NOTES") up to the
principal amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture;
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms, have been done;
NOW, THEREFORE, in consideration of the premises and the purchases of
the Notes by each Holder thereof, the Issuer and the Indenture Trustee mutually
covenant and agree for the equal and proportionate benefit of each Holder from
time to time of the Notes as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms shall have
the meanings specified in this Section for all purposes of this Indenture and
the Notes, unless otherwise expressly provided. All other terms used in this
Indenture which are defined in the Trust Indenture Act or which are by reference
therein defined in the Securities Act shall have the meanings (except as herein
otherwise expressly provided or unless the context otherwise clearly requires)
assigned to such terms in the Trust Indenture Act and in the Securities Act as
in force at the date of this Indenture as originally executed.
"ADDITIONAL AMOUNTS" means any additional amounts which may be
required by any Notes of a series, under circumstances specified in a Note
Certificate or Supplemental Indenture for such series, to be paid by the Issuer
in respect of certain taxes, assessments or other governmental charges imposed
on Holders specified therein and which are owing to such Holders.
"ADMINISTRATIVE AGREEMENT" means that certain administrative services
agreement dated as of June 24, 2002 by and between the Issuer and the
Administrator, as the same may be amended, modified, restated, supplemental
and/or replaced from time to time.
"ADMINISTRATOR" means AMACAR Pacific Corp., a Delaware corporation, in
its capacity as the sole administrator of the Issuer generally and with respect
to each series of the Issuer, and its permitted successors and assigns.
"AFFILIATE" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as applied to
any Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of that Person, whether
through the ownership of voting securities or by contract or otherwise.
"AGENT" has the meaning ascribed in the relevant Distribution
Agreement.
"BOOK-ENTRY NOTE" means a Note the registered ownership of which is
represented by a Global Security.
"BUSINESS DAY" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New York;
provided, however, that, with respect to Foreign Currency Notes, the day must
also not be a day on which commercial banks are authorized or required by law,
regulation or executive order to close in the Principal Financial Center of the
country issuing the Specified Currency (or, if the Specified Currency is Euro,
the day must also be a day on which the Target System is open); provided,
further, that, with respect to Notes as to which LIBOR is an applicable Interest
Rate Basis, the day must also be a London Banking Day (as defined below).
"CALCULATION AGENT" means the Indenture Trustee in its capacity as
calculation agent and its successors, and each other Person specified as
calculation agent with respect to any Notes in an applicable Note Certificate or
Supplemental Indenture.
"CERTIFICATED NOTE" means a Note represented by a Definitive Security.
"CLEARING CORPORATION" means, with respect to any series of Notes,
DTC, or any other clearing system specified in each applicable Note Certificate
or Supplemental Indenture and their respective successors and "CLEARING
CORPORATIONS" means all of the foregoing.
"CODE" means the United States Internal Revenue Code of 1986, as
amended, including any successor statutes and any applicable rules, regulations,
notices or orders promulgated thereunder.
"COLLATERAL" means, with respect to any series of Notes, (i) each
Funding Agreement from time to time issued by the Funding Agreement Provider and
securing such series of Notes, whether owned at the time of issuance of such
series of Notes or thereafter acquired by the Issuer, including all benefits,
rights, privileges and options thereunder, (ii) any other collateral specified
in the applicable Note Certificate or Supplemental Indenture, (iii) all Proceeds
in respect of each such Funding Agreement, and (iv) all books and records
(including without limitation, computer programs, printouts and other computer
materials and files) of the Issuer pertaining to the foregoing, as described in
each Note Certificate or Supplemental Indenture with respect to such series of
Notes.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the
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duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"CORPORATE TRUST OFFICE" means the office of the Indenture Trustee at
which this Indenture shall, at any particular time, be principally administered,
which office is, at the date as of which this Indenture is dated, located at 1
Bank Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000-0000, except that for
the purposes of Section 4.1(f) it shall be 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx
Xxxx Entrance, Xxx Xxxx, Xxx Xxxx 00000.
"DEBT" of any Person means, at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all contingent and
non-contingent obligations of such Person to reimburse any bank or other Person
in respect of amounts paid under a letter of credit or similar instrument, (vi)
all Debt secured by a Lien on any asset of such Person, whether or not such Debt
is otherwise an obligation of such Person, and (vii) all Guarantees by such
Person of Debt of another Person (each such Guarantee to constitute Debt in an
amount equal to the amount of such other Person's Debt Guaranteed thereby).
"DEFAULTED INTEREST" has the meaning specified in Section 2.8(b).
"DEFINITIVE SECURITY" means any Note Certificate which is not a Global
Security.
"DELAWARE TRUSTEE" means Wilmington Trust Company, a Delaware banking
corporation not in its individual capacity but solely as trustee and its
successors.
"DEPOSIT" has the meaning ascribed in the Trust Agreement.
"DEPOSITARY" shall mean, with respect to the Notes of any series
represented by one or more Global Securities, the Clearing Corporation or its
agent or nominee designated as Depositary by the Company pursuant to Section
2.10 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "DEPOSITARY" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "DEPOSITARY" as used with respect to the
Notes of any such series shall mean the Depositary with respect to the Notes of
that series. Each Depositary must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
"DISCOUNT" means, with respect to any Discount Notes, the difference
between the Issue Price and the principal amount of such Discount Notes.
"DISCOUNT NOTES" shall mean any Notes that have an Issue Price that is
less than 100% of the principal amount thereof by more than a percentage equal
to the product of 0.25% and the number of full years to the Stated Maturity.
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"DISTRIBUTION AGREEMENT" means one or more distribution agreements
entered into by and among the Issuer and each Agent named therein and
subsequently added as a party to such agreement, as the same may be amended from
time to time.
"DTC" means The Depository Trust Company and its successors.
"ENTITLEMENT HOLDER" means any Person in whose name Notes are credited
to a securities account maintained in the name of such Person on the books and
records of a Clearing Corporation or other Securities Intermediary.
"EURO" means the currency introduced at the start of the third stage
of the European economic and monetary union pursuant to the treaty establishing
the European Community, as amended by the Treaty on European Union.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.1 which shall have continued for the period of time, if any, therein
designated.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE EVENT" has the meaning set forth in Section 2.10(b).
"EXCHANGE RATE AGENT" has the meaning set forth in Section 4.1(c).
"FOREIGN CURRENCY NOTE" means a Note the Specified Currency of which
is other than U.S. Dollars.
"FUNDING AGREEMENT" means each funding agreement between the Funding
Agreement Provider and Issuer issued from time to time by the Funding Agreement
Provider up to the principal amount or amounts as may from time to time be
authorized by the Funding Agreement Provider and subsequently assigned by the
Issuer to the Indenture Trustee, as any of the same shall be amended from time
to time.
"FUNDING AGREEMENT PROVIDER" means Allstate Life Insurance Company, a
life insurance company organized under the laws of the State of Illinois.
"GLOBAL SECURITY" means a single Note Certificate deposited with the
Depositary and registered in the name of a Clearing Corporation or its agent or
nominee representing the entire issue of Book-Entry Notes of any series, or if
the rules of the applicable Clearing Corporation or the applicable securities
laws or regulations of any jurisdiction limit the maximum principal amount of
Note Certificates, each of the minimum number of Note Certificates so deposited
and registered that are required to comply with such laws, regulations and rules
while representing in the aggregate the entire issue of Book-Entry Notes of any
series.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, 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
Debt (whether arising by virtue of partnership arrangements, by virtue of an
4
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise), (ii)
to reimburse a bank for amounts drawn under a letter of credit for the purpose
of paying such Debt or (iii) entered into for the purpose of assuring in any
other manner the holder of such Debt of the payment thereof or to protect such
holder against loss in respect thereof (in whole or in part); PROVIDED 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.
"HOLDER" means, with respect to any Note, (i) any Person who has
possession of the Note Certificate representing such Note if such Note is
registered in the name of such Person in the applicable Note Register or (ii) if
there is no such Person, any Person in whose name such Note is registered in the
applicable Note Register.
"INCORPORATED PROVISION" has the meaning set forth in Section 13.10.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the terms of particular series of Notes established
as contemplated hereby.
"INDENTURE TRUSTEE" means the entity identified as "Indenture Trustee"
in the first paragraph hereof and, subject to the provisions of Article 6, shall
also include any successor Indenture Trustee.
"INITIAL REDEMPTION DATE" means, with respect to any Note or portion
thereof to be redeemed pursuant to Section 3.1(b), the date on or after which
such Note or portion thereof may be redeemed as determined by or pursuant to
this Indenture or an applicable Note Certificate of Supplemental Indenture.
"INTEREST", (i) with respect to any Discount Note which by its terms
bears interest only after maturity, means interest payable after maturity; and
(ii) with respect to any Note that is not a Discount Note, means interest on
such Note.
"INTEREST PAYMENT DATE" has the meaning specified in Section 2.8(a).
"ISSUE PRICE" means, with respect to any Notes, the issue price of
such Notes specified in each applicable Note Certificate or Supplemental
Indenture.
"ISSUER" means
Allstate Life Global Funding, a statutory trust
organized in series under the laws of the State of Delaware, and, subject to
Article 10 hereof, its successors and assigns.
"ISSUER'S CERTIFICATE" means a certificate signed by the Administrator
on behalf of the Issuer and delivered to the Indenture Trustee. Each such
certificate shall include the statements provided for in Section 13.5.
"LIBOR", with respect to a series of Notes, has the meaning ascribed
in an applicable Note Certificate or Supplemental Indenture.
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"LIBOR CURRENCY" means the currency specified in an applicable Note
Certificate or Supplemental Indenture as to which LIBOR shall be calculated or,
if no currency is specified in the applicable Note Certificate or Supplemental
Indenture, United States dollars.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect as a
security interest, in respect of such asset. For purposes hereof, the Issuer
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"LONDON BANKING DAY" means a day on which commercial banks are open
for business (including dealings in the LIBOR Currency) in London.
"MARKET EXCHANGE RATE" for a Specified Currency other than United
States dollars means the noon dollar buying rate in The City of New York for
cable transfers for the Specified Currency as certified for customs purposes
(or, if not so certified, as otherwise determined) by the Federal Reserve Bank
of New York.
"MATURITY DATE" means, with respect to the principal (or any
installment of principal) of a series of Notes, any date prior to the Stated
Maturity Date on which such principal (or such installment of principal) of such
series of Notes becomes due and payable whether, as applicable, by the
declaration of acceleration of maturity, notice of redemption at the option of
the Issuer, notice of the Holder's option to elect repayment or otherwise.
"NONRECOURSE PARTIES" has the meaning set forth in Section 13.1.
"NOTE" has the meaning stated in the first recital of this Indenture,
each in an authorized denomination and represented individually or collectively
by a Note Certificate authenticated and delivered under this Indenture.
"NOTE CERTIFICATE" means a security certificate representing one or
more Notes.
"NOTE REGISTER" has the meaning set forth in Section 2.6(a).
"OBLIGATIONS" means, with respect to a series of Notes, the
obligations of the Issuer secured under such series of Notes and this Indenture,
including (a) all principal of, any premium and interest (including, without
limitation, any interest which accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency or
reorganization of the Issuer, whether or not allowed or allowable as a claim in
any such proceeding) on, and any Additional Amounts with respect to, such series
of Notes or pursuant to this Indenture, (b) all other amounts payable by the
Issuer hereunder or under such series of Notes including all costs and expenses
(including attorneys' fees) incurred by the Indenture Trustee or any Holder
thereof in realizing on the Collateral to satisfy such obligations and (c) any
renewals or extensions of the foregoing.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer or the Indenture
Trustee or who may be other
6
counsel satisfactory to the Indenture Trustee. Each such opinion shall include
the statements provided for in Section 13.5 hereof, if and to the extent
required hereby.
"OUTSTANDING", when used with reference to any series of Notes, shall,
subject to the provisions of Section 8.5, mean, as of any particular time, all
Notes represented by Note Certificates with respect to such series executed by
the Issuer and authenticated and delivered by the Indenture Trustee under this
Indenture, except (a) any Note represented by a Note Certificate theretofore
cancelled by the Indenture Trustee or delivered to the Indenture Trustee for
cancellation; (b) any Note as to which funds for the full payment or redemption
of which in the necessary amount shall have been deposited in trust with the
Indenture Trustee or with any Paying Agent (other than the Issuer) or shall have
been set aside, segregated and held in trust by the Issuer (if the Issuer shall
act as its own paying agent); PROVIDED that if such Note is to be redeemed prior
to the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Indenture Trustee shall have
been made for giving such notice; and (c) any Note represented by a Note
Certificate in substitution for which one or more other Note Certificates shall
have been authenticated and delivered pursuant to the terms of Section 2.5 or
which shall have been paid (unless proof satisfactory to the Indenture Trustee
is presented that any of such Note is held by a Person in whose hands such Note
is a legal, valid and binding obligation of the Issuer).
"OWNER" shall, with respect to each Funding Agreement, have the
meaning specified in such Funding Agreement.
"PAYING AGENT" means the Indenture Trustee in its capacity as paying
agent and its successors, and any other Person specified as paying agent with
respect to any Notes in an applicable Note Certificate or Supplemental
Indenture.
"PERSON" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
limited liability company, trust (including any beneficiary thereof), bank,
trust company, land trust, trust or other organization, whether or not a legal
entity, and any government or any agency or political subdivision thereof.
"PLAN" means a pension, profit-sharing or other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), an individual retirement account or a Xxxxx plan subject to Section
4975 of the Code.
"PLAN ASSET ENTITY" means any entity whose underlying assets include
"plan assets" by reason of any Plan's investment in the entity.
"PRINCIPAL" (i) with respect to Discount Notes, means such amount as
shall be due and payable as specified in the terms of the applicable Discount
Notes; and (ii) with respect to any Note that is not a Discount Note, means the
principal of such Note.
"PRINCIPAL FINANCIAL CENTER" means, as applicable (i) the capital city
of the country issuing the Specified Currency; or (ii) the capital city of the
country to which the LIBOR Currency relates; provided, however, that with
respect to United States dollars, Australian dollars, Canadian dollars,
Portuguese escudos, South African and Swiss francs, the "Principal
7
Financial Center" shall be The City of New York, Sydney, Toronto, London (solely
in the case of the LIBOR Currency), Johannesburg and Zurich, respectively.
"PROCEEDS" means all of the proceeds of, and all other profits,
products, rents, principal payments, interest payments or other receipts, in
whatever form, arising from the collection, sale, lease, exchange, assignment,
licensing or other disposition or maturity of, or other realization upon, a
Funding Agreement, including without limitation all claims of the Issuer against
third parties for loss of, damage to or destruction of, or for proceeds payable
under, such Funding Agreement, in each case whether now existing or hereafter
arising.
"REDEMPTION DATE" means, with respect to any Note to be redeemed,
pursuant to Section 3.1(b) or Section 3.1(c), the date of redemption of such
Note specified in the relevant notice of redemption provided to the Indenture
Trustee pursuant to Section 3.1(d).
"REDEMPTION PRICE" means, with respect to any Note or portion thereof
to be redeemed, pursuant to Section 3.1(b) or Section 3.1(c), the price for
redemption of such Note or portion thereof as determined by or pursuant to this
Indenture or an applicable Note Certificate or Supplemental Indenture.
"REGISTRAR" has the meaning specified in Section 2.6(a).
"REGULAR INTEREST RECORD DATE" has the meaning set forth in Section
2.8.
"REPAYMENT DATE" means, with respect to any Note or portion thereof to
be repaid pursuant to Section 3.2, the date for the repayment of such Note or
portion thereof as determined by or pursuant to this Indenture or an applicable
Note Certificate or Supplemental Indenture.
"REPAYMENT PRICE" means, with respect to any Note or portion thereof
to be repaid pursuant to Section 3.2, the price for repayment of such Note or
portion thereof as determined by, or pursuant to, this Indenture or an
applicable Note Certificate or Supplemental Indenture.
"RESPONSIBLE OFFICER" when used with respect to any Person means the
chairman of the board of directors or any vice chairman of the board of
directors or the president or any vice president (whether or not designated by a
number or numbers or a word or words added before or after the title "vice
president") of such Person. With respect to the Issuer, Responsible Officer
means any Responsible Officer (as defined in the preceding sentence) plus any
assistant secretary and any financial services officer of the Delaware Trustee
or Administrator, and with respect to the Indenture Trustee, Responsible Officer
means any Responsible Officer (as defined in the first sentence of this
definition) plus the chairman of the trust committee, the chairman of the
executive committee, any vice chairman of the executive committee, the cashier,
the secretary, the treasurer, any trust officer, any assistant trust officer,
any assistant vice president, any assistant cashier, any assistant secretary,
any assistant treasurer, or any other authorized officer of the Indenture
Trustee customarily performing functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
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"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES INTERMEDIARY" means any Person, including any Clearing
Corporation, bank or broker, that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity.
"SECURITY INTEREST" has the meaning set forth in Section 14.1.
"SERIES BENEFICIAL OWNER" means with respect to a series of Notes of
the Issuer, the sole beneficial owner of such series of the Issuer as defined
and used in Sections 3801(b) and 3806(b)(2) of the Delaware Statutory Trust Act,
and its successors.
"SPECIAL INTEREST RECORD DATE" has the meaning set forth in Section
2.8(b).
"SPECIFIED CURRENCY" has the meaning specified in Section 2.4.
"STATED MATURITY DATE," means with respect to any Note, any
installment of principal thereof, or interest thereon, any premium thereon or
any Additional Amounts with respect thereto, the date established by or pursuant
to this Indenture or an applicable Note Certificate or Supplemental Indenture as
the date on which the principal of such Note or such installment of principal or
interest or such premium is, or such Additional Amounts are, due and payable.
"SUPPLEMENTAL INDENTURE" has the meaning specified in Section 9.1.
"SUPPORT AND EXPENSES AGREEMENT" means that certain support and
expenses agreement dated as of June 24, 2002, by and between the Funding
Agreement Provider and the Issuer, as the same may be amended from time to time.
"TARGET SYSTEM" means the Trans-European Automated Real Time Gross
Settlement Express Transfer (TARGET) System.
"TAX EVENT" has the meaning specified in Section 3.1(c).
"TRUST AGREEMENT" means that certain Trust Agreement dated as of June
24, 2002 declaring and establishing the Issuer, by and between the Trust
Beneficial Owner and the Delaware Trustee, as amended by the Amended and
Restated Trust Agreement dated -, as the same may be amended, modified,
restated, supplemented and/or replaced from time to time.
"TRUST BENEFICIAL OWNER" means AMACAR Pacific Corp., a Delaware
corporation, in its capacity as the sole beneficial owner of the Trust and its
successors.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, as
amended.
"UCC" means, with respect to any applicable jurisdiction, the Uniform
Commercial Code as in effect from time to time in the applicable jurisdiction.
9
"UNITED STATES", except as otherwise provided in or pursuant to this
Indenture or any Note Certificate, means the United States of America (including
the states thereof and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"UNITED STATES DOLLARS", "U.S. DOLLARS" or "$" means lawful currency
of the United States.
SECTION 1.2 INTERPRETATION. For all purposes of this Indenture
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article shall have the meanings
ascribed to them in this Article and shall include the plural as
well as the singular;
(b) all accounting terms used and not expressly defined herein shall
have the meanings given to them in accordance with United States
generally accepted accounting principles, and the term "generally
accepted accounting principles" shall mean such accounting
principles which are generally accepted at the date or time of
any computation or at the date hereof;
(c) references to Exhibits, Articles, Sections, paragraphs,
subparagraphs and clauses shall be construed as references to the
Exhibits, Articles, Sections, paragraphs, subparagraphs and
clauses of this Indenture;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) the words "include", "includes" and "including" shall be
construed to be followed by the words "without limitation"; and
(f) Article and Section headings are for the convenience of the
reader and shall not be considered in interpreting this Indenture
or the intent of the parties hereto.
ARTICLE 2
THE NOTES
SECTION 2.1 AMOUNT UNLIMITED. The aggregate principal amount of
Notes that may be authenticated and delivered under this Indenture is unlimited.
SECTION 2.2 TITLE AND TERMS; NOTE CERTIFICATES.
(a) The Notes may be issued in one or more series, each as set forth
in a Note Certificate. Each such Note Certificate shall set
forth:
(i) the title of the Notes of the series (which shall
distinguish the Notes of the series from all other Notes);
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(ii) any limit on the aggregate principal amount of the Notes
of the series that may be issued under this Indenture
(except for any Notes of the series represented by any
Note Certificates authenticated and delivered upon
registration of transfer of any Notes, or in exchange for,
or in lieu of, other Note Certificates, pursuant to
Sections 2.6, 2.7, 2.10 or 9.5);
(iii) if such Notes are to be issued as Book-Entry Notes
represented by one or more Global Securities, when any of
such Notes are to be issued as Book-Entry Notes and (A)
whether such Book-Entry Notes may be exchanged for
Certificated Notes of the same series and of like tenor
and of any authorized form and denomination, and the
circumstances under which any such exchanges may occur, if
other than in the manner specified in Section 2.10, (B)
the name of the Depositary with respect to any Global
Security and (C) the name of the applicable Clearing
Corporation, if other than DTC;
(iv) the date or dates on which the principal of the Notes of
the series is payable, including pursuant to the exercise
of any right or obligation of redemption or repayment;
(v) the rate or rates at which the Notes of the series shall
bear interest, if any, or the method by which such rate
shall be determined, the date or dates from which such
interest shall accrue, the interest payment dates on which
such interest shall be payable and the record dates for
the determination of the Holder or Holders to whom
interest is payable; and if the Notes of the series
provide for Additional Amounts, the method by which such
Additional Amounts are determined and paid;
(vi) the place or places where the principal of, any premium
and interest on, and any Additional Amounts with respect
to, Notes of the series shall be payable, where any Note
Certificates representing Notes of such series may be
surrendered for registration of transfer of any such
Notes, where any of such Note Certificates may be
surrendered for exchange and where notices or demands to
or upon the Issuer in respect of such Notes and this
Indenture may be served (in each case, if other than as
provided in Section 4.2);
(vii) the right, if any, of the Issuer to redeem Notes, in whole
or part, at its option and the period or periods within
which, the price or prices at which, and the terms and
conditions upon which, Notes of the series may be redeemed
pursuant to any sinking fund or otherwise;
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(viii) the right or obligation, if any, of the Issuer to redeem,
purchase or repay Notes of the series at the option of the
Issuer, or pursuant to Tax Event, any mandatory redemption
sinking fund or analogous provisions, or at the option of
a Holder thereof or otherwise and the period or periods
within which, the price or prices at which, and the terms
and conditions upon which, Notes of the series shall be
redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(ix) the authorized denominations in which the Notes of the
series shall be issuable, if other than $1,000 and
integral multiples of $1,000;
(x) the currency in which payment of the principal of,
interest and premium on, and Additional Amounts with
respect to, any of such Notes shall be payable, if other
than U.S. dollars;
(xi) whether the amount of payments of principal of, premium
and interest on, and Additional Amounts with respect to,
such Notes may be determined with reference to an index,
formula or other method or methods and, if so, the terms
and conditions upon which and the manner in which such
amounts shall be determined and paid or payable;
(xii) if the Notes are to be listed on one or more stock
exchanges, the name or names of such exchanges;
(xiii) if other than the principal amount thereof, the portion of
the principal amount of the Notes of the series which
shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 5.1 or provable in
bankruptcy pursuant to Section 5.2;
(xiv) a description of the Collateral securing the Obligations
with respect to the Notes of such series;
(xv) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(xvi) any trustees, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to
the Notes of such series (in each case, if other than as
provided in this Indenture).
(b) All Notes of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided
in each applicable Note Certificate or pursuant to an applicable
Supplemental Indenture.
(c) The Issuer may, within six months following the issue of a series
of Notes and without the consent of any Holder, issue additional
Notes with the same terms as previously issued Notes (other than
the date of issuance, the
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denomination sizes, the interest commencement date and the
offering price) that will form a single series with the
previously issued Notes; PROVIDED, HOWEVER, prior to or
simultaneously with the issuance of any such additional Notes,
the Funding Agreement Provider has issued or will simultaneously
issue one or more additional Funding Agreements to the Issuer to
be part of the applicable series Collateral, with an aggregate
principal amount equal to that of the additional Notes issued or
to be issued.
SECTION 2.3 FORMS GENERALLY.
(a) Each Note Certificate, and each of the Indenture Trustee's
certificates of authentication, shall be in a form not
inconsistent with the provisions of this Indenture, including,
without limitation, Exhibit A-1 and Exhibit A-2 or as established
by any Supplemental Indenture. Any Note Certificate or
certificate of authentication shall include such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or as may in the Issuer's
judgment be necessary, appropriate or convenient to permit the
Notes to be issued and sold, or to comply, or facilitate
compliance, with applicable laws, and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the
rules of any securities exchange on which the Notes may be
listed, or as may, consistently herewith, be determined by the
Responsible Officer of the Issuer executing such Note
Certificates, with the approval of the Indenture Trustee, as
evidenced by his or her execution thereof.
(b) Note Certificates may be printed, lithographed, engraved,
typewritten, photocopied or otherwise produced in any manner as
the Responsible Officer of the Issuer executing such Notes may
determine.
(c) The terms and provisions contained in the Note Certificates and
in any Supplemental Indenture shall constitute, and are hereby
expressly made, a part of this Indenture and to the extent
applicable the Issuer and the Indenture Trustee, by their
execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby.
SECTION 2.4 CURRENCY; DENOMINATIONS.
(a) Unless otherwise specified in the Note Certificates or in any
Supplemental Indenture for any series of Notes, Notes of such
series will be denominated in, and payments of principal of,
premium and interest on, and Additional Amounts in respect to,
the Notes of such series will be made in, U.S. dollars. The
currency in which a particular series of Notes is denominated
(or, if such currency is no longer legal tender for the payment
of public and private debts in the country issuing such currency
or, in the case of Euro, in the member states of the European
Union that
13
have adopted the single currency in accordance with the Treaty
establishing the European Community, as amended by the Treaty on
European Union, such currency which is then such legal tender) is
herein referred to as the "SPECIFIED CURRENCY" with respect to
such series of Notes.
(b) If the principal of or premium and interest on, and Additional
Amounts with respect to, any Note is payable in a Specified
Currency other than U.S. dollars which is not available due to
the imposition of exchange controls or other circumstances beyond
the control of the Issuer, the Issuer shall be entitled to
satisfy its obligations to holders of the Notes by making such
payment in U.S. dollars on the basis of the most recently
available bid quotation determined on the applicable
determination date related to such payment from a leading foreign
exchange bank in London or New York City selected by the Paying
Agent, for the purchase of U.S. dollars with the Specified
Currency for settlement on such payment date of the aggregate
amount of the Specified Currency payable to all holders of Notes
denominated other than in U.S. dollars scheduled to receive U.S.
Dollar payments.
(c) Unless otherwise specified in the applicable Note Certificates or
in a Supplemental Indenture, Notes of any series shall be issued
in minimum denominations of $1,000 and integral multiples of
$1,000 in excess thereof or equivalent denominations in other
currencies.
(d) The Issuer may (if so specified in an applicable Note Certificate
or Supplemental Indenture) without the consent of the Holder of
any Note, redenominate all, but not less than all, of the Notes
of any series on or after the date on which the member state of
the European Union in whose national currency such Notes are
denominated has become a participant member in the third stage of
the European economic and monetary union as more fully set out in
the applicable Note Certificate or Supplemental Indenture.
(e) Unless otherwise specified in an applicable Note Certificate or
Supplemental Indenture, the Issuer shall not sell Foreign
Currency Notes in, or to residents of, the country issuing the
Specified Currency.
SECTION 2.5 EXECUTION, AUTHENTICATION, DELIVERY AND DATE.
(a) Each Note Certificate shall be executed on behalf of the Issuer
by any Responsible Officer of the Issuer. The signature of any
Responsible Officer of the Issuer may be manual, in facsimile
form, imprinted or otherwise reproduced and may, but need not, be
attested.
(b) Each Note Certificate bearing the signature of a Person who was
at any time a Responsible Officer of the Issuer shall bind the
Issuer,
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notwithstanding that such Person has ceased to hold such office
prior to the authentication and delivery of such Note Certificate
or did not hold such office at the date of such Note Certificate.
(c) At any time, and from time to time, after the execution and
delivery of this Indenture, the Issuer may deliver Note
Certificates representing Notes of any series executed by or on
behalf of the Issuer to the Indenture Trustee for authentication,
and the Indenture Trustee shall thereupon authenticate and
deliver such Note Certificates as provided in this Indenture and
not otherwise.
(d) The Indenture Trustee shall have the right to decline to
authenticate and deliver any Note Certificates under this Section
if the Indenture Trustee has obtained an Opinion of Counsel
reasonably acceptable to the Issuer, to the effect that the issue
of the Notes represented by such Note Certificates pursuant to
this Indenture will adversely affect the Indenture Trustee's own
rights, duties or immunities under this Indenture.
(e) All Note Certificates shall be dated the date of their
authentication.
(f) No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on
the Note Certificate representing such Note a certificate of
authentication substantially in the form attached as Exhibit B
hereto executed by the Indenture Trustee by manual signature of
one of its authorized signatories. Such certificate upon any Note
Certificate shall be conclusive evidence, and the only evidence,
that such Note Certificate has been duly authenticated and
delivered hereunder.
SECTION 2.6 REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Indenture Trustee will serve initially as registrar (in such
capacity, and together with any successor registrar, the
"REGISTRAR") for the Notes. In such capacity, with respect to
each series of Notes, the Indenture Trustee will cause to be kept
at the Corporate Trust Office of the Indenture Trustee a register
(each, a "NOTE REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Indenture Trustee will
provide for the registration of the Notes of such series and of
transfers of the Notes of such series. Each Note Register shall
be in written form in the English language or in any other form
capable of being converted into such form within a reasonable
time.
(b) Subject to Section 2.10, upon surrender of an applicable Note
Certificate for registration of transfer of any Note represented
thereby, together with the form of transfer endorsed thereon duly
completed and executed, at the designated office of the Registrar
or of any applicable transfer agent, each as provided in an
applicable Note Certificate or Supplemental Indenture,
15
the Issuer shall execute, and the Indenture Trustee shall
authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Note Certificates of
the same series of any authorized denomination representing an
aggregate principal amount of Notes equal to the aggregate
principal amount of the Notes represented by such Note
Certificate surrendered for registration of transfer.
(c) Subject to Section 2.10, at the option of the applicable Holder,
any Note Certificate may be exchanged for one or more new Note
Certificates, and any two or more Note Certificates may be
consolidated into and exchanged for a single Note Certificate or
fewer than the number of Note Certificates duly presented for
exchange, in each case representing one or more Notes of the same
series in an equal aggregate principal amount of the Notes equal
to the aggregate principal amount of the Notes represented by the
Note Certificate or Note Certificates duly presented for
exchange. Each Note Certificate to be exchanged shall be
surrendered at the designated office of the Registrar or of any
applicable transfer agent, each as provided in an applicable Note
Certificate or Supplemental Indenture. Whenever any Note
Certificate is so surrendered for exchange, the Issuer shall
execute, and the Indenture Trustee shall authenticate and
deliver, the Note Certificate or Note Certificates which the
applicable Holder is entitled to receive, bearing numbers,
letters or other designating marks not contemporaneously
outstanding.
(d) Each Note Certificate executed, authenticated and delivered upon
any transfer or exchange shall be a valid obligation of the
Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Note Certificates
surrendered in connection with any such transfer or exchange.
Upon surrender of an applicable Note Certificate transfer or
exchange pursuant to this Section 2.6 each applicable new Note
Certificate will, within three Business Days of the receipt of
the applicable form of transfer or the applicable surrender, as
the case may be, be delivered to the designated office of the
Registrar or of any applicable transfer agent, each as provided
in an applicable Note Certificate or Supplemental Indenture, or
mailed at the risk of the Person entitled to such Note
Certificate to such address as may be specified in the form of
transfer or in written instructions of the applicable Holder upon
surrender for exchange.
(e) Every Note Certificate presented or surrendered in connection
with any transfer or exchange shall (if so required by the Issuer
or the Indenture Trustee) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the
Issuer and the Indenture Trustee duly executed by, the applicable
Holder or his attorney duly authorized in writing.
(f) No service charge shall be made in connection with any transfer
of Notes or exchange of Note Certificates, but the Issuer may
require payment of a
16
sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer of Notes or
exchange of Notes Certificates.
(g) Except as otherwise provided in or pursuant to this Indenture,
the Issuer and the Indenture Trustee shall not be required to (i)
upon presentation or surrender of a Note Certificate in
connection with any transfer or exchange during a period
beginning at the opening of business 15 days before the day of
the selection for redemption of Notes of any applicable series
under Section 3.1 and ending at the close of business on the day
of such selection, exchange any Note Certificate representing any
Note selected for redemption, register the transfer of any such
Note, or portion thereof, except in the case of any Note to be
redeemed in part, with respect to the portion of such Note not to
be redeemed, or (ii) exchange any Note Certificate representing
any Note the Holder or Holders of which shall have exercised the
option pursuant to Section 3.2 to require the Issuer to repay any
such Note prior to its Stated Maturity Date or register the
transfer of any such Note except, in the case of any Note to be
repaid in part, with respect to the portion of such Note not to
be repaid.
SECTION 2.7 MUTILATED, DESTROYED, LOST OR STOLEN NOTE CERTIFICATES.
(a) If (i) any mutilated Note Certificate is surrendered to the
Indenture Trustee or the Issuer, or the Indenture Trustee and the
Issuer receive evidence to their satisfaction of the destruction,
loss or theft of any Note Certificate, and (ii) there is
delivered to the Issuer and the Indenture Trustee such security
or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Issuer or the
Indenture Trustee that such Note Certificate has been acquired by
a protected purchaser, the Issuer shall execute and upon its
request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Note Certificate, a new Note Certificate representing
Notes of the same series of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
(b) If any Note represented by any such mutilated or apparently
destroyed, lost or stolen Note Certificate has become or is about
to become due and payable, the Issuer in its discretion may,
instead of issuing a new Note Certificate, pay the Notes
represented by such Note Certificate.
(c) Upon the execution, authentication and delivery of any new Note
Certificate under this Section, the Issuer may require the Holder
to pay 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 Indenture
Trustee) connected therewith.
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(d) Every Note Certificate executed, authenticated and delivered
pursuant to this Section in lieu of any apparently destroyed,
lost or stolen Note Certificate shall constitute an original
additional contractual obligation of the Issuer, whether or not
any obligation with respect to the apparently destroyed, lost or
stolen Note Certificate shall be at any time enforceable by any
Person, and shall be entitled to all of the benefits of this
Indenture equally and proportionately with any and all other
Notes, if any, of such series duly issued, executed,
authenticated and delivered hereunder.
(e) The provisions of this Section are exclusive with respect to the
replacement of any mutilated or apparently destroyed, lost or
stolen Note Certificate or the payment of the Notes represented
thereby and shall preclude all other rights and remedies with
respect to the replacement of any mutilated or apparently
destroyed, lost or stolen Note Certificate or the payment of the
Notes represented thereby.
SECTION 2.8 INTEREST RECORD DATES.
(a) Interest on and Additional Amounts with respect to any Note of a
series which is payable, on any interest payment date specified
in the Note Certificates or in any Supplemental Indenture for
such series (each such date, an "INTEREST PAYMENT DATE") shall be
paid to the Holder of such Note of such series at the close of
business on the date specified as the regular interest record
date for such series in the Note Certificates or Supplemental
Indenture for such series (the "REGULAR INTEREST RECORD DATE")
or, if no such date is specified, the date that is 15 calendar
days preceding such Interest Payment Date.
(b) Unless otherwise provided in the Note Certificates or in any
Supplemental Indenture for a series of Notes, any interest on,
and any Additional Amounts with respect to, any Note of such
series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date specified in the
applicable Note Certificates or Supplemental Indenture or
indentures (the "DEFAULTED INTEREST") shall forthwith cease to be
payable to the Holder of such Note of such series on the relevant
Regular Interest Record Date by virtue of having been such
Holder, and such Defaulted Interest shall be paid by the Issuer
to the Holder of such Note of such series at the close of
business on a special record date (the "SPECIAL INTEREST RECORD
DATE") established by the Issuer by notice to each applicable
Holder and the Indenture Trustee in accordance with Section 14.4,
which Special Interest Record Date shall be not more than 15 nor
less than 10 days prior to the date of the proposed payment of
Defaulted Interest and not less than 10 days after the receipt by
the Indenture Trustee of the notice of the proposed payment of
Defaulted Interest.
SECTION 2.9 CANCELLATION. Each Note Certificate surrendered for
exchange or in connection with any payment, redemption, transfer of any Note
represented thereby shall be
18
delivered to the Indenture Trustee and, if not already cancelled, shall be
promptly cancelled by it. The Issuer may at any time deliver to the Indenture
Trustee for cancellation any Note Certificate previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and each Note Certificate so delivered shall be promptly cancelled by the
Indenture Trustee. No Note Certificates shall be authenticated in lieu of or in
exchange for any Note Certificate cancelled as provided in this Section, except
as expressly permitted by this Indenture. The Indenture Trustee shall destroy
all cancelled Note Certificates held by it and deliver a certificate of
destruction to the Issuer. If the Issuer shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until each Note Certificate
representing such Notes is delivered to the Indenture Trustee for cancellation.
SECTION 2.10 GLOBAL SECURITIES.
(a) Unless (i) permitted by applicable law and (ii) an Exchange Event
shall have occurred and be continuing with respect to a series of
Book-Entry Notes represented by one or more Global Securities, no
Book-Entry Note represented by any such Global Security shall be
exchangeable for Certificated Notes.
(b) For purposes of this Indenture, with respect to the Notes of a
series, the term "EXCHANGE EVENT" means any of the following:
(i) the Depositary with which any Global Security evidencing
the Notes of such series is deposited shall have notified
the Issuer that it is unwilling or unable to continue as
the Depositary for any applicable Global Security or the
Issuer becomes aware that the Depository has ceased to be
a clearing agency registered under the Exchange Act and,
in any such case, the issuer fails to appoint a successor
to the Depositary within 60 calendar days;
(ii) the Issuer, in its sole discretion, determines that the
Notes of such series should no longer be represented
solely by one or more Global Securities; or
(iii) an Event of Default shall have occurred and the maturity
of the Notes of such series shall have been accelerated in
accordance with the terms of the Indenture and the Notes
of such series.
(c) If any Exchange Event shall have occurred and be continuing,
then:
(i) with respect to each Global Security deposited with, and
registered in the name of, the applicable Depositary or
its nominee, the Issuer shall promptly, and in any event
not later than 10 Business Days after the occurrence of
such Exchange Event, cause to be executed, authenticated
and delivered to the applicable Depositary or its nominee,
against surrender by the applicable Depositary or its
nominee of such Global Security, which shall thereupon be
19
cancelled by the Indenture Trustee, Definitive Security or
Definitive Securities each representing such number of
Notes of such series as may be specified by the applicable
Depositary in an aggregate principal amount equal to the
principal amount of Notes of the same series that shall
have been represented by such Global Security and shall
register the Certificated Notes represented by such
Definitive Security or Definitive Securities in the name
of the applicable Depository or its nominee;
(ii) notwithstanding any other provision of the Notes or this
Indenture, each applicable Depositary may deliver to the
applicable Entitlement Holders or in accordance with their
instructions to any other Person any Definitive Security
or Definitive Securities received from the Issuer pursuant
to Section 2.10(c)(i) hereof, and the Registrar shall
register the Certificated Notes represented by such
Definitive Security or Definitive Securities so delivered
in such names as the applicable Depositary shall specify
to the Indenture Trustee; and
(iii) if any Certificated Note is issued in exchange for any
portion of or all Book-Entry Notes represented by a Global
Security after the close of business at the office or
agency for such Note where such exchange occurs on (A) any
Regular Interest Record Date for such Notes and before the
opening of business at such office or agency on the next
Interest Payment Date, or (B) any Special Interest Record
Date for such Notes and before the opening of business at
such office or agency on the related proposed date for
payment of interest, any Additional Amounts or Defaulted
Interest, as the case may be, interest, Additional Amounts
or Defaulted Interest, as the case may be, shall not be
payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such
Certificated Notes, but shall be payable on such Interest
Payment Date or proposed date for payment, as the case may
be, only to the Person to whom interest and any Additional
Amounts or Defaulted Interest, as applicable, in respect
of such portion of or all Book-Entry Notes, as the case
may be, represented by such Global Security shall be
payable in accordance with the provisions of this
Indenture.
(d) The Certificated Notes issued in exchange for any Book-Entry
Notes represented by a Global Security shall be of like tenor and
of an equal aggregate principal amount, in authorized
denominations. Such Certificated Notes shall be registered in the
name or names of such person or persons as the applicable
Depository shall instruct the Registrar.
SECTION 2.11 WITHHOLDING TAX. All payments under the Notes will be
made without deduction or withholding for any present or future taxes, duties,
assessments or
20
governmental charges of any nature, unless such withholding or deduction is
required by law, regulation or official interpretation. Unless otherwise
provided in the applicable Note Certificate or Supplemental Indenture, the
Issuer will not pay any Additional Amounts to Holders of Notes of a series in
the event that any withholding or deduction is so required by law, regulation or
official interpretation thereof, and the imposition of a requirement to make any
such withholding or deduction will not give rise to any independent right or
obligation to redeem the Notes of such series.
SECTION 2.12 TAX TREATMENT.
(a) The parties hereto hereby agree, and each Holder and beneficial
owner of Notes of each series by its purchase of Notes is deemed
to agree, that for United States Federal, state and local income
and franchise tax purposes:
(i) each Note be treated as indebtedness of the Funding
Agreement Provider; and
(ii) the Issuer and any series of the Issuer be ignored.
(b) The parties hereto hereby agree, and each Holder and beneficial
owner of Notes of each series by its purchase of Notes is deemed
to agree, to not take any action inconsistent with the treatment
described in Section 2.12(a) (including, without limitation,
under United States Treasury Regulations Sections 301.7701-2, or
000-0000-0, the "check-the-box regulations") unless otherwise
required by applicable law.
ARTICLE 3
REDEMPTION, REPAYMENT AND REPURCHASE OF NOTES; SINKING FUNDS
SECTION 3.1 REDEMPTION OF NOTES.
(a) Redemption of Notes of any series Issuer as permitted or required
by this Indenture and each applicable Note Certificate or
Supplemental Indenture will be made in accordance with the terms
of such Notes and (except as otherwise provided herein or
pursuant hereto) this Section.
(b) If any Initial Redemption Date is specified in an applicable Note
Certificate or Supplemental Indenture, the Issuer may redeem
Notes of the particular series prior to the Stated Maturity Date
at its option, on, or on any Business Day after, the Initial
Redemption Date in whole or from time to time in part in
increments $1,000 or any other integral multiple of an authorized
denomination of such Notes specified at the applicable Redemption
Price together with any unpaid interest accrued thereon, any
Additional Amounts and other amounts payable with respect
thereto, as of the Redemption Date.
(c) If (i) the Issuer is required at any time to pay Additional
Amounts or if the Issuer is obligated to withhold or deduct any
United States taxes with
21
respect to any payment under the Notes, as set forth in each
applicable Note Certificate or Supplemental Indenture, or if
there is a material probability that the Issuer will become
obligated to withhold or deduct any such United States taxes or
otherwise pay Additional Amounts (in the opinion of independent
legal counsel selected by the Funding Agreement Provider), in
each case pursuant to any change in or amendment to any United
States tax laws (or any regulations or rulings thereunder) or any
change in position of the Internal Revenue Service regarding the
application or interpretation thereof (including, but not limited
to, the Funding Agreement Provider or the Issuer's receipt of a
written adjustment from the Internal Revenue Service in
connection with an audit) (a "Tax Event"), and (ii) the Funding
Agreement Provider, pursuant to the terms of the relevant Funding
Agreement, has delivered to the Owner notice that the Funding
Agreement Provider intends to terminate the relevant Funding
Agreement pursuant to Section 12(b) of such Funding Agreement,
then the Issuer will redeem the particular series of Notes on the
Redemption Date at the Redemption Price together with any unpaid
interest accrued thereon, any Additional Amounts and other
amounts payable with respect thereto, as of the Redemption Date.
(d) Unless a shorter notice shall be satisfactory to the Indenture
Trustee, Issuer shall provide to the Indenture Trustee a notice
of redemption of any Notes (i) in case of any redemption at the
election of the Issuer, not more than 60 days nor less than 30
days prior to the Redemption Date and (ii) in case of any
mandatory redemption pursuant to Section 3.1(c), at least 75 days
prior to the Redemption Date. In case of any redemption at the
election of the Issuer of less than all of the Notes of any
series such notice shall specify the aggregate principal amount
of the Notes of such series to be redeemed.
(e) If less than all of the Notes of any series are to be redeemed at
the option of the Issuer, the particular Notes to be redeemed
shall be selected not more than 60 days prior to the Redemption
Date by the Indenture Trustee from the Outstanding Notes of such
series not previously called for redemption, by such method as
the Indenture Trustee shall deem fair and appropriate, acting in
accordance with its obligations under this Indenture, and which
may provide for the selection for redemption of portions of the
principal amount of Notes of such series; PROVIDED, HOWEVER, that
no such partial redemption shall reduce the portion of the
principal amount of a Note of such series not redeemed to less
than the minimum denomination for a Note of such series
established in or pursuant to this Indenture. The Indenture
Trustee shall promptly notify the Issuer and the Registrar (if
other than itself) in writing of the Notes selected for
redemption and, in the case of any Notes selected for partial
redemption and the aggregate principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Notes shall relate, in the case of any Notes redeemed or
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to be redeemed only in part, to the portion of the principal of
such Notes which has been or is to be redeemed.
(f) Unless otherwise specified herein, in each applicable Note
Certificate or in a Supplemental Indenture, the Issuer shall give
a notice of redemption to each Holder of the Notes to be redeemed
at the Issuer's option (i) in case of any redemption at the
election of the Issuer, not more than 60 nor less than 30 days
prior to the Redemption Date and (ii) in case of any mandatory
redemption pursuant to Section 3.1(c), not more than 75 days nor
less than 30 days prior to the Redemption Date; provided, in the
case of any notice of redemption given pursuant to claim (ii),
that no such notice of redemption may be given earlier than 90
days prior to the earliest day on which the Issuer would become
obligated to pay the applicable Additional Amounts were a payment
in respect of Notes then due. Failure to give such notice to the
Holder of any Note designated for redemption in whole or in part,
or any defect in the notice to any such Holder, shall not affect
the validity of the proceedings for the redemption of any other
Note or any portion thereof.
Any notice that is mailed to the Holder of any Notes in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives the notice.
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price,
(iii) in case of any redemption at the election of the Issuer,
if less than all Outstanding Notes of any series are to be
redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Note
or Notes to be redeemed,
(iv) in case any Note is to be redeemed in part only at the
election of the Issuer, the notice which relates to such
Note shall state that on and after the Redemption Date,
upon surrender of the Note Certificate representing such
Note, the Holder of such Note will receive, without
charge, a new Note Certificate representing an authorized
denomination of the principal amount of such Note
remaining unredeemed,
(v) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Note or portion
thereof to be redeemed, and, if applicable, that interest
thereon shall cease to accrue on and after the Redemption
Date,
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(vi) the place or places where each applicable Note Certificate
representing such Note or Notes is to be surrendered for
payment of the Redemption Price together with any unpaid
interest accrued thereon through the Redemption Date and
any Additional Amounts payable with respect thereto,
(vii) if applicable, in case of any redemption at the election
of the Issuer, that the redemption is for a sinking fund,
and
(viii) the CUSIP number or any other numbers used to identify
such Notes.
(g) On or prior to any Redemption Date, the Issuer shall deposit,
with respect to any Notes of a series called for redemption
pursuant to this Section, with the Paying Agent an amount of
money in the Specified Currency sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date, unless otherwise specified each applicable Note
Certificate or Supplemented Indenture) any unpaid interest
accrued through the Redemption Date on, and any Additional
Amounts payable with respect to, all such Notes or portions
thereof which are to be redeemed on the Redemption Date.
(h) The Notes to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price together with any unpaid
interest accrued through the Redemption Date on, and any
Additional Amounts payable with respect to, such Notes, and from
and after such date (unless the Company shall default in the
payment of the Redemption Price and any unpaid interest accrued
on such Notes through the Redemption Date) such Notes shall cease
to bear interest. Upon surrender of any Note Certificate for
redemption of any Note or Notes represented thereby in accordance
with the applicable notice of redemption, such Note shall be paid
by the Issuer at the Redemption Price, together with any unpaid
interest accrued thereon through the Redemption Date and any
Additional Amounts payable with respect thereto; PROVIDED,
HOWEVER, that, except as otherwise provided in or pursuant to
this Indenture, each applicable Note Certificate or Supplemental
Indenture, installments of interest on Notes, the Stated Maturity
of which is on or prior to the Redemption Date, shall be payable
to the Holders of such Notes, or one or more predecessor Notes,
registered as such at the close of business on the Regular
Interest Record Dates therefor according to their terms and the
provisions of Section 3.1(b).
(i) If any Note called for redemption shall not be so paid upon
surrender of the applicable Note Certificate for redemption, the
principal and any premium, until paid, shall bear interest from
the Redemption Date at the rate specified in each applicable Note
Certificate or Supplemental Indenture.
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(j) If applicable, the Issuer will comply with the requirements of
Section 14(e) of the Exchange Act, and the rules promulgated
thereunder, and any other securities laws or regulations in
connection with any redemption or any repayment pursuant to
Section 3.2 hereof of Notes at the option of the Holder or
Holders thereof.
Upon surrender of any Note Certificate for partial redemption of any
Note or Notes represented thereby in accordance with this Section, the Issuer
shall execute and the Indenture Trustee shall authenticate and deliver one or
more new Note Certificates of the same series of any authorized denomination
representing an aggregate principal amount equal to the unredeemed portion of
the applicable Note or Notes.
SECTION 3.2 REPAYMENT AT THE OPTION OF THE HOLDER.
(a) If so specified in an applicable Note Certificate or Supplemental
Indenture, the Holder or Holders of the Notes of a series may
require the Issuer to repay the Notes of such series prior to
their Stated Maturity Date in whole or from time to time in part
in increments of $1,000 or any other integral multiple of an
authorized denomination specified in the applicable Note
Certificate or Supplemental Indenture (provided that any
remaining principal amount thereof shall be at least $1,000 or
other minimum authorized denomination applicable thereto).
(b) Notes of any series which are repayable at the option of the
Holder or Holders thereof before their Stated Maturity Date shall
be repaid in accordance with the terms of the Notes of such
series.
(c) The repayment of any principal amount of Notes pursuant to any
option of the applicable Holder or Holders to require repayment
of any Notes before their Stated Maturity Date shall not operate
as a payment, redemption or satisfaction of the indebtedness
represented by such Notes unless and until Issuer, at its option,
shall deliver or surrender the same to the Indenture Trustee with
a directive that such Notes be cancelled.
(d) Notwithstanding anything to the contrary contained in this
Section, in connection with any repayment of Notes, the Issuer
may arrange for the purchase of any Notes by an agreement with
one or more investment bankers or other purchasers to purchase
such Notes by paying the Holder or Holders of such Notes on or
before the close of business on the Repayment Date an amount not
less than the Repayment Price payable by the Issuer on repayment
of such Notes, and the obligation of the Issuer to pay the
Repayment Price of such Notes shall be satisfied and discharged
to the extent such payment is so paid by such purchasers.
(e) Any exercise of the repayment option will be irrevocable.
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SECTION 3.3 REPURCHASE OF NOTES.
The Issuer may at any time purchase Notes at any price or prices in
the open market or otherwise. Notes by the Issuer may, at the Issuer's
discretion, be held by the Issuer, resold or surrendered to the Indenture
Trustee for cancellation pursuant to Section 2.9.
SECTION 3.4 SINKING FUNDS.
Unless otherwise provided in each applicable Note Certificate or
Supplemental Indenture no series of Notes will be subject to, or entitled to the
benefit of, any sinking fund.
ARTICLE 4
PAYMENTS; PAYING AGENTS AND CALCULATION AGENT; COVENANTS
SECTION 4.1 PAYMENT OF PRINCIPAL AND INTEREST.
(a) The Issuer will for the benefit of each series of Notes duly and
punctually pay or cause to be paid the principal of, any premium
and interest on, and any Additional Amounts with respect to, each
of the Notes of such series in accordance with the terms of the
Notes of such series and this Indenture.
(b) Upon the receipt of the funds necessary therefor, the applicable
Paying Agent shall duly and punctually make payments, payable on
the Maturity Date, of principal in respect of, any premium and
interest on, and any Additional Amounts payable with respect to,
any Certificated Notes in immediately available funds against
presentation and surrender of the applicable Definitive Security
(and in the case of any repayment of a Note pursuant to Section
3.2, upon submission of a duly completed election form at an
office or agency of such Paying Agent maintained for such purpose
pursuant to Section 4.2). Upon the receipt of the funds necessary
therefor, the applicable Paying Agent shall duly and punctually
make payments, payable on the Maturity Date, of principal of, any
premium and interest on, and any Additional Amounts with respect
to, a Certificated Note to the Person to whom payment of the
principal thereof shall be made. The applicable Paying Agent
(unless such Paying Agent is the Indenture Trustee) shall
promptly forward each Definitive Security surrendered to it in
connection with any payment pursuant to this Section for
cancellation in accordance with Section 2.9. Upon the receipt of
the funds necessary therefor, the applicable Paying Agent shall
duly and punctually make payments of principal of, any premium
and interest on, and any Additional Amounts in respect of,
Certificated Notes payable on any date other than the Maturity
Date by check mailed to the Holder (or to the first named of
joint Holders) of such Certificated Note at the close of business
on the applicable Regular Interest Record Date or Special
Interest Record Date, as the case may be, at its address
appearing in the applicable Note Register. Notwithstanding the
foregoing, the applicable Paying
26
Agent shall make payments of principal, any interest, any
premium, and any Additional Amounts on any date other than the
Maturity Date to each Holder (or to the first named of joint
Holders) at the close of business on the applicable Regular
Interest Record Date or Special Interest Record Date, as the case
may be, of $10,000,000 (or, if the Specified Currency is other
than United States dollars, the equivalent thereof in the
particular Specified Currency) or more in aggregate principal
amount of Certificated Notes (whether having identical or
different terms and provisions) by wire transfer of immediately
available funds if the applicable Holder has delivered
appropriate wire transfer instructions in writing to the
applicable Paying Agent not less than 15 days prior to the date
on which the applicable payment of principal, interest, premium
or Additional Amounts is scheduled to be made. Any wire transfer
instructions received by the applicable Paying Agent shall remain
in effect until revoked by the applicable Holder.
(c) Upon receipt of the funds necessary therefor, on the Maturity
Date the applicable Paying Agent shall (in the absence of any
other arrangements between the applicable Paying Agent and the
applicable Holder) duly and punctually make payments, payable on
the Maturity Date, of principal in respect of, any premium and
interest payable on, and any Additional Amounts with respect to,
any Book-Entry Notes to the Holder of such Book-Entry Notes at
the close of business on the applicable Maturity Date by wire
transfer of immediately available funds in accordance with the
wire transfer instructions received from the applicable Holder
against presentation and surrender of each Global Security
representing such Book-Entry Notes. The applicable Paying Agent
(unless such Paying Agent is the Indenture Trustee) shall
promptly forward to the Indenture Trustee each Global Security
surrendered to it in connection with any payment pursuant to this
section for cancellation in accordance with Section 2.9. Provided
it has received the funds necessary therefor in accord with
Section 4.5(b), the applicable Paying Agent shall duly and
punctually make payments of principal of, any premium and
interest on, and any Additional Amounts in respect of, any
Book-Entry Notes payable on any date other than the Maturity Date
to the Holder of such Book-Entry Notes by 11:00 a.m. (New York
City time) on the applicable Regular Interest Record Date or
Special Interest Record Date, as the case may be, by wire
transfer of immediately available funds in accordance with the
wire transfer instructions received from the applicable Holder.
Any wire transfer instruction received by the applicable Paying
Agent shall remain in effect until revoked by the applicable
Holder.
(d) Unless otherwise specified in the applicable Note Certificate or
Supplemental Indenture, the Issuer shall be obligated to make, or
cause to be made, payments of principal of, any premium and
interest on, and any Additional Amounts with respect to, a
Foreign Currency Note in the Specified Currency. Any amounts so
payable by the Issuer in the
27
Specified Currency will be converted by the exchange rate agent
named in the applicable Note Certificate or Supplemental
Indenture (the "EXCHANGE RATE AGENT") into United States dollars
for payment to the Holder or Holders thereof unless otherwise
specified in the applicable Note Certificate or Supplemental
Indenture or a Holder elects to receive such amounts in the
Specified Currency as provided below.
(e) Any United States dollar amount to be received by the Holder or
Holders of a series of Foreign Currency Notes will be based on
the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 a.m. (New York City
time) on the second Business Day preceding the applicable payment
date from three recognized foreign exchange dealers (one of whom
may be the Exchange Rate Agent) selected by the Exchange Rate
Agent and approved by the Issuer for the purchase by the quoting
dealer of the Specified Currency for United States dollars for
settlement on that payment date in the aggregate amount of the
Specified Currency payable to all Holder or Holders of such
series of Foreign Currency Notes scheduled to receive United
States dollar payments and at which the applicable dealer commits
to execute a contract. All currency exchange costs will be borne
by the relevant Holder or Holders of such series of Foreign
Currency Notes by deductions from any payments. If three bid
quotations are not available, payments will be made in the
Specified Currency.
(f) Holders of Foreign Currency Notes may elect to receive all or a
specified portion of any payment of principal and/or any
interest, premium and Additional Amounts in the Specified
Currency by submitting a written request to the Indenture Trustee
at its Corporate Trust Office in The City of New York on or prior
to the applicable Regular Interest Record Date or Special
Interest Record Date or at least fifteen calendar days prior to
the Maturity Date, as the case may be. Such written request may
be mailed or hand delivered or sent by cable, telex or other form
of facsimile transmission. Such election will remain in effect
until revoked by written notice delivered to the Indenture
Trustee on or prior to the applicable Regular Interest Record
Date or Special Interest Record Date or at least fifteen calendar
days prior to the Maturity Date, as the case may be.
(g) Unless otherwise specified in an applicable Note Certificate or
Supplemental Indenture, an Entitlement Holder with respect to a
Foreign Currency Note represented by a Global Security which
elects to receive payments of principal, and/or any interest,
premium and Additional Amounts in the Specified Currency must
notify, or cause the notification of the applicable Depositary of
its election on or prior to the third Business Day after the
applicable Regular Interest Record Date or Special Interest
Record Date, or at least twelve calendar days prior to the
Maturity Date, as the case may be, and the Depositary will notify
the Indenture Trustee of that election on or prior to the fifth
Business Day after the applicable
28
Regular Interest Record Date or Special Interest Record Date, or
at least 10 calendar days prior to the Maturity Date, as the case
may be. If complete instructions are received by the Depositary
and by the Indenture Trustee, on or prior to such dates, then the
applicable beneficial owner will receive payments in the
Specified Currency.
(h) If the Specified Currency for Foreign Currency Notes is not
available for any required payment of principal and/or any
interest, premium and Additional Amounts due to the imposition of
exchange controls or other circumstances beyond the Issuer's
control, the Issuer will be entitled to satisfy its obligations
with respect to such Foreign Currency Notes by making payments in
United States dollars on the basis of the Market Exchange Rate,
computed by the Exchange Rate Agent as described above, on the
second Business Day prior to the particular payment or, if the
Market Exchange Rate is not then available, on the basis of the
most recently available Market Exchange Rate.
(i) All determinations made by the Exchange Rate Agent shall be at
its sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and binding on the Holder or
Holders of Foreign Currency Notes and any applicable Entitlement
Holders.
SECTION 4.2 OFFICES FOR PAYMENTS, ETC. So long as any of the Notes
of any series remain Outstanding, the Issuer will maintain in New York and in
any other city that may be required by any stock exchange on which the Notes of
such series may be listed, and in any city specified in the Note Certificate or
Supplemental Indenture for such series of Notes the following: (i) an office or
agency where the Notes of such series may be presented for payment, (ii) an
office or agency where the Notes of such series may be presented for
registration of transfer and for exchange as provided in this Indenture and
(iii) an office or agency where notices and demands to or upon the Issuer in
respect of the Notes of such series or of this Indenture may be served. The
Issuer will give to the Indenture Trustee written notice of the location of any
such office or agency and of any change of location thereof. The Issuer hereby
initially designates the Corporate Trust Office of the Indenture Trustee as the
office or agency for each such purpose. In case the Issuer shall fail to
maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Corporate Trust Office.
SECTION 4.3 PAYMENT DATE NOT A BUSINESS DAY. Unless otherwise
specified in a Note Certificate or Supplemental Indenture for any series of
Notes, if the date on which any principal, interest, premium, Additional Amounts
or other payment obligation is due falls on a day that is not a Business Day,
the Issuer will have until the next succeeding Business Day to satisfy its
payment obligation and any such payment shall be given the same force and effect
as if made on the date on which such principal, interest, premium, Additional
Amounts or other payment obligation was due and no additional interest shall
accrue as a result of payment on such succeeding Business Day.
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SECTION 4.4 APPOINTMENT TO FILL A VACANCY IN OFFICE OF INDENTURE
TRUSTEE. The Issuer, whenever necessary to avoid or fill a vacancy in the office
of Indenture Trustee, will appoint, in the manner provided in Section 6.8, a
trustee, so that there shall at all times be a trustee hereunder.
SECTION 4.5 PAYING AGENTS.
(a) The Issuer hereby appoints the Indenture Trustee as Paying Agent
with respect to each series of Notes and the Indenture Trustee
hereby accepts such appointment. The Indenture Trustee, in its
capacity as Paying Agent, hereby agrees, and, whenever the Issuer
shall appoint a Paying Agent other than the Indenture Trustee
with respect to the Notes of any series, the Issuer will cause
such Paying Agent to execute and deliver to the Issuer and the
Indenture Trustee an instrument in which such Paying Agent shall
agree with the Issuer and the Indenture Trustee, subject to the
provisions of this Section, that it will:
(i) hold all sums received by it as such agent for the payment
of the principal of, any premium or interest on, or any
Additional Amounts with respect to, the Notes of such
series (whether such sums have been paid to it by the
Funding Agreement Provider, Issuer or by any other obligor
on the Notes of such series) == in trust for the benefit
of each Holder of the Notes of such series and will (and
will cause each of its agents and Affiliates to) deposit
all cash amounts received by it (or such agents or
Affiliates, as applicable) that are derived from the
applicable Collateral for any series of Notes for the
benefit of the Holders of such series of Notes in a
segregated account maintained or controlled by the
Indenture Trustee, consistent with the rating of the
Outstanding Notes of such series;
(ii) give the Indenture Trustee notice of any failure by the
Issuer (or by any other obligor on the Notes of such
series) to make any payment of the principal of, any
premium and interest on, or any Additional Amounts with
respect to, the Notes of such series when the same shall
be due and payable;
(iii) pay any such sums so held in trust by it to the Indenture
Trustee upon the Indenture Trustee's written request at
any time during the continuance of the failure referred to
in clause (ii) above;
(iv) in the absence of the failure referred in clause (ii)
above, pay any such sums so held in trust by it in
accordance with this Indenture and the terms of the
applicable Notes; and
(v) comply with all agreements of Paying Agents in, and
perform all functions and obligations imposed on Paying
Agents by or
30
pursuant to, this Indenture and each applicable Note
Certificate or Supplemental Indenture.
(b) The Issuer will, at or prior to 9:30 a.m. (New York City time)
each due date of the principal of, any premium and interest on,
or any Additional Amounts with respect to, the Notes of such
series, deposit or cause to be deposited with the applicable
Paying Agent a sum sufficient to pay such principal, any interest
or premium, and any Additional Amounts, and (unless such Paying
Agent is the Indenture Trustee) the Issuer will promptly notify
the Indenture Trustee of any failure to take such action.
(c) If the Issuer shall act as its own Paying Agent, it will, on or
before each due date of the principal of. any premium and
interest on, or any Additional Amounts with respect to, the Notes
of such series, set aside, segregate and hold in trust for the
benefit of each Holder of the Notes of such series a sum
sufficient to pay such principal, interest, premium or Additional
Amounts so becoming due and will deposit all such cash amounts in
a segregated account maintained or controlled by the Indenture
Trustee, consistent with the rating of the Outstanding Notes of
such series. The Issuer will promptly notify the Indenture
Trustee of any failure to take such action.
(d) Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge of one or more or all series of Notes
hereunder or for any other reason, pay or cause to be paid to the
Indenture Trustee all sums held in trust for any such series by
the Issuer or any Paying Agent hereunder, as required by this
Section, such sums to be held by the Indenture Trustee upon the
trusts contained herein; PROVIDED, HOWEVER, in order to obtain
such satisfaction or discharge of such series of Notes, that such
sums paid to the Indenture Trustee must be at least equal in
amounts due and owing on such series of Notes.
(e) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section are
subject to the provisions of Sections 11.3 and 11.4.
(f) The applicable Paying Agent shall (i) collect all forms from
Holders of Notes (or from such other Persons as are relevant)
that are required to exempt payments under the Notes and/or the
related Funding Agreements from United States Federal income tax
withholding, (ii) withhold and pay over to the Internal Revenue
Service or other taxing authority with respect to payments under
the Notes any amount of taxes required to be withheld by any
United States Federal, state or local statute, rule or regulation
and (iii) forward copies of such forms to the Issuer and the
Funding Agreement Provider.
31
(g) Each Paying Agent shall forward to the Issuer at least monthly a
bank statement in its possession with respect to the performance
of its functions and obligations with respect to any Notes.
(h) The Issuer shall pay the compensation of each Paying Agent at
such rates as shall be agreed upon in writing by the Issuer and
the relevant Paying Agent from time to time and shall reimburse
each Paying Agent for reasonable expenses properly incurred by
such Paying Agent in connection with the performance of its
duties upon receipt of such invoices as the Issuer shall
reasonably require.
(i) Subject as provided below, each Paying Agent may at any time
resign as Paying Agent by giving not less than 60 days' written
notice to the Issuer and the Indenture Trustee (unless the
Indenture Trustee is such Paying Agent) of such intention on it
part, specifying the date on which its resignation shall become
effective. Except as provided below, the Issuer may remove a
Paying Agent by giving not less than 20 days' written notice
specifying such removal and the date when it shall become
effective. Any such resignation or removal shall take effect
upon:
(i) the appointment by the Issuer as hereinafter provided of a
successor Paying Agent; and
(ii) the acceptance of such appointment by such successor
Paying Agent,
PROVIDED that with respect to any Paying Agent who fails duly to
pay any amounts when due and payable with respect to any Notes,
any such removal will take effect immediately upon such
appointment of, and acceptance thereof by, a successor Paying
Agent approved by the Indenture Trustee (unless the Indenture
Trustee is such Paying Agent), in which event notice of such
appointment shall be given to each Holder of the Notes as soon as
practicable thereafter. The Issuer agrees with each Paying Agent
that if, by the day falling 10 days before the expiration of any
notice given pursuant to this Section 4.5(i), the Issuer has not
appointed a replacement Paying Agent, then the Paying Agent shall
be entitled, on behalf of the Issuer, to appoint in its place a
reputable financial institution of good standing reasonably
acceptable to the Issuer and the Indenture Trustee (unless the
Indenture Trustee is such Paying Agent); PROVIDED, however, that
notwithstanding the foregoing, the resignation or removal of the
relevant Paying Agent shall not be effective unless, upon the
expiration of the notice given pursuant to this Section 4.5(i),
the successor Paying Agent shall have accepted its appointment.
Upon its resignation or removal becoming effective, the retiring
Paying Agent shall be entitled to the payment of its compensation
and reimbursement of all expenses incurred by such retiring
Paying Agent pursuant to Section 4.5(h) hereof up to the
effective date of such resignation or removal.
32
(j) If at any time a Paying Agent shall resign or be removed, or
shall become incapable of acting with respect to any applicable
series of Notes, or shall be adjudged as bankrupt or insolvent,
or a receiver or liquidator of such Paying Agent or of its
property shall be appointed, or any public officer shall take
charge or control of such Paying Agent or its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
then a successor Paying Agent shall be appointed by the Issuer by
an instrument in writing filed with the successor Paying Agent.
Upon any such appointment of, and the acceptance of such
appointment by, a successor Paying Agent and (except in cases of
removal for failure to timely pay any amounts as required by or
pursuant to this Indenture or an applicable Note Certificate or
Supplemental Indenture) the giving of notice to each Holder of
the Notes, the retiring Paying Agent shall cease to be Paying
Agent hereunder.
(k) Any successor Paying Agent appointed hereunder shall execute and
deliver to its predecessor, the Issuer and the Indenture Trustee
(unless the Indenture Trustee is such Paying Agent) a reasonably
acceptable instrument accepting such appointment hereunder, and
thereupon such successor Paying Agent, without any further act,
deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as a
Paying Agent hereunder, and such predecessor, upon payment of any
amounts due pursuant to Section 4.5(h) and unpaid, shall
thereupon become obliged to transfer and deliver, and such
successor Paying Agent shall be entitled to receive, copies of
any relevant records maintained by such predecessor Paying Agent.
(l) Any corporation into which a Paying Agent may be merged or
converted or with which it may be consolidated or any corporation
resulting from any merger, conversion or consolidation to which
such Paying Agent shall be a party, or any corporation succeeding
to all or substantially all of the paying agency business of such
Paying Agent shall be a successor Paying Agent under this
Indenture without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything
herein to contrary notwithstanding. At least 30 days' prior
notice of any such merger, conversion or consolidation shall be
given to the Issuer and the Indenture Trustee (unless the
Indenture Trustee is such Paying Agent).
SECTION 4.6 CALCULATION AGENT.
(a) The Issuer hereby appoints the Indenture Trustee as Calculation
Agent with respect to each series of Notes, and the Indenture
Trustee hereby accepts such appointment.
(b) The relevant Calculation Agent shall, in relation to any relevant
Notes, perform all functions and obligations imposed on such
Calculation Agent
33
by or pursuant to this Indenture, and each applicable Note
Certificate or Supplemental Indenture.
(c) Each Calculation Agent, excluding the Indenture Trustee, shall
forward to the Issuer at least monthly a report providing details
with respect to the performance of its functions and obligations
with respect to any Notes which shall include dates and amounts
of forthcoming payments with respect to the Notes.
(d) The relevant Calculation Agent shall, upon the request of any
relevant Holder of the relevant Notes, provide the interest rate
then in effect and, if determined, the interest rate that will
become effective as a result of a determination made for the next
succeeding Interest Reset Date with respect to the particular
series of Notes. (e) All determinations of interest by the
Calculation Agent shall, in the absence of manifest errors, be
conclusive for all purposes and binding on the Holders of the
applicable Notes.
(f) The Issuer shall pay the compensation of each Calculation Agent
at such rates as shall be agreed upon in writing by the Issuer
and the relevant Calculation Agent from time to time and shall
reimburse each Calculation Agent for reasonable expenses properly
incurred by such Calculation Agent in connection with the
performance of its duties upon receipt of such invoices as the
Issuer shall reasonably require.
(g) Subject as provided below, each Calculation Agent may at any time
resign as Calculation Agent by giving not less than 60 days'
written notice to the Issuer and the Indenture Trustee (unless
the Indenture Trustee is such Calculation Agent) of such
intention on it part, specifying the date on which its
resignation shall become effective. Except as provided below, the
Issuer may remove a Calculation Agent by giving not less than 20
days' written notice specifying such removal and the date when it
shall become effective. Any such resignation or removal shall
take effect upon:
(i) the appointment by the Issuer as hereinafter provided of a
successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent,
PROVIDED that with respect to any Calculation Agent who fails
duly to establish the interest rate or amount for any Interest
Reset Period, any such removal will take effect immediately upon
such appointment of, and acceptance thereof by, a successor
Calculation Agent approved by the Indenture Trustee (unless the
Indenture Trustee is such Calculation Agent), in which event
notice of such appointment shall be given to each Holder of the
Notes as soon as practicable thereafter. The Issuer agrees
34
with each Calculation Agent that if, by the day falling 10 days
before the expiration of any notice given pursuant to this
Section 4.6(g), the Issuer has not appointed a replacement
Calculation Agent, then the Calculation Agent shall be entitled,
on behalf of the Issuer, to appoint in its place a reputable
financial institution of good standing reasonably acceptable to
the Issuer and the Indenture Trustee (unless the Indenture
Trustee is such Calculation Agent); PROVIDED, however, that
notwithstanding the foregoing, the resignation or removal of the
relevant Calculation Agent shall not be effective unless, upon
the expiration of the notice given pursuant to this Section
4.6(g), the successor Calculation Agent shall have accepted its
appointment. Upon its resignation or removal becoming effective,
the retiring Calculation Agent shall be entitled to the payment
of its compensation and reimbursement of all expenses incurred by
such retiring Calculation Agent pursuant to Section 4.6(f) hereof
up to the effective date of such resignation or removal.
(h) If at any time a Calculation Agent shall resign or be removed, or
shall become incapable of acting with respect to any applicable
series of Notes, or shall be adjudged as bankrupt or insolvent,
or a receiver or liquidator of such Calculation Agent or of its
property shall be appointed, or any public officer shall take
charge or control of such Calculation Agent or its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then a successor Calculation Agent shall be
appointed by the Issuer by an instrument in writing filed with
the successor Calculation Agent. Upon any such appointment of,
and the acceptance of such appointment by, a successor
Calculation Agent and (except in cases of removal for failure to
establish the amount of interest) the giving of notice to each
Holder of the Notes, the retiring Calculation Agent shall cease
to be Calculation Agent hereunder.
(i) Any successor Calculation Agent appointed hereunder shall execute
and deliver to its predecessor, the Issuer and the Indenture
Trustee (unless the Indenture Trustee is such Calculation Agent)
a reasonably acceptable instrument, accepting such appointment
hereunder, and thereupon such successor Calculation Agent,
without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities,
duties and obligations of such predecessor with like effect as if
originally named as a Calculation Agent hereunder, and such
predecessor, upon payment of any amounts due pursuant to Section
4.6(f) and unpaid, shall thereupon become obliged to transfer and
deliver, and such successor Calculation Agent shall be entitled
to receive, copies of any relevant records maintained by such
predecessor Calculation Agent.
(j) Any corporation into which a Calculation Agent may be merged or
converted or with which it may be consolidated or any corporation
resulting from any merger, conversion or consolidation to which
such Calculation Agent shall be a party, or a corporation
succeeding to all or
35
substantially all of the paying agency business of such
Calculation Agent shall be a successor Calculation Agent under
this Indenture without the execution or filing of any paper or
any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. At least 30
days' prior notice of any such merger, conversion or
consolidation shall be given to the Issuer and the Indenture
Trustee (unless the Indenture Trustee is such Calculation Agent).
SECTION 4.7 CERTIFICATE TO INDENTURE TRUSTEE. The Issuer will
furnish to the Indenture Trustee on or before - in each year (beginning with -)
a brief certificate (which need not comply with Section 13.5) as to its
knowledge of the Issuer's compliance with all conditions and covenants under the
Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under the Indenture).
SECTION 4.8 NEGATIVE COVENANTS. So long as any Notes of any series
are Outstanding, the Issuer will not, except as otherwise expressly permitted
hereunder or under the Trust Agreement:
(i) sell, transfer, exchange, assign, lease, convey or
otherwise dispose of any of its assets (whenever
acquired), including, without limitation, any portion of
the Collateral securing its Obligations under the Notes of
any series and this Indenture;
(ii) engage in any business or activity other than in
connection with, or relating to the execution and delivery
of, and the performance of its obligations under, the
Trust Agreement, the Indenture, the Administrative
Services Agreement, the Distribution Agreement, the
Support and Expenses Agreement and each Funding Agreement;
the issuance and sale of any Notes pursuant to the
Indenture; holding the Deposit for the benefit of the
Trust Beneficial Owner; and the transactions contemplated
by, and the activities necessary or incidental to, any of
the foregoing;
(iii) incur, directly or indirectly, any Debt except for the
Notes or as otherwise contemplated hereunder or under the
Trust Agreement;
(iv) (A) permit the validity or effectiveness of this Indenture
or the Security Interest securing the Notes of any series
to be impaired, or permit such Security Interest to be
amended, hypothecated, subordinated, terminated or
discharged, (B) permit any Person to be released from any
covenants or obligations under any Funding Agreement
securing the Notes of any series, except as expressly
permitted thereunder, under the Indenture, the Trust
Agreement, or each applicable Funding Agreement, (C)
create, incur, assume, or permit any Lien or other
encumbrance (other than the Security Interests securing
the Notes of each series) on any of its properties or
assets now owned or hereafter acquired, or any interest
therein
36
or the proceeds thereof, or (D) permit a lien with respect
to the Collateral not to constitute a valid first priority
perfected security interest in the Collateral securing the
Notes of any series;
(v) amend, modify or fail to comply with any material
provision of the Trust Agreement, except for any amendment
or modification of the Trust Agreement expressly permitted
thereunder or under this Indenture or the relevant Funding
Agreement;
(vi) own any subsidiary or lend or advance any funds to, or
make any investment in, any Person, except for the
investment of any funds of the Issuer held by the
Indenture Trustee, a Paying Agent (whether with respect to
the Notes of any series or other securities of the
Issuer), the Delaware Trustee or the Administrator as
provided in this Indenture or the Trust Agreement;
(vii) directly or indirectly declare or pay a distribution or
make any distribution or other payment, or redeem or
otherwise acquire or retire for value any securities other
than the Notes, PROVIDED that the Issuer may declare or
pay a distribution or make any distribution or other
payment to the Trust Beneficial Owner in compliance with
the Trust Agreement if the Issuer has paid or made
provision for the payment of all amounts due to be paid on
the Notes, and pay all of its debt, liabilities,
obligations and expenses, the payment of which is provided
for under the Support and Expenses Agreement;
(viii) become required to register as an "investment company"
under and as such term is defined in the Investment
Company Act of 1940, as amended;
(ix) enter into any transaction of merger or consolidation, or
liquidate or dissolve itself (or, to the fullest extent
permissible by law, suffer any liquidation or
dissolution), or acquire by purchase or otherwise all or
substantially all the business or assets of, or any stock
or other evidence of beneficial ownership of, any Person;
(x) take any action that would cause the Issuer or any series
of the Issuer not to be either ignored or treated as a
grantor trust for United States Federal income tax
purposes;
(xi) issue any Notes unless the Funding Agreement Provider has
affirmed in writing to the Issuer that it has made changes
to its books and records to reflect the grant of a
security interest in, and the making of an assignment for
collateral purposes of, the relevant Funding Agreement by
the Issuer to the Indenture Trustee in accordance with the
terms of such Funding Agreement and the
37
Issuer has taken such other steps as may be necessary to
cause the Security Interest in or assignment for all
collateral purposes of, the relevant Collateral to be
perfected for purposes of the UCC or effective against its
creditors and subsequent purchasers of such Collateral
pursuant to insurance or other state laws;
(xii) make any deduction or withholding from any payment of
principal of or interest on any series of Notes (other
than amounts that may be required to be withheld or
deducted from such payments under the Code or any other
applicable tax law) by reason of the payment of any taxes
levied or assessed upon any portion of any relevant
Collateral except to the extent specified in this
Indenture or the applicable Note Certificate or
Supplemental Indenture;
(xiii) have any employees other than the Delaware Trustee and
Administrator or any other persons necessary to conduct
its business and enter into transactions contemplated
under this Indenture, the Trust Agreement, the
Administrative Agreement, the Distribution Agreement, the
Support and Expenses Agreement or any Funding Agreement;
(xiv) have an interest in any bank account other than the
accounts required under this Indenture, the Trust
Agreement, the Distribution Agreement or any Funding
Agreement and those accounts expressly permitted by the
Indenture Trustee; provided that any such further accounts
or such interest of the series of the Trust therein shall
be charged or otherwise secured in favor of the Indenture
Trustee on terms acceptable to such Indenture Trustee;
(xv) permit any Affiliate, employee or officer of the Funding
Agreement Provider or any Agent to be a trustee of Issuer;
or
(xvi) commingle the assets of any series of the Issuer with any
assets of any other series of the Issuer or any assets of
any series of the Issuer with any assets of any of the
Issuer's Affiliates, or guarantee any obligation of any of
the Issuer's Affiliates.
SECTION 4.9 ADDITIONAL AMOUNTS.
If any Notes of a series provide for the payment of Additional
Amounts, the Issuer agrees to pay to the Holder of any such Note Additional
Amounts as provided in a Note Certificate or Supplemental Indenture for such
Notes. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of, or interest or premium on, or in respect of, any
Note of any series or the net proceeds received on the sale or exchange of any
Note of any series, such reference shall be deemed to include reference to the
payment of Additional Amounts provided by the terms of such series established
hereby or pursuant hereto to the extent that, in such context, Additional
Amounts are, were or would be payable in respect
38
thereof pursuant to such terms, and express reference to the payment of
Additional Amounts in any provision hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express reference is
not made.
If the Notes of a series provide for the payment of Additional
Amounts, the Note Certificate or Supplemental Indenture for such Notes will
provide that Issuer will pay, or cause to be paid, Additional Amounts to a
Holder of Notes to compensate for any withholding or deduction for or on account
of any present or future taxes, duties, levies, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of any governmental
authority in the United States having the power to tax, so that the net amount
received by the Holder of the Notes, after giving effect to such withholding or
deduction, whether or not currently payable, will equal the amount that would
have been received under the Notes were no such deduction or withholding
required; provided that no such Additional Amounts shall be required for or on
account of:
(a) any tax, duty, levy, assessment or other governmental charge
imposed which would not have been imposed but for a Holder or
beneficial owner of one or more of the Notes, (i) having any
present or former connection with the United States, including,
without limitation, being or having been a citizen or resident
thereof, or having been present, having been incorporated in,
having engaged in a trade or business or having (or having had) a
permanent establishment or principal office therein, (ii) being a
controlled foreign corporation for United States federal income
tax purposes within the meaning of Section 957(a) of the Code
related within the meaning of Section 864(d)(4) of the Code, to
the Funding Agreement Provider, (iii) being a bank for United
States federal income tax purposes whose receipt of interest on
the Note is described in Section 881(c)(3)(A) of the Code, (iv)
being an actual or constructive owner of 10 percent or more of
the total combined voting power of all classes of stock of the
Funding Agreement Provider entitled to vote within the meaning of
Section 871(h)(3) of the Code and Treasury Regulations
promulgated thereunder or (v) being subject to backup withholding
as of the date of purchase by a beneficial owner or such Holder
of Notes;
(b) any tax, duty, levy, assessment or other governmental charge
imposed which would not have been imposed but for the
presentation of the Note (where presentation is required) for
payment on a date more than 30 days after the date on which such
payment becomes due and payable or the date on which payment is
duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge
which is imposed or withheld solely by reason of the failure of
the beneficial owner or a Holder of Notes to comply with
certification, identification or information reporting
requirements concerning the nationality, residence, identity or
connection with the United States of the beneficial owner or a
Holder of Notes, if compliance is required by statute, by
regulation, judicial or administrative interpretation, or by an
applicable income tax
39
treaty to which the United States is a party as a condition to
exemption from such tax, duty, levy, assessment or other
governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer
tax or similar tax, duty levy, assessment, or similar
governmental charge;
(e) any tax that is payable otherwise than by withholding from
payments with respect to the Notes or any such indebtedness
referred to above;
(f) any tax, duty, levy, assessment or other governmental charge
imposed by reason of payments on the Notes being treated as
contingent interest described in Section 871(h)(4) of the Code
for United States federal income tax purposes;
(g) any tax, duty, levy, assessment or other governmental charge that
would not have been imposed but for an election by the Holder of
Note, the effect of which is to make payment in respect of the
Notes subject to Untied States Federal income tax; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g)
above.
ARTICLE 5
REMEDIES OF THE INDENTURE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY;
WAIVER OF DEFAULT.
(a) "EVENT OF DEFAULT" with respect to Notes of a particular series
wherever used herein, means each of the following events which
shall have occurred and be continuing (whatever the reason for
such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) default in the payment when due and payable of the
principal of, or any premium on, any Note of such series;
(ii) default in the payment, when due and payable, of any
interest on, or any Additional Amounts with respect to,
any Note of such series and continuance of such default
for a period of five Business Days;
(iii) any "Event of Default", as such term is defined in any
Funding Agreement securing the Notes of such series, by
the Funding Agreement Provider under such Funding
Agreement;
(iv) the Issuer shall fail to observe or perform any covenant
contained in the Notes of such series or in this Indenture
for a period of 30 days after the date on which written
notice specifying such failure,
40
stating that such notice is a "Notice of Default"
hereunder and demanding that the Issuer remedy the same,
shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Indenture
Trustee, or to the Issuer and the Indenture Trustee by the
Holder or Holders of at least 25% in aggregate principal
amount of the Notes of all series affected thereby at the
time Outstanding; or
(v) this Indenture for any reason shall cease to be in full
force and effect or shall be declared null and void, or
the Indenture Trustee shall fail to have or maintain a
validly created and first priority perfected security
interest (or the equivalent thereof) in the Collateral
securing the Notes of such series; or any Person shall
successfully claim, as finally determined by a court of
competent jurisdiction that any Lien for the benefit of
the Holders of the Notes of such series and any other
Person for whose benefit the Indenture Trustee is holding
the applicable series Collateral, that the relevant series
Collateral is void or is junior to any other Lien or that
the enforcement thereof is materially limited because of
any preference, fraudulent transfer, conveyance or similar
law;
(vi) an involuntary case or other proceeding shall be commenced
against the Issuer seeking liquidation, reorganization or
other relief with respect to it or its debts under any
bankruptcy, insolvency, reorganization or other similar
law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the
Issuer under the federal bankruptcy laws as now or
hereafter in effect;
(vii) the Issuer shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any
bankruptcy, insolvency, reorganization or other similar
law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
property, or shall consent to any such relief or to the
appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any action to
authorize any of the foregoing; or
41
(viii) any other Event of Default provided in any Supplemental
Indenture or in a Note Certificate representing the Notes
of such series.
(b) If one or more Events of Default shall have occurred and be
continuing with respect to the Notes of such series, then, and in
every such event, unless the principal of all of the Notes of
such series shall have already become due and payable, either the
Indenture Trustee or the Holder or Holders of not less than 25%
in aggregate principal amount of the Notes of such series then
Outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Issuer (and to the Indenture
Trustee if given by such Holder or Holders), may declare the
entire principal and premium (if any) of all the Notes of such
series, any interest accrued thereon, and any Additional Amounts
due and owing and any other amounts payable with respect thereto,
to be due and payable immediately, and upon any such declaration
the same shall become immediately due and payable; PROVIDED that,
if any Event of Default specified in Section 5.1(a)(vi) or
5.1(a)(vii) occurs with respect to the Issuer, or if any Event of
Default specified in Section 5.1(a)(iii) that would cause any
Funding Agreement securing the Notes of a series to become
immediately due and payable occurs with respect to the Funding
Agreement Provider, then without any notice to the Issuer or any
other act by the Indenture Trustee or any Holder of any Notes of
such series, the entire principal and premium (if any) of all the
Notes of such series, any interest accrued thereon, and any
Additional Amounts due and owing, and any other amounts payable
with respect thereto, shall become immediately due and payable
without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Issuer; and PROVIDED
FURTHER that, if any Event of Default specified in Section
5.1(a)(iii) or 5.1(a)(v) shall have occurred and is continuing
with respect to all series of Notes then Outstanding, either the
Indenture Trustee or the Holder or Holders of not less than 25%
in aggregate principal amount of the Notes of all series then
Outstanding hereunder (treated as a single class) by notice in
writing to the Issuer (and to the Indenture Trustee if given by
such Holder or Holders), may declare the entire principal and
premium (if any) of all the Notes of all series and any interest
accrued thereon, and any Additional Amounts due and owing and any
other amounts payable with respect thereto, to be due and payable
immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) Notwithstanding Section 5.1(b), if at any time after the
principal of the Notes of such series, any interest accrued
thereon, and any Additional Amounts due and owing and any other
amounts payable with respect thereto (or all the Notes of all
series if the second proviso of Section 5.1(b) is applicable)
shall have been so declared due and payable and before any
judgment or decree for the payment of the funds due shall have
been obtained or entered as hereinafter provided, the Issuer
shall pay or shall
42
deposit with the Indenture Trustee a sum sufficient to pay all
due and payable interest on, and any Additional Amounts due and
owing and any other amounts payable with respect thereto, all the
Notes of such series (or all the Notes of all series if the
second proviso of Section 5.1(b) is applicable) and the principal
and premium (if any) of any and all Notes of such series (or all
the Notes of all series if the second proviso of Section 5.1(b)
is applicable) which shall have become due and payable otherwise
than by acceleration pursuant to Section 5.1(b) above (with
interest on such principal and, to the extent that payment of
such interest is enforceable under applicable law, on any overdue
interest and any other amounts payable, at the same rate as the
rate of interest specified in the Note Certificate representing
the Notes of such series (or all the Notes of all series if the
second proviso of Section 5.1(b) is applicable) to the date of
such payment or deposit) and such amount as shall be sufficient
to cover reasonable compensation to the Indenture Trustee and
each predecessor Indenture Trustee, their respective agents,
attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and
each predecessor Indenture Trustee except as a result of
negligence or bad faith, and if any and all Events of Default
under this Indenture, other than the non-payment of the principal
of and premium (if any) on the Notes of such series (or all the
Notes of all series if the second proviso of Section 5.1(b) is
applicable) which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein,
then and in every such case the Holder or Holders of a majority
in aggregate principal amount of the Notes of such series then
Outstanding, each voting as a separate class (or all the Notes of
all series, all voting as a single class, if the second proviso
of Section 5.1(b) is applicable), by written notice to the Issuer
and to the Indenture Trustee, may waive all defaults and rescind
and annul such declaration and its consequences, but no such
waiver or rescission and annulment shall extend to or shall
affect any subsequent default or shall impair any right
consequent thereon.
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY INDENTURE TRUSTEE;
INDENTURE TRUSTEE MAY PROVE DEBT.
(a) Subject to Section 5.1(c), if any Event of Default contained in
Section 5.1(a)(i) or (ii) shall have occurred and be continuing,
the Issuer will, upon demand by the Indenture Trustee, pay to the
Indenture Trustee for the benefit of each Holder of the Notes of
any series the whole amount that then shall have become due and
payable of the principal of, any premium and interest on, and any
Additional Amounts due and owing and any other amounts payable
with respect to, the Notes of such series (with interest to the
date of such payment upon the overdue principal and, to the
extent that payment of such interest is enforceable under
applicable law, on overdue interest and any other amounts payable
at the same rate as the rate of interest specified in the Notes
of such series); and in addition thereto, such
43
further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, their
respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result
of its negligence or bad faith.
(b) Until such demand is made by the Indenture Trustee, the Issuer
may pay the principal of, any premium and interest on, and any
Additional Amounts due and owing and any other amounts payable
with respect to, the Notes of such series to the Holders, whether
or not the Notes of such series be overdue.
(c) If the Issuer shall fail to pay such amounts upon such demand,
the Indenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of
the sums so due and unpaid, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon
the Notes of such series and collect in the manner provided by
law out of the property of the Issuer or other obligor upon the
Notes of such series, wherever the funds adjudged or decreed to
be payable are situated. If there shall be pending proceedings
relative to the Issuer or any other obligor upon the Notes of
such series under Title 11 of the United States Code or any other
applicable Federal or state bankruptcy, insolvency or other
similar law, or if a receiver, assignee or trustee in bankruptcy
or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer
or its property or such other obligor, or in case of any other
comparable judicial proceedings relative to the Issuer or other
obligor upon the Notes of such series, or to the creditors or
property of the Issuer or such other obligor, the Indenture
Trustee, irrespective of whether the principal of the Notes of
such series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(i) to file such proofs of a claim or claims and to file such
other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee,
and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee, except as those
adjudicated in a court of competent jurisdiction to be the
result of any such
44
Indenture Trustee's negligence or bad faith) and of the
Holders allowed in any judicial proceedings relative to
the Issuer or other obligor upon the Notes of such series,
or to the creditors or property of the Issuer or such
other obligor,
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Notes of such series
in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or Person performing
similar functions in comparable proceedings, and
(iii) to collect and receive any funds or other property payable
or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of each Holder
and of the Indenture Trustee on each Holder's behalf; and
any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each Holder to
make payments to the Indenture Trustee, and, in the event
that the Indenture Trustee shall consent to the making of
payments directly to any Holder, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents,
attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee
except as those adjudicated in a court of competent
jurisdiction to be the result of any such Indenture
Trustee's negligence or bad faith.
(d) Nothing contained herein shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or
accept or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting
the Notes of such series or the rights of any Holder thereof, or
to authorize the Indenture Trustee to vote in respect of the
claim of any Holder in any such proceeding except, as aforesaid,
to vote for the election of a trustee in bankruptcy or similar
Person.
(e) All rights of action and of asserting claims under this
Indenture, or under any of the Notes of such series, may be
enforced by the Indenture Trustee without the possession of any
of the Notes of such series or the production thereof on any
trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Indenture Trustee shall be
brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of each Holder.
45
(f) In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party) the
Indenture Trustee shall be held to represent every Holder of the
Notes of such series, and it shall not be necessary to make any
Holder of the Notes of such series party to any such proceedings.
SECTION 5.3 APPLICATION OF PROCEEDS.
(a) Any funds collected by the Indenture Trustee following an Event
of Default pursuant to this Article or otherwise under the
Indenture and the applicable Supplemental Indenture, if any, in
respect of the Notes of a series shall be applied in the
following order at the date or dates fixed by the Indenture
Trustee and, in case of the distribution of such funds on account
of principal, any premium and interest and any Additional
Amounts, upon presentation of the Note Certificate or
Certificates representing the Notes of such series and the
notation thereon of the payment if only partially paid or upon
the surrender thereof if fully paid:
FIRST: To the payment of costs and expenses, including reasonable
compensation to the Indenture Trustee and each predecessor Indenture Trustee and
their respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each predecessor
Indenture Trustee except as those adjudicated in a court of competent
jurisdiction to be the result of any such Indenture Trustee's negligence or bad
faith;
SECOND: To the payment of principal, any premium and interest,
any Additional Amounts and any other amounts then due and owing on the Notes of
such series, ratably, without preference or priority of any kind, according to
the aggregate principal amounts due and payable on such Notes;
THIRD: To the payment of any other Obligations then due and owing
with respect to such series of Notes, ratably, without preference or priority of
any kind; and
FOURTH: To the payment of any remaining balance to the Issuer for
distribution by the Administrator in accordance with the Trust Agreement.
(b) Any funds collected by the Indenture Trustee where no Event of
Default exists pursuant to Article 5 or otherwise under the
Indenture and the applicable Supplemental Indenture, if any, in
respect of Notes of a series shall be applied in the following
order at the date or dates fixed by the Indenture Trustee and, in
case of the distribution of such funds on account of principal,
any premium and interest, and any Additional Amounts, upon
presentation, if applicable, of the Note Certificate representing
the Notes of such series and the notation thereon of the payment
if only partially paid or upon the surrender thereof if fully
paid:
46
FIRST: To the payment of principal, any premium and interest, any
Additional Amounts, and any other amounts then due and owing on the Notes of
such series, ratably, without preference or priority of any kind, according to
the aggregate principal amounts due and payable on such Notes;
SECOND: To the payment of any other Obligations then due and
owing with respect to such series of Notes, ratably, without preference or
priority of any kind; and
THIRD: To the payment of any remaining balance to the Issuer for
distribution by the Administrator in accordance with the Trust Agreement.
(c) The Indenture Trustee may make distributions hereunder in cash or
in kind or, on a ratable basis, in any combination thereof.
SECTION 5.4 SUITS FOR ENFORCEMENT. If an Event of Default has
occurred, has not been waived and is continuing, the Indenture Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Indenture Trustee
shall deem most effectual to protect and enforce any of such rights, either at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Indenture Trustee by this Indenture or by
law.
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. If
the Indenture Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Indenture Trustee, then
and in every such case the Issuer and the Indenture Trustee shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Issuer, the Indenture Trustee and each Holder shall
continue as though no such proceedings had been taken.
SECTION 5.6 LIMITATIONS ON SUITS BY HOLDERS. No Holder of any Note
of any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Holder or Holders of not less than 25% in aggregate
principal amount of the Notes of such series then
Outstanding shall have made written request to the
Indenture Trustee to institute proceedings in respect of
such Event of Default in its own name as the Indenture
Trustee hereunder and shall have offered to the Indenture
Trustee such reasonable indemnity as it may require
47
against the costs, expenses and liabilities to be incurred
therein or thereby;
(iii) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have
failed to institute any such action or proceedings; and
(iv) no direction inconsistent with such written request shall
have been given to the Indenture Trustee during such
60-day period by the Holder or Holders of Notes
representing at least 66 2/3% of the aggregate principal
amount of the Notes of such series then Outstanding;
it being understood and intended, and being expressly covenanted by each Holder
of every Note of such series with each other Holder of any Note of such series
and the Indenture Trustee, that no Holder or Holders of Notes of such series
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder of any Note of such series, or to obtain or seek to obtain priority
over or preference to any other Holder of any Note of such series or to enforce
any right under this Indenture, for the equal, ratable and common benefit of all
the Holders of the Notes of such series. For the protection and enforcement of
the provisions of this Section, each Holder and the Indenture Trustee shall be
entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Note, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any), and interest on, if any, and
Additional Amounts with respect to, if any, such Note, on or after the
respective due dates expressed in such Note, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 5.7 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT.
(a) Except as provided in Section 2.7, no right or remedy herein
conferred upon or reserved to the Indenture Trustee or to any
Holder is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
(b) No delay or omission of the Indenture Trustee or of any Holder of
any Note of any series to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power or shall be construed to be
a waiver of any such Event of Default or an acquiescence therein;
and, subject to Section 5.6, every
48
power and remedy given by this Indenture or by law to the
Indenture Trustee or to any Holder may be exercised from time to
time, and as often as shall be deemed expedient, by the Indenture
Trustee or by such Holder.
SECTION 5.8 CONTROL BY THE HOLDERS.
(a) The Holders of a majority in aggregate principal amount of the
Notes of any series (with each series voting as a separate class)
at the time Outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or
power conferred on the Indenture Trustee by this Indenture,
PROVIDED that:
(i) such direction shall not be otherwise than in accordance
with law and the provisions of this Indenture; and
(ii) subject to the provisions of Section 6.1, the Indenture
Trustee shall have the right to decline to follow any such
direction if the Indenture Trustee, being advised by
counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Indenture
Trustee in good faith by its board of directors, the
executive committee, or a trust committee of directors or
Responsible Officers of the Indenture Trustee shall
determine that the action or proceedings so directed would
involve the Indenture Trustee in personal liability or if
the Indenture Trustee in good faith shall so determine
that the actions or forbearances specified in or pursuant
to such direction shall be unduly prejudicial to the
interests of any Holder of any Note of all series so
affected not joining in the giving of said direction, it
being understood that (subject to Section 6.1) the
Indenture Trustee shall have no duty to ascertain whether
or not such actions or forbearances are unduly prejudicial
to such Holder.
(b) Nothing in this Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the
Indenture Trustee and which is not inconsistent with such
direction by the Holders.
SECTION 5.9 WAIVER OF PAST DEFAULTS. Prior to the declaration of the
maturity of the Notes of any series as provided in Section 5.1, the Holder or
Holders of a majority in aggregate principal amount of the Notes of such series
at the time Outstanding (each such series voting as a separate class) may on
behalf of the Holders of all the Notes of such series waive any past default or
Event of Default hereunder and its consequences, except a default:
(i) in the payment of principal of, any premium or interest
on, or any Additional Amounts with respect to, any of the
Notes of such series; or
49
(ii) in respect of a covenant or provision hereof which cannot
be modified or amended without the consent of the Holder
of each Note of such series affected.
Upon any such waiver, such default shall cease to exist and be deemed to have
been cured and not to have occurred, and any Event of Default arising therefrom
shall be deemed to have been cured, and not to have occurred for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
ARTICLE 6
THE INDENTURE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except if an Event of Default with respect to the Notes of any
series has occurred and is continuing (and has not been cured or
waived), the Indenture Trustee undertakes to perform in a prudent
manner such duties and only such duties with respect to such
series as are specifically set forth in this Indenture. No
implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee.
(b) If an Event of Default with respect to the Notes of any series
has occurred and is continuing (and has not been cured or
waived), the Indenture Trustee shall exercise such of the rights
and powers with respect to such series 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 his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct,
except that:
(i) this subsection (c) shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) in the absence of bad faith on its part, the Indenture
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
Indenture Trustee and conforming to the requirements of
this Indenture unless a Responsible Officer of the
Indenture Trustee has actual knowledge that such
statements or opinions are false; provided that the
Indenture Trustee must examine such certificates and
opinions to determine whether they conform to the
requirements of this Indenture;
(iii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by any Responsible Officer of
the Indenture
50
Trustee, unless it shall be proved that the Indenture
Trustee was negligent in ascertaining the pertinent facts;
(iv) the Indenture Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holder or
Holders of not less than a majority in principal amount of
the Outstanding Notes of any affected series relating to
the time, method and place of conducting any proceeding
for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture
Trustee, under this Indenture with respect to the Notes;
and
(v) no provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate
indemnity against such liability is not reasonably assured
to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability
of or affording protection to the Indenture Trustee shall be
subject to the provisions of this Section.
SECTION 6.2 CERTAIN RIGHTS OF THE INDENTURE TRUSTEE. Subject to
Section 6.1:
(a) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Issuer's Certificate
(unless other evidence in respect thereof be herein specifically
prescribed);
(c) the Indenture Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to
be taken by it hereunder in good faith and in reliance on such
advice or Opinion of Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the
request, order or direction of any Holder pursuant to the
provisions of this Indenture, unless such Holder shall have
offered to the Indenture Trustee reasonable security or indemnity
against the costs, expenses and liabilities which
51
might be incurred by it in compliance with such request, order or
direction;
(e) whenever in the administration of this Indenture the Indenture
Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting
any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on its part, be deemed to be
conclusively proved and established by an Issuer's Certificate
delivered to the Indenture Trustee;
(f) the Indenture Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized
or within the discretion, rights or powers conferred upon it by
this Indenture;
(g) the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless
requested in writing so to do by the Holder or Holders of not
less than a majority in aggregate principal amount of the Notes
then Outstanding; PROVIDED that, if the payment within a
reasonable time to the Indenture Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Indenture Trustee, not
reasonably assured to the Indenture Trustee by the security
afforded to it by the terms of this Indenture, the Indenture
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses
of every such examination shall be paid by the Issuer or, if paid
by the Indenture Trustee or any predecessor trustee, shall be
repaid by the Issuer upon demand; and
(h) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys not regularly in its employ and
the Indenture Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed
with due care by it hereunder.
SECTION 6.3 NOT RESPONSIBLE FOR RECITALS, VALIDITY OF THE NOTES OR
APPLICATION OF THE PROCEEDS. The recitals contained herein and in the Notes,
except the Indenture Trustee's certificates of authentication, shall be taken as
the statements of the Issuer, and the Indenture Trustee assumes no
responsibility for the correctness of the same. The Indenture Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Notes. The Indenture Trustee shall not be accountable for the use or application
by the Issuer of any of the Notes or of the proceeds thereof.
SECTION 6.4 MAY HOLD NOTES; COLLECTIONS, ETC. The Indenture Trustee
or any agent of the Issuer or the Indenture Trustee, in its individual or any
other capacity, may become
52
the owner or pledgee of Notes with the same rights it would have if it were not
the Indenture Trustee or such agent and may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Indenture Trustee or such agent.
SECTION 6.5 FUNDS HELD BY INDENTURE TRUSTEE. Subject to the
provisions of Section 11.4, all funds received by the Indenture Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received. The Indenture Trustee (and each of its agents and
Affiliates) shall deposit all cash amounts received by it (or any such agents or
Affiliates) that are derived from the series Collateral for any series of Notes
for the benefit of the Holders of such series of Notes in a segregated account
maintained or controlled by the Indenture Trustee, consistent with the rating of
the Outstanding Notes of such series. Neither the Indenture Trustee nor any
agent of the Issuer or the Indenture Trustee shall be under any liability for
interest on any funds received by it hereunder.
SECTION 6.6 COMPENSATION; REIMBURSEMENT; INDEMNIFICATION.
(a) The Issuer covenants and agrees:
(i) to pay to the Indenture Trustee from time to time, and the
Indenture Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an
express trust);
(ii) except as otherwise provided herein, to pay or reimburse
the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by
the Indenture Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may
arise from its negligence or bad faith; and
(iii) to indemnify the Indenture Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration
of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending
itself against or investigating any claim of liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
(b) The obligations of the Issuer under this Section to compensate
and indemnify the Indenture Trustee and to pay or reimburse the
Indenture Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive
the satisfaction and
53
discharge of this Indenture and any resignation or removal of the
Indenture Trustee.
(c) Following an Event of Default, such additional indebtedness shall
be a senior claim to that of the Notes upon all property and
funds held or collected by the Indenture Trustee as such, except
funds held in trust for the benefit of the Holders of particular
Notes, and the Notes are hereby subordinated to such senior
claim.
SECTION 6.7 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
(a) There shall at all times be an Indenture Trustee hereunder which
shall:
(i) be a banking corporation authorized under its laws of
incorporation and the laws of the jurisdiction in which it
administers this Indenture and any Supplemental Indenture
to exercise corporate trust powers, having an aggregate
capital, surplus of at least $50,000,000; provided that if
such banking corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of
its Federal, State or other governmental supervisor, then
for the purposes of this Section, the aggregate capital,
surplus and undivided profits of such banking corporation
shall be deemed to be its aggregate capital, surplus and
undivided profits as set forth in its most recent report
of condition so published;
(ii) not be affiliated (as such term is defined in Rule 405
under the Securities Act) with the Issuer or with any
Person involved in the organization or operation of the
Issuer; and
(iii) not offer or provide credit or credit enhancement to the
Issuer.
(b) If at any time the Indenture Trustee shall cease to be eligible
in accordance with the provisions of Section 6.7(a) with respect
to the Notes of any series, the Indenture Trustee shall resign
immediately with respect to the Notes of such series in the
manner and with the effect specified in Section 6.8.
SECTION 6.8 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE.
(a) The Indenture Trustee may at any time resign with respect to one
or more or all series of Notes by giving not less than 90 days'
prior written notice of resignation to the Issuer and to the
Holders of such Notes as provided in this Indenture. Upon
receiving such notice of resignation, the Issuer shall promptly
cause a successor trustee with respect to the applicable series
to be appointed by written instrument in duplicate, executed by
the Issuer, one copy of which instrument shall be delivered to
the resigning trustee and one copy to the successor trustee of
such series. If no successor
54
trustee shall have been so appointed with respect to any series
and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning trustee may petition
any court of competent jurisdiction for the appointment of a
successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) If at any time:
(i) the Indenture Trustee shall cease to be eligible in
accordance with the provisions of Section 6.7(a) or any
applicable Supplemental Indenture and shall fail to resign
with respect to Notes of each applicable series pursuant
to Section 6.7(b) or following written request therefor by
the Issuer or by any such Holder pursuant to Section
6.8(c);
(ii) the Indenture Trustee shall become incapable of acting
with respect to the applicable series of Notes, or shall
be adjudged as bankrupt or insolvent, or a receiver or
liquidator of the Indenture Trustee or of its property
shall be appointed, or any public officer shall take
charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation; or
(iii) The Indenture Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the
Trust Indenture Act with respect to Notes of any series
after written request therefor by the Issuer or any Holder
of a Note of such series who has been a bona fide Holder
of a Note of such series or at least six months;
then, in any such case, except during the existence of an Event of Default, the
Issuer may remove the Indenture Trustee with respect to the applicable series
and appoint a successor trustee with respect to the applicable series of Notes
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the Indenture Trustee so removed and one copy to the successor
trustee.
(c) In addition to the right of petition given to the resigning
trustee and the right of removal given to the Issuer under
Sections 6.8(a) and 6.8(b), respectively, any Holder who has been
a Holder of Notes for at least six months may, on behalf of
itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor trustee
or the removal of the Indenture Trustee and the appointment of a
successor trustee, as the case may be. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee or remove the Indenture Trustee and
appoint a successor trustee, as the case may be.
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(d) The Holder or Holders of a majority of the aggregate principal
amount of the Notes of each series at the time Outstanding may at
any time remove the Indenture Trustee with respect to the Notes
of such series and appoint a successor trustee with respect to
the Notes of such series by delivering to the Indenture Trustee
so removed, to the successor trustee so appointed and to the
Issuer the evidence provided for in Section 8.1 of the action in
that regard taken by a Holder.
(e) Any resignation or removal of the Indenture Trustee with respect
to any series and any appointment of a successor trustee with
respect to such series pursuant to any of the provisions of this
Section 6.8 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 6.9.
SECTION 6.9 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.
(a) Every successor trustee appointed as provided in Section 6.8
shall execute, acknowledge and deliver to the Issuer and to its
predecessor trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the predecessor trustee
with respect to all or any applicable series shall become
effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all rights, powers,
duties and obligations with respect to such series of its
predecessor hereunder, with like effect as if originally named as
trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to act
shall, subject to Section 11.4, pay over to the successor trustee
all funds at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in
and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a
claim upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
(b) If a successor trustee is appointed with respect to the Notes of
one or more (but not all) series, the Issuer, the predecessor
Indenture Trustee and each successor trustee with respect to the
Notes of any applicable series shall execute and deliver a
Supplemental Indenture which shall contain such provisions as
shall be deemed necessary or desirable to conform that all the
rights, powers, trusts and duties of the predecessor Indenture
Trustee with respect to the Notes of any series as to which the
predecessor Indenture Trustee is not retiring shall continue to
be vested in the predecessor Indenture Trustee, and shall add to
or change any of the provisions of this Indenture as shall be
necessary to provide for or
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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 under separate indentures.
(c) Upon acceptance of appointment by a successor Indenture Trustee
as provided in this Section 6.9, the Issuer shall notify each
Holder of any Note of any applicable series. If the acceptance of
appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence
may be combined with the notice called for by Section 6.8. If the
Issuer fails to make such notice within 10 days after acceptance
of appointment by the successor Indenture Trustee, the successor
Indenture Trustee shall cause such notice to be mailed at the
expense of the Issuer.
SECTION 6.10 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF INDENTURE TRUSTEE.
(a) Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Indenture Trustee shall be a party, or
any corporation succeeding to all or substantially all of the
corporate trust business of the Indenture Trustee, shall be the
successor of the Indenture Trustee under this Indenture, PROVIDED
that such corporation shall be eligible under the provisions of
Section 6.7, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
(b) In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Notes
of a series shall have been authenticated but not delivered, any
such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor Indenture Trustee and
deliver such Notes so authenticated; and, in case at that time
any of the Notes of a series shall not have been authenticated,
any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the
name of the successor Indenture Trustee; and in all such cases
such certificate shall have the full force; PROVIDED, that the
right to adopt the certificate of authentication of any
predecessor Indenture Trustee or to authenticate Notes of such
series in the name of any predecessor Indenture Trustee shall
apply only to its successor or successors by merger, conversion
or consolidation.
SECTION 6.11 LIMITATIONS ON RIGHTS OF INDENTURE TRUSTEE AS CREDITOR.
The Indenture Trustee shall comply with Section 311(a) of the Trust Indenture
Act.
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ARTICLE 7
HOLDERS LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER
SECTION 7.1 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES
OF HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the
Issuer shall furnish or cause to be furnished to the Indenture Trustee:
(a) semi-annually with respect to Notes of each series not later than
June 30 and December 31 of the year or upon such other dates as
are set forth in or pursuant to a Note Certificate or
Supplemental Indenture for such series, a list, in each case in
such form as the Indenture Trustee may reasonably require, of the
names and addresses of Holders as of the applicable date, and
(b) at such other times as the Indenture Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
PROVIDED, HOWEVER, that so long as the Indenture Trustee is the Registrar no
such list shall be required to be furnished.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
The Indenture Trustee shall comply with the obligations imposed upon
it pursuant to Section 312 of the Trust Indenture Act. Every Holder of Notes, by
receiving and holding the same, agrees with the Issuer and the Indenture Trustee
that neither the Issuer, the Indenture Trustee, any Paying Agent or any
Registrar shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Notes in accordance
with Section 312(c) of the Trust Indenture Act, regardless of the source from
which such information was derived, and that the Indenture Trustee shall not be
held accountable by reason of mailing any material pursuant to a request made
under Section 312(b) of the Trust Indenture Act.
SECTION 7.3 REPORTS BY INDENTURE TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 following the first issuance of Notes, if required
by Section 313(a) of the Trust Indenture Act, the Indenture
Trustee shall transmit, pursuant to Section 313(c) of the Trust
Indenture Act, a brief report dated as of May 15 with respect to
any of the events specified in Section 313(a) of the Trust
Indenture Act which may have occurred since the later of the
immediately preceding May 15 and the date of this Indenture.
(b) The Indenture Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the time specified
therein.
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(c) The Indenture Trustee shall comply with Section 313(b) of the
Trust Indenture Act.
(d) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d)
of the Trust Indenture Act.
(e) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Indenture Trustee with
each stock exchange upon which the Notes are listed, with the
Commission and the Issuer. The Issuer will notify the Indenture
Trustee when any of the Notes are listed on any stock exchange.
(f) The Issuer shall furnish to the Indenture Trustee:
(i) promptly after the execution and delivery of this
Indenture or a Supplemental Indenture relating to the
addition of Collateral, an Opinion of Counsel stating
that, in the opinion of such counsel, this Indenture, and
all other instruments of further assurance have been
properly recorded, registered and filed to the extent
necessary to make effective the Security Interest intended
to be created by this Indenture, and reciting the details
of such action or referring to prior opinions of counsel
in which such details are given, or stating that, in the
opinion of such counsel, no such action is necessary to
make such Security Interests effective; and
(ii) at least annually beginning with the year 2003, an Opinion
of Counsel, dated as of such date, either stating that, in
the opinion of such counsel, such action has been taken
with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of (i) this
Indenture and all Supplemental Indentures and amendments
thereto, and (ii) financing statement, continuation
statements or other instruments of further assurances, as
is necessary to maintain the Security Interest of this
Indenture and reciting the details of such action or
referring to prior Opinions of Counsel in which such
details are given, and stating that all financing
statements and continuation statements have been executed
and filed that are necessary to preserve and protect the
rights of the Holders and the Indenture Trustee hereunder,
or stating that, in the opinion of such counsel, no such
action is necessary to maintain such Security Interest.
SECTION 7.4 REPORTS BY ISSUER.
Pursuant to Section 314(a) of the Trust Indenture Act, the Issuer
shall:
(a) file with the Indenture Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the
annual reports and of
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the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Issuer may
be required to file with the Commission 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 Indenture
Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed form time to
time in such rules and regulations;
(b) file with the Indenture Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Issuer, with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(c) transmit within 30 days after the filing thereof with the
Indenture Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, 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 Commission.
ARTICLE 8
CONCERNING EACH HOLDER
SECTION 8.1 EVIDENCE OF ACTION TAKEN BY A HOLDER.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by any Holder with respect to the Notes of any series may
be embodied in and evidenced (i) by any instrument or any number
of instruments of similar tenor executed by Holders in person or
by agent or proxy appointed in writing, or (ii) by the record of
the Holders of Notes voting in favor thereof at any meeting of
Holders duly called and held in accordance with the provisions of
Article 12, or (iii) by a combination of such instrument or
instruments and any such record of such meeting of Holders.
Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are
delivered to the Indenture Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Indenture
Trustee and the Issuer, if made in the manner provided in this
Article. The record of any
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meeting of Holders of Notes shall be proved in the manner
provided in Section 12.6.
(b) Any request, demand, authorization, direction, notice, consent,
waiver or other action of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Indenture Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made
upon such Note.
SECTION 8.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
NOTES.
(a) Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Holder or its agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed
by the Indenture Trustee or in such manner as shall be
satisfactory to the Indenture Trustee.
(b) The ownership, principal amount and serial numbers of Notes of
any series shall be proved by the Note Register for such series
or by a certificate of the Indenture Trustee.
SECTION 8.3 VOTING RECORD DATE. The Issuer may set a record date for
purposes of determining the identity of each Holder of any Note of any series
entitled to vote or consent to any action with respect to such series referred
to in Section 8.1, which record date may be set at any time or from time to time
by notice to the Indenture Trustee, for any date or dates (in the case of any
adjournment or resolicitation) not more than 60 days nor less than 5 days prior
to the proposed date of such vote or consent, and thereafter, notwithstanding
any other provisions hereof, only a Holder of any Note of such series on such
record date shall be entitled to so vote or give such consent or to withdraw
such vote or consent.
SECTION 8.4 PERSONS DEEMED TO BE OWNERS. The Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture Trustee may deem and treat
the Holder of any Note of any series of Notes as the absolute owner of such Note
(whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of, any premium on, and, subject to the provisions
of this Indenture, any interest on, and any Additional Amounts with respect to,
such Note and for all other purposes; and neither the Issuer nor the Indenture
Trustee nor any agent of the Issuer or the Indenture Trustee shall be affected
by any notice to the contrary. All such payments so made to any such Person, or
upon such Person's order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for funds payable upon
any such Note.
SECTION 8.5 NOTES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount of
Notes of any or all series have concurred in any direction, consent or waiver
under this Indenture, Notes of such series which are owned by the Issuer or any
other obligor on the Notes with respect to which the
61
determination is being made or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer or
any other obligor on the Notes with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Indenture Trustee shall be protected in relying on any such direction, consent
or waiver only Notes which the Indenture Trustee knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Issuer or any other obligor upon the Notes or any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the Notes. In
case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Indenture Trustee in
accordance with such advice. Upon request of the Indenture Trustee, the Issuer
shall furnish to the Indenture Trustee promptly an Issuer's Certificate listing
and identifying all Notes, if any, known by the Issuer to be owned or held by or
for the account of any of the above-described Persons; and, subject to Sections
6.1 and 6.2, the Indenture Trustee shall be entitled to accept such Issuer's
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are Outstanding for the purpose of any
such determination.
SECTION 8.6 RIGHT OF REVOCATION OF ACTION TAKEN; BINDING EFFECT OF
ACTIONS BY HOLDERS.
(a) At any time prior to (but not after) the evidencing to the
Indenture Trustee, as provided in Section 8.1, of the taking of
any action by the Holders of the percentage in aggregate
principal amount of the Notes of any or all series specified in
this Indenture in connection with such action, any Holder of a
Note represented by a Note Certificate the serial number of which
is shown by the evidence to be included among the serial numbers
of the Note Certificates representing Notes the Holders of which
have consented to such action may, by filing written notice at
the Corporate Trust Office and upon proof of holding as provided
in this Article, revoke such action so far as concerns such Note.
(b) Any action taken by the Holders of the percentage in aggregate
principal amount of the Notes of any or all series specified in
this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Indenture Trustee and
the Holders of all the Notes affected by such action, of any
Notes issued in exchange for any Notes affected by such action or
any Notes represented by Note Certificates executed,
authenticated and delivered in exchange for any Note Certificate
representing any Notes affected by such action, in respective of
whether or not any notation in regard of any such action is made
on any applicable Note Certificate.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
(a) The Issuer and the Indenture Trustee may from time to time and at
any time enter into an indenture or indentures supplemental
hereto (each, a "SUPPLEMENTAL INDENTURE") (which shall conform to
the provisions of the Trust Indenture Act) for one or more of the
following purposes without the consent of any Holder:
(i) for the Issuer to convey, transfer, assign, mortgage or
pledge to the Indenture Trustee as security for the Notes
of one or more series any property or assets;
(ii) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the
Issuer and the Indenture Trustee shall consider to be for
the protection of each Holder of any Note, and to make the
occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; PROVIDED,
that in respect of any such additional covenant,
restriction, condition or provision such Supplemental
Indenture may provide for a particular period of grace
after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such an Event of Default
or may limit the remedies available to the Indenture
Trustee upon such an Event of Default or may limit the
right of the Holders of a majority in aggregate principal
amount of the Notes of such series to waive such an Event
of Default;
(iii) to cure any ambiguity or to correct or supplement any
provision contained herein or in any Supplemental
Indenture or Note Certificate which may be defective or
inconsistent with any other provision contained herein or
in any Supplemental Indenture or Note Certificate; or to
make such other provisions in regard to matters or
questions arising under this Indenture or under any
Supplemental Indenture or Note Certificate as the Issuer
may deem necessary or desirable and which shall not
adversely affect the interests of the Holders of the Notes
in any material respect;
(iv) to establish the form or terms of Notes of any series as
permitted by Section 2.2; or
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(v) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Notes
of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the
requirements of Section 6.9.
(b) The Indenture Trustee is hereby authorized to join with the
Issuer in the execution of any such Supplemental Indenture, to
make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, but
the Indenture Trustee shall not be obligated to enter into any
such Supplemental Indenture which affects the Indenture Trustee's
own rights, duties or immunities under this Indenture or
otherwise.
(c) Any Supplemental Indenture authorized by the provisions of this
section may be executed without the consent of any Holder of any
Note at the time Outstanding, notwithstanding any of the
provisions of Section 9.2.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
(a) With the consent (evidenced as provided in Article 8) of the
Holders of not less than 66 2/3% in aggregate principal amount of
the Notes at the time Outstanding of all series affected by such
Supplemental Indenture (voting as a single class), the Issuer and
the Indenture Trustee may, from time to time and at any time,
enter into a Supplemental Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any Supplemental Indenture or
Note Certificate or of modifying in any manner the rights of the
Holders of the Notes of each such series; PROVIDED, that no such
Supplemental Indenture shall:
(i) extend the final maturity of any Note, or reduce the
principal amount thereof, or reduce the rate or extend the
time of payment of interest or any other amount payable
thereon, or impair or affect the right of any Holder to
institute suit for the payment thereof without the consent
of the Holder of each Note so affected or modify any
redemption or repayment provisions applicable to such
series of Notes;
(ii) permit the creation of any Lien on the Collateral or any
part thereof (other than the Security Interest in favor of
the Indenture Trustee on behalf of the Holders) or
terminate the Security Interest as to any part of the
Collateral, except as permitted by this Indenture; or
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(iii) modify any of the provisions of this Section 9.2 except to
increase the aforementioned percentage of Notes required
to approve any Supplemental Indenture.
(b) Upon the request of the Issuer, and upon the filing with the
Indenture Trustee of evidence of the consent of each Holder and
other documents, if any, required by Section 8.1 the Indenture
Trustee shall join with the Issuer in the execution of such
Supplemental Indenture unless such Supplemental Indenture affects
the Indenture Trustee's own rights, duties or immunities under
this Indenture or otherwise, in which case the Indenture Trustee
may in its discretion, but shall not be obligated to, enter into
such Supplemental Indenture.
(c) It shall not be necessary for the consent of the Holders under
this section to approve the particular form of any proposed
Supplemental Indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
(d) Promptly after the execution by the Issuer and the Indenture
Trustee of any Supplemental Indenture pursuant to the provisions
of this Section, the Indenture Trustee shall notify the Holders
of each Note of each series affected thereby, as provided in this
Indenture, setting forth in general terms the substance of such
Supplemental Indenture. Any failure of the Indenture Trustee to
provide such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such Supplemental
Indenture.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF
SUPPLEMENTAL INDENTURE. Any Supplemental Indenture executed pursuant to the
provisions of this Article shall comply with the Trust Indenture Act. Upon the
execution of any Supplemental Indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Indenture Trustee, the Issuer and
each Holder of Notes of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
Supplemental Indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.4 DOCUMENTS TO BE GIVEN TO INDENTURE TRUSTEE. The
Indenture Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Issuer's Certificate and an Opinion of Counsel as conclusive evidence
that any such Supplemental Indenture complies with the applicable provisions of
this Indenture.
SECTION 9.5 NOTATION ON NOTE CERTIFICATES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Any Note Certificate of any series authenticated and delivered after
the execution of any Supplemental Indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Indenture Trustee for such
series as to any matter provided for by such
65
Supplemental Indenture or as to any action taken at any such meeting. If the
Issuer or the Indenture Trustee shall so determine, a new Note Certificate
representing Notes of any series so modified as to conform, in the opinion of
the Indenture Trustee and the Issuer, to any modification of this Indenture
contained in any such Supplemental Indenture may be prepared by the Issuer,
authenticated by the Indenture Trustee and delivered in exchange for each Note
Certificate representing Notes of such series then Outstanding.
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 ISSUER MAY NOT MERGE, CONSOLIDATE, SELL OR CONVEY
PROPERTY. The Issuer may not consolidate with, or merge into, any Person
(whether or not affiliated with the Issuer), or sell, lease or convey the
property of the Issuer as an entirety or substantially as an entirety, unless:
(a) the entity formed by such consolidation or into which the Issuer
is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Issuer substantially as an
entirety shall be a statutory trust organized in series under the
laws of the State of Delaware or a corporation or other entity
organized and existing under the laws of the United States of
America or any State or the District of Columbia, and shall
expressly assume, by a Supplemental Indenture, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal
of, any premium and interest on, and any Additional Amounts with
respect to, all the Notes and the performance of every covenant
of this Indenture on the part of the Issuer to be performed or
observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and
be continuing;
(c) the Issuer has received written confirmation from any rating
agency then rating any Notes at the request of the Issuer that
such consolidation, merger, conveyance or transfer shall not
cause the rating on the then outstanding Notes to be downgraded
or withdrawn; and
(d) the Issuer has delivered to the Indenture Trustee an Issuer's
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such
Supplemental Indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS
SECTION 11.1 SATISFACTION AND DISCHARGE OF INDENTURE. If at any time
(a) the Issuer shall have paid or caused to be paid all outstanding principal
of, any premium and interest
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on, and any Additional Amounts and other amounts payable with respect to, all
the Notes of any series Outstanding hereunder, as and when the same shall have
become due and payable, or (b) the Issuer shall have delivered to the Indenture
Trustee for cancellation all Note Certificates representing Notes of any series
theretofore authenticated (other than any Note Certificate which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.7) or (c) the Issuer shall have irrevocably deposited or caused to
be deposited with the Indenture Trustee as trust funds the entire amount in cash
(other than funds repaid by the Indenture Trustee or any Paying Agent to the
Issuer in accordance with Section 11.4) sufficient to pay at maturity all
amounts payable at maturity on the Notes of such series represented by each Note
Certificate not theretofore delivered to the Indenture Trustee for cancellation,
including any principal, interest, premium, Additional Amounts and other amounts
due or to become due to such date of maturity as the case may be, and if, in any
such case, the Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer, then this Indenture shall cease to be of further effect
(except as to (i) rights of registration of transfer and exchange, (ii)
substitution of apparently mutilated, defaced, destroyed, lost or stolen Note
Certificates, (iii) rights of Holders to receive payments of principal of, any
premium and interest on, and any Additional Amounts and other amounts payable
with respect to, the Notes of such series, (iv) the rights, obligations and
immunities of the Indenture Trustee hereunder and (v) the rights of each Holder
as beneficiary hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them), and the Indenture Trustee, on
demand of the Issuer accompanied by an Issuer's Certificate and an Opinion of
Counsel and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture.
The Issuer agrees to reimburse the Indenture Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Indenture
Trustee for any services thereafter reasonably and properly rendered by the
Indenture Trustee in connection with this Indenture or the Notes of such series.
SECTION 11.2 APPLICATION BY INDENTURE TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF NOTES. Subject to Section 11.4, all funds deposited with the
Indenture Trustee pursuant to Section 11.1 shall be held in trust in accordance
with Section 6.5 and applied by it to the payment, either directly or through
any Paying Agent (including the Issuer acting as its own paying agent), to each
Holder of any Note for the payment or redemption of which such funds have been
deposited with the Indenture Trustee, of all sums due and to become due thereon
for any principal, interest, premium, Additional Amounts or other amounts.
SECTION 11.3 REPAYMENT OF FUNDS HELD BY PAYING AGENT. In connection
with the satisfaction and discharge of this Indenture with respect to Notes of
any series all funds then held by any Paying Agent under the provisions of this
Indenture with respect to such series of Notes shall, upon demand of the Issuer,
be repaid to the Issuer or paid to the Indenture Trustee and thereupon such
Paying Agent shall be released from all further liability with respect to such
funds.
SECTION 11.4 RETURN OF FUNDS HELD BY INDENTURE TRUSTEE AND PAYING
AGENT. Any funds deposited with or paid to the Indenture Trustee or any Paying
Agent for the payment of the principal of, any interest or premium on, or any
Additional Amounts or any other amounts with respect to, any Note of any series
and not applied but remaining unclaimed for three years after the date upon
which such principal, interest, premium, Additional Amounts or any other
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amount shall have become due and payable, shall, upon the written request of the
Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Indenture Trustee for such series or such Paying Agent, and the Holder of such
Note of such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Issuer for any payment which such Holder may be entitled to collect, and
all liability of the Indenture Trustee or any Paying Agent with respect to such
funds shall thereupon cease.
ARTICLE 12
MEETINGS OF HOLDERS OF NOTES
SECTION 12.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Notes of any series may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Notes of such series.
SECTION 12.2 CALL, NOTICE AND PLACE OF MEETINGS.
(a) Unless otherwise provided in a Note Certificate, the Indenture
Trustee may at any time call a meeting of Holders of Notes of any
series for any purpose specified in Section 12.1, to be held at
such time and at such place in the City of New York or the city
in which the Corporate Trust Office is located. Notice of every
meeting of Holders of Notes of any series, setting forth the time
and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given in the
manner provided in Section 13.4, not less than 21 nor more than
180 days prior to the date fixed for the meeting.
(b) In case at any time the Issuer or the Holder or Holders of at
least 10% in principal amount of the Notes of any series then
Outstanding shall have requested the Indenture Trustee to call a
meeting of the Holders of Notes of such series for any purpose
specified in Section 12.1, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Indenture Trustee shall not have made the first
publication or mailing of the notice of such meeting within 21
days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then
the Issuer or the Holder or Holders of Notes of such series in
the amount above specified, as the case may be, may determine the
time and the place in the City of New York or the city in which
the Corporate Trust Office is located for such meeting and may
call such meeting for such purposes by giving notice thereof as
provided in Section 12.2.
SECTION 12.3 PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Notes of any series, a Person shall be (a) a
Holder of one or more
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Notes of such series then Outstanding, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more Notes of
such series then Outstanding by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of Notes
of any series shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Indenture Trustee and its counsel and any
representatives of the Issuer and its counsel.
SECTION 12.4 QUORUM; ACTION.
(a) The Persons entitled to vote a majority in principal amount of
the Notes of a series then Outstanding shall constitute a quorum
for a meeting of Holders of Notes of such series; PROVIDED,
HOWEVER, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66 2/3% in
principal amount of the Outstanding Notes of a series, then
Persons entitled to vote 66 2/3% in principal amount of the
Outstanding Notes of such series shall constitute a quorum. In
the absence of a quorum within 30 minutes after the time
appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Notes of such series, be dissolved. In
any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section
12.2, except that such notice need be given only once not less
than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Notes
of such series which shall constitute a quorum.
(b) Except as limited by the proviso to Section 9.2(a), any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted only by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Notes of that series;
PROVIDED, HOWEVER, that, except as limited by the proviso to
Section 9.2(a), any resolution with respect to any consent or
waiver which this Indenture expressly provides may be given by
the Holders of not less than 66 2/3% in principal amount of the
Outstanding Notes of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present
as aforesaid only by the affirmative vote of the Holders of
66 2/3% in principal amount of the Outstanding Notes of that
series; and PROVIDED, FURTHER, that, except as limited by the
proviso to Section 9.2(a), any resolution with respect to any
request, demand, authorization, direction, notice, consent,
waiver or other
69
action which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Notes of
a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Notes of such series.
(c) Any resolution passed or decision taken at any meeting of Holders
of Notes of any series duly held in accordance with this Section
shall be binding on all the Holders of Notes of such series,
whether or not such Holders were present or represented at the
meeting.
SECTION 12.5 DETERMINATION OF VOTING RIGHTS; CONDUCT OF ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Indenture Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of Notes of such series
in regard to proof of the holding of Notes of such series and of
the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Notes shall be
proved in the manner specified in Section 8.4 and the appointment
of any proxy shall be proved in the manner specified in Section
8.2. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 8.2 or other
proof.
(b) The Indenture Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Issuer or by Holders of Notes as provided
in Section 12.2(b), in which case the Issuer or the Holders of
Notes of the series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Notes of such series
represented at the meeting.
(c) At any meeting, each Holder of a Note of such series or proxy
shall be entitled to one vote for each $1,000 of principal amount
of Notes of such series held or represented by such Holder or
proxy; PROVIDED, HOWEVER, that no vote shall be cast or counted
at any meeting in respect of any Note challenged as not
Outstanding and ruled by the chairman of the meeting to
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be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Note of such series or
proxy.
(d) Any meeting of Holders of Notes of any series duly called
pursuant to Section 12.2 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Notes of such
series represented at the meeting; and the meeting may be held as
so adjourned without further notice.
SECTION 12.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The
vote upon any resolution submitted to any meeting of Holders of Notes of any
series shall be (a) by written ballots on which shall be subscribed the
signatures of the Holders of Notes of such series or of their representatives by
proxy and the principal amounts and serial numbers of the Outstanding Notes of
such series held or represented by them or (b) by such other procedures adopted
by the Indenture Trustee in its discretion. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Notes of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 12.2 and, if applicable, Section 12.4. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Issuer, and another to
the Indenture Trustee to be preserved by the Indenture Trustee, the latter to
have attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1 NO RECOURSE. Notwithstanding anything to the contrary
contained in this Indenture, or any relevant Note Certificate or Supplemental
Indenture, none of the Funding Agreement Provider, its officers directors,
affiliates, employees or agents, or any of the Delaware Trustee, the Trust
Beneficial Owner or the Series Beneficial Owner, or any of their officers,
directors, affiliates, employees or agents (the "NONRECOURSE PARTIES") will be
personally liable for the payment of any principal, interest or any other sums
at any time owing under the terms of the Notes. If any Event of Default shall
occur with respect to the Notes of any series, the right of the Holders of the
Notes and the Indenture Trustee on behalf of such Holders in connection with a
claim on the Notes shall be limited solely to a proceeding against the relevant
Collateral. Neither such Holders nor the Indenture Trustee on behalf of such
Holders will have the right to proceed against the Nonrecourse Parties or any
other series of the Issuer to enforce the Notes (except that to the extent they
exercise their rights, if any, to seize the relevant Funding Agreement, they may
enforce the relevant Funding Agreement against the Funding Agreement Provider)
or for any deficiency judgment remaining after foreclosure of any property
included in the relevant Collateral.
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It is expressly understood and agreed that nothing contained in this
Section shall in any manner or way constitute or be deemed a release of the debt
or other obligations evidenced by the Notes of any series or otherwise affect or
impair the enforceability against the Issuer with respect to the relevant series
of the Issuer of the liens, assignments, rights and Security Interests created
by or pursuant to this Indenture, the relevant Collateral or any other
instrument or agreement evidencing, securing or relating to the indebtedness or
the obligations evidenced by the Notes of a series. Nothing in this Section
shall preclude the Holders from foreclosing upon any property included in the
relevant Collateral or any other rights or remedies in law or in equity against
the Issuer with respect to the relevant series of the Issuer.
Holders may not seek to enforce rights with respect to any Notes (i)
by commencing any recovery or enforcement proceedings against the Issuer
generally or with respect to the relevant series of the Issuer, (ii) by applying
to wind up the Issuer, (iii) otherwise than through the Indenture Trustee in
exercise of powers, appointing a receiver or administrator to the Issuer or any
of the assets of the Issuer generally or with respect to the relevant series of
the Issuer, (iv) by making any statutory demand upon the Issuer or with respect
to the relevant series of the Issuer under applicable corporation law, or (v) in
any other manner except as may be provided in this Indenture, and any applicable
Note Certificate or Supplemental Indenture.
SECTION 13.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES
AND HOLDERS. Nothing in this Indenture or in the Notes, expressed or implied,
shall give or be construed to give to any Person, other than the parties hereto
and their successors and the Holders of the Notes, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Notes.
SECTION 13.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.4 NOTICES AND DEMANDS ON ISSUER, INDENTURE TRUSTEE AND ANY
HOLDER.
(a) Except as otherwise provided by this Section, any notice or
demand which by any provision of this Indenture is required or
permitted to be given or served by the Indenture Trustee or by
any Holder of any Note to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another
address of the Issuer is filed by the Issuer with the Indenture
Trustee) to the Delaware Trustee. Any notice, direction, request
or demand by the Issuer or any Holder to or upon the Indenture
Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made at the Corporate Trust Office.
(b) Where this Indenture provides for notice to any Holder, such
notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder entitled
72
thereto, at such Holder's last address as it appears in the
applicable Note Register. In any case where notice to any Holder
is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to any
other Holder.
(c) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by any
Holder shall be filed with the Indenture Trustee, but such filing
shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
(d) If, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the
Issuer and each Holder when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of
giving such notice as shall be satisfactory to the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 13.5 ISSUER'S CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN.
(a) Except as otherwise expressly provided in this Indenture, upon
any application or demand by the Issuer to the Indenture Trustee
to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Indenture Trustee an Issuer's
Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Indenture Trustee with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(i) a statement that the Person 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;
73
(iii) a statement that, in the opinion of such Person, he has
made such examination or investigation or has received
such certificates, opinions, representations or statements
of counsel or accountants pursuant to paragraphs (c) or
(d) of this Section, as are 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
Person, such condition or covenant has been complied with.
(c) Any certificate, statement or opinion of the Issuer may be based
upon a certificate or opinion of or representations by counsel,
unless the Issuer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters
information with respect to which is in the possession of the
Issuer, upon the certificate, statement or opinion of or
representations by the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
(d) Any certificate, statement or opinion of the Issuer or of counsel
may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Issuer, unless such
officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are
erroneous.
(e) Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a
statement that such firm is independent.
SECTION 13.6 GOVERNING LAW. This Indenture and the Notes of each
series shall (unless specified otherwise in the Notes of such series) be
governed by, and construed in accordance with, the laws of the State of New
York, except as required by mandatory provisions of law and except to the extent
that the validity or perfection of the Issuer's ownership of and security
interest in the Funding Agreements or remedies under this Indenture in respect
thereof may be governed by the laws of a jurisdiction other than the State of
New York. All judicial proceedings brought against the Issuer or the Indenture
Trustee arising out of or relating to the Indenture, any Note or any portion of
the Collateral or other assets of the Issuer may be brought in any state or
federal court in the State of New York, provided that any series of Notes may
74
specify other jurisdictions as to which the Issuer may consent to the
nonexclusive jurisdiction of its courts with respect to such series of Notes.
SECTION 13.7 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 13.8 CONCERNING THE DELAWARE TRUSTEE. It is expressly
understood and agreed by the parties that (a) this Indenture is executed and
delivered by Wilmington Trust Company, not individually or personally, but
solely as Delaware Trustee, in the exercise of the powers and authority
conferred and vested in it, pursuant to the Trust Agreement, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
of binding only the Issuer, (c) nothing contained herein shall be construed as
creating any liability on Wilmington Trust Company individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
person claiming by, through or under the parties hereto, and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer generally or with respect
to any series of the Issuer or be liable for any breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Indenture or any other related documents; provided, however,
that such waiver shall not affect the liability of Wilmington Trust Company (or
any entity acting as successor or additional trustee) to any Person under any
other agreement to the extent expressly agreed to in its individual capacity
under the Trust Agreement.
SECTION 13.9 EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 13.10 TRUST INDENTURE ACT TO CONTROL. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with any
duties under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof (each, an "INCORPORATED PROVISION"), such incorporated
provision shall control.
SECTION 13.11 JUDGMENT CURRENCY. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that:
(a) if for the purposes of obtaining judgment in any court it is
necessary to convert the sum due in respect of the Notes of any
series in the Specified Currency into a currency in which a
judgment will be rendered (the "JUDGMENT CURRENCY"), the rate of
exchange used (the "REQUIRED RATE OF EXCHANGE") shall be the rate
at which in accordance with normal banking procedures the
Indenture Trustee could purchase in The City of New York the
Specified Currency with the Judgment Currency on the date on
which final unappealable judgment is entered, unless such day is
not a New York Banking Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at
which in accordance with
75
normal banking procedures the Indenture Trustee could purchase in
The City of New York the Specified Currency with the Judgment
Currency on the New York Banking Day preceding the day on which
final unappealable judgment is entered;
(b) its obligations under this Indenture to make payments in the
Specified Currency (i) shall not be discharged or satisfied by
any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency
other than the Specified Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Specified Currency expressed to
be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose
of recovering in the Specified Currency the amount, if any, by
which such actual receipt shall fall short of the full amount of
the Specified Currency so expressed to be payable and (iii) shall
not be affected by judgment being obtained for any other sum due
under this Indenture; and
(c) it shall indemnify the Holder or Holders of any Note against any
loss incurred as a result of any variation between:
(i) the rate of exchange at which the Specified Currency
amount is actually converted into the Judgment Currency
for the purpose of that judgment or order; and
(ii) the Required Rate of Exchange.
For purposes of this Section, "NEW YORK BANKING DAY" means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to close.
ARTICLE 14
SECURITY INTEREST
SECTION 14.1 SECURITY INTEREST.
(a) To secure the full and punctual payment of the Obligations with
respect to each series of Notes in accordance with the terms
thereof and to secure the performance of the Issuer's obligations
under such Notes and this Indenture, the Issuer hereby pledges
and collaterally assigns to and with the Indenture Trustee for
the benefit of each Holder of each Note of such series and any
other Person for whose benefit the Indenture Trustee is holding
the applicable series Collateral, and will grant to the Indenture
Trustee for the benefit of each Holder of each such Note and any
other Person for whose benefit the Indenture Trustee is holding
the applicable series Collateral, a security interest in the
series Collateral specified in each applicable Note Certificate
or in the applicable Supplemental Indenture as securing the
Obligations with respect to such series of Notes,
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and all of the rights and privileges of the Issuer with respect
to the applicable series of the Issuer in and to such series
Collateral (collectively for each such series of Notes, the
"SECURITY INTEREST" for such series of Notes and for all series
of Notes, the "SECURITY INTERESTS"), in each case effective as of
the Issue Date of the applicable Notes.
(b) It is expressly agreed that anything therein contained to the
contrary notwithstanding, the Issuer shall remain liable under
each Funding Agreement to perform all the obligations assumed by
it thereunder, all in accordance with and pursuant to the terms
and provisions thereof, and the Indenture Trustee shall not have
any obligations or liabilities by reason of or arising out of
this Indenture, nor shall the Indenture Trustee be required or
obligated in any manner to perform or fulfill any obligations of
the Issuer under or pursuant to such Funding Agreement or to make
any payment, to make any inquiry as to the nature or sufficiency
of any payment received by it, or, prior to the occurrence and
continuance of an Event of Default, to present or file any claim,
or to take any action to collect or enforce the payment of any
amounts that may have been assigned to it or to which it may be
entitled at any time or times.
(c) The Indenture Trustee acknowledges the grant of each Security
Interest upon the issuance of each series of Notes to which it
relates, accepts the trusts hereunder in accordance with the
provisions hereof and agrees to perform its duties herein to the
end that the interests of each Holder of the Notes of such series
and any other Person for whose benefit the Indenture Trustee is
holding the applicable series Collateral may be adequately and
effectively protected.
SECTION 14.2 REPRESENTATIONS AND WARRANTIES. The Issuer represents
and warrants (which representations and warranties shall be deemed to have been
repeated as of the date of any Note Certificate or indenture or indentures
supplemental hereto that establishes the terms of any series of Notes hereunder)
as follows:
(a) The Issuer owns or, prior to the issuance of the Notes of any
series it will own, each Funding Agreement that secures the
Obligations with respect to such series and all of the rest of
the Collateral, free and clear of any Liens other than the
Security Interest in such Collateral.
(b) The Issuer has not performed any acts which might prevent the
Indenture Trustee from enforcing any of the terms of this
Indenture or which would limit the Indenture Trustee in any such
enforcement. Other than financing statements or other similar or
equivalent documents or instruments with respect to each Security
Interest, no financing statement, mortgage, security agreement or
similar or equivalent document or instrument covering all or any
part of the Collateral is on file or of record in any
jurisdiction in which such filing or recording would be effective
to perfect a Lien on such Collateral. No Collateral is in the
possession of any Person
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(other than the Issuer or its agent) asserting any claim thereto
or security interest therein, except that the Indenture Trustee
or its designee may have possession of Collateral as contemplated
hereby.
(c) Each Security Interest constitutes a valid security interest
securing the Obligations. When (i) the financing statements shall
have been filed in the appropriate offices in Illinois, Delaware
and New York, (ii) the Indenture Trustee or its agent shall have
taken possession of each applicable Funding Agreement, (iii) the
Issuer shall have pledged and collaterally assigned each
applicable Funding Agreement to the Indenture Trustee and given
written notice to the Funding Agreement Provider of each such
assignment to the Indenture Trustee and (iv) the Funding
Agreement Provider shall have given its express written consent
to such pledge and collateral assignment and affirmed in writing
that the Funding Agreement Provider has changed its books and
records to reflect such pledge and collateral assignment to the
Indenture Trustee, such Security Interest shall constitute a
first priority perfected security interest in the Collateral,
enforceable against the Issuer, the Issuer's creditors and any
purchaser from the Issuer.
SECTION 14.3 FURTHER ASSURANCES; COVENANTS.
(a) The Issuer will not change its name, identity or organizational
structure in any manner unless it shall have given the Indenture
Trustee at least 30 days' prior notice thereof. The Issuer will
not change the location of its chief executive office or chief
place of business unless it shall have given the Indenture
Trustee at least 30 days' prior notice thereof.
(b) The Issuer will, from time to time and upon advice of counsel, at
the Issuer's expense, execute, deliver, file and record any
statement, assignment, instrument, document, agreement or other
paper and take any other action, (including, without limitation,
any filings of financing or continuation statements) that from
time to time may be necessary or desirable, or that the Indenture
Trustee may reasonably request, in order to create, preserve,
perfect, confirm or validate a Security Interest or to enable the
Holders of Notes to obtain the full benefits of this Indenture,
or to enable the Indenture Trustee to exercise and enforce any of
its rights, powers and remedies hereunder with respect to any
Collateral. To the extent permitted by applicable law, the Issuer
hereby authorizes the Indenture Trustee to execute and file
financing statements or continuation statements without the
Issuer's signature appearing thereon. The Issuer agrees that a
carbon, photographic, photostatic or other reproduction of this
Indenture or of a financing statement is sufficient as a
financing statement. The Issuer shall pay the costs of, or
incidental to, any recording or filing of any financing or
continuation statements concerning any Collateral.
78
(c) If any Collateral is at any time in the possession or control of
any warehouseman, bailee or any of the Issuer's agents or
processors, the Issuer shall notify such warehouseman, bailee,
agent or processor of the Security Interest created hereby and to
hold all such Collateral for the Indenture Trustee's account
subject to the Indenture Trustee's instructions.
(d) The Issuer will, promptly upon request, provide to the Indenture
Trustee all information and evidence it may reasonably request
concerning Collateral to enable the Indenture Trustee to enforce
the provisions of this Indenture.
(e) Not more than six months nor less than 30 days prior to each date
on which the Issuer proposes to take any action contemplated by
Section 14.3(a), the Issuer shall, at its cost and expense, cause
to be delivered to the Indenture Trustee an Opinion of Counsel,
satisfactory to the Indenture Trustee, to the effect that all
financing statements and amendments or supplements thereto,
continuation statements and other documents required to be
recorded or filed in order to perfect and protect the Security
Interest for a period, specified in such opinion, continuing
until a date not earlier than eighteen months from the date of
such opinion, against all creditors of and purchasers from the
Issuer have been filed in each filing office necessary for such
purpose and that all filing fees and taxes, if any, payable in
connection with such filings have been paid in full.
(f) From time to time upon request by the Indenture Trustee, the
Issuer shall, at its cost and expense, cause to be delivered to
the Indenture Trustee an Opinion of Counsel satisfactory to the
Indenture Trustee as to such matters relating to the Security
Interest as the Indenture Trustee or the Holder or Holders of not
less than a majority in aggregate principal amount of the Notes
then Outstanding may reasonably request.
SECTION 14.4 GENERAL AUTHORITY. The Issuer hereby irrevocably
appoints the Indenture Trustee its true and lawful attorney, with full power of
substitution, in the name of the Issuer, the Indenture Trustee, the Holders of
Notes or otherwise, for the sole use and benefit of the Holders of Notes, but at
the Issuer's expense, to the extent permitted by law to exercise, at any time
and from time to time while an Event of Default has occurred and is continuing,
all or any of the following powers with respect to all or any of the Collateral:
(a) to demand, xxx for, collect, receive and give acquittance for any
and all monies due or to become due thereon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any action
or proceeding with respect thereto,
(c) to sell, transfer, assign or otherwise deal in or with the same
or the proceeds or avails thereof, as fully and effectually as if
the Indenture Trustee were the absolute owner thereof, and
79
(d) to extend the time of payment of any or all thereof and to make
any allowance and other adjustments with reference thereto;
PROVIDED that the Indenture Trustee shall give the Issuer not less than 10 days'
prior notice of the time and place of any sale or other intended disposition of
any of the Collateral, except any part of the Collateral which threatens to
decline speedily in value or is of a type customarily sold on a recognized
market.
SECTION 14.5 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
has occurred and is continuing, the Indenture Trustee may exercise on behalf of
the Holders of the Notes all rights of a secured party under applicable law and,
in addition, the Indenture Trustee may, without being required to give any
notice, except as herein provided or as may be required by mandatory provisions
of law, (i) apply all cash, if any, then held by it as all or part of the
Collateral as specified in Section 5.3 and (ii) if there shall be no such cash
or if such cash shall be insufficient to pay all the Obligations in full, sell
the Collateral (including each applicable Funding Agreement) or any part thereof
at public or private sale, for cash, upon credit or for future delivery, and at
such price or prices as the Indenture Trustee may deem satisfactory. Any Holder
may be the purchaser of any or all of the Collateral so sold at any public sale
(or, if the Collateral is of a type customarily sold in a recognized market or
is of a type which is the subject of widely distributed standard price
quotations, at any private sale). The Issuer will execute and deliver such
documents and take such other action as the Indenture Trustee deems necessary or
advisable in order that any such sale may be made in compliance with law. Upon
any such sale the Indenture Trustee shall have the right to deliver, assign and
transfer to the purchaser thereof the Collateral so sold. Each purchaser at any
such sale shall hold the Collateral so sold to it absolutely and free from any
claim or right of whatsoever kind, including any equity or right of redemption
of the Issuer which may be waived, and the Issuer, to the extent permitted by
law, hereby specifically waives all rights of redemption, stay or appraisal
which it has or may have under any law now existing or hereafter adopted. The
notice (if any) of such sale shall (A) in the case of a public sale, state the
time and place fixed for such sale, and (B) in the case of a private sale, state
the day after which such sale may be consummated. Any such public sale shall be
held at such time or times within ordinary business hours and at such place or
places as the Indenture Trustee may fix in the notice of such sale. At any such
sale the Collateral may be sold in one lot as an entirety or in separate
parcels, as the Indenture Trustee may determine. The Indenture Trustee shall not
be obligated to make any such sale pursuant to any such notice. The Indenture
Trustee may, without notice or publication, adjourn any public or private sale
or cause the same to be adjourned from time to time by announcement at the time
and place fixed for the sale, and such sale may be made at any time or place to
which the same may be so adjourned. In the case of any sale of all or any part
of the Collateral on credit or for future delivery, the Collateral so sold may
be retained by the Indenture Trustee until the selling price is paid by the
purchaser thereof, but the Indenture Trustee shall not incur any liability in
the case of the failure of such purchaser to take up and pay for the Collateral
so sold and, in the case of any such failure, such Collateral may again be sold
upon like notice. The Indenture Trustee, instead of exercising the power of sale
herein conferred upon it, may proceed by a suit or suits at law or in equity to
foreclose a Security Interest and sell any Collateral, or any portion thereof,
under a judgment or decree of a court or courts of competent jurisdiction.
00
XXXXXXX 00.0 XXXXXXXXXX XX DUTIES OF INDENTURE TRUSTEE WITH RESPECT
TO COLLATERAL. Beyond the exercise of reasonable care in the custody thereof,
the Indenture Trustee shall have no duty as to any portion of the Collateral in
its possession or control or in the possession or control of any agent or bailee
or as to the preservation of rights against prior parties or any other rights
pertaining thereto. The Indenture Trustee shall be deemed to have exercised
reasonable care in the custody of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which it accords
its own property, and shall not be liable or responsible for any loss or damage
to any of the Collateral, or for any diminution in the value thereof, by reason
of the act or omission of any warehouseman, carrier, forwarding agency,
consignee or other agent or bailee selected by the Indenture Trustee in good
faith.
SECTION 14.7 CONCERNING THE INDENTURE TRUSTEE. In furtherance and not
in derogation of the rights, privileges and immunities of the Indenture Trustee
herein specified:
(a) The Indenture Trustee is authorized to take all such action as is
provided to be taken by it as Indenture Trustee under this
Article and all other action reasonably incidental thereto. As to
any matters not expressly provided for herein (including, without
limitation, the timing and methods of realization upon any
Collateral) the Indenture Trustee shall act or refrain from
acting in accordance with written instructions from the Holder or
Holders of the required percentage of aggregate principal amount
of Notes for any instructions or, in the absence of such
instructions, in accordance with its discretion.
(b) The Indenture Trustee shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Security
Interest in any of the Collateral, whether impaired by operation
of law or by reason of any action or omission to act on its part
hereunder.
SECTION 14.8 TERMINATION OF SECURITY INTEREST. Upon the repayment in
full of all Obligations relating to a series of Notes, the Security Interest
shall terminate and all rights to the Collateral relating to such series shall
revert to the Issuer. Upon any such termination of a Security Interest, and
delivery of a certificate by the Issuer to such effect, the Indenture Trustee
will, at the expense of the Issuer, execute and deliver to the Issuer such
documents as the Issuer shall reasonably request to evidence the termination of
the Security Interest.
81
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first above written.
ALLSTATE LIFE GLOBAL FUNDING, acting
hereunder with respect to each series of
the Trust
By: Wilmington Trust Company,
not in its individual capacity
but solely as Delaware Trustee
By:
-------------------------------------
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION
By:
-------------------------------------
Name:
Title:
82
EXHIBIT A-1
FORM OF GLOBAL SECURITY
[FACE OF NOTE].
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or such other entity as is requested by an authorized representative
of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
this note is a global security within the meaning of the indenture
hereinafter referred to and is registered in the name of a depositary or a
nominee thereof. this security may not be exchanged in whole or in part for a
security registered, and no transfer of this security in whole or in part may be
registered, in the name of any person other than such depositary or a nominee
thereof, except in the limited circumstances described in the indenture.
REGISTERED NO. _______________________________ CUSIP NO.___________________
Principal Amount: $______________________________
(or principal amount of foreign or composite currency)
Interest Rate: _______________________________
Issue Date: _______________________________
Maturity Date: _______________________________
Interest Payment Date(s):________________________
Redemption Provisions:___________________________
Repayment Provisions:____________________________
Survivor's Option:_______________________________
A-1-1
ALLSTATE LIFE GLOBAL FUNDING
For value received,
ALLSTATE LIFE GLOBAL FUNDING, a statutory trust
organized in series under the laws of the State of Delaware (hereinafter called
the "Trust"), hereby promises to pay to Cede & Co., or registered assigns, at
the Corporate Trust Office of the Indenture Trustee or such other office as may
be designated pursuant to the Indenture, the principal amount stated above on
the Maturity Date stated above, in such coin or currency stated above, to pay
interest thereon at the Interest Rate per annum stated above (on the basis of a
360 day year of twelve 30 day months), in like coin or currency, on the Interest
Payment Date(s) set forth above and on the Maturity Date (or on the date of
redemption or repayment by the Trust prior to maturity pursuant to mandatory or
optional redemption provisions, in each case if provided for above, in any Note
Certificate or in a Supplemental Indenture) and to pay such other amounts due
and owing with respect to this Note. The interest so payable on any Interest
Payment Date will, subject to certain exceptions provided in the Indenture
referred to below, be paid to the person in whose name this Note is registered
(i) if such Interest Payment Date occurs on the 15th day of a month, at the
close of business on the first day (whether or not a Business Day) of the
calendar month in which such Interest Payment Date occurs, (ii) if such Interest
Payment Date occurs on the first day of a month, at the close of business on the
15th day (whether or not a Business Day) of the calendar month preceding the
month in which such Interest Payment Date occurs, or (iii) if such Interest
Payment Date occurs on any day other than the first or 15th day of the month, at
the close of business on the 15th day (whether or not a Business Day) preceding
such Interest Payment Date; provided that, notwithstanding the foregoing clauses
(i), (ii) and (iii), the Regular Interest Record Date with respect to the final
Interest Payment Date will be the final Interest Payment Date. Unless otherwise
provided for in the Indenture, at the option of the Trust, any interest,
Additional Amounts or other amounts due and owing with respect to this Note may
be paid by check to the registered Holder hereof entitled thereto at his last
address as it appears on the registry books, and principal may be paid by check
to the registered Holder hereof or other person entitled thereto against
surrender of this Note.
Each payment of interest on a Note shall include accrued interest from
and including the Issue Date or from and including the last day in respect of
which interest has been paid (or duly provided for), as the case may be, to, but
excluding, the Interest Payment Date or the day to which the principal hereof
has been paid (or duly provided for), as the case may be.
Additional Amounts shall be payable if so provided in this Note or any
Supplemental Indenture applicable to this Note.
This Global Security is one of a duly authorized issue of Notes of the
Trust all issued or to be issued under and pursuant to an indenture dated as of
- (the "Indenture") duly executed by the Trust and Bank One, National
Association (together with any successor thereto, called the "Indenture
Trustee"), to which Indenture and all Supplemental Indentures thereto, reference
is hereby made for a description of the rights, duties and immunities thereunder
of the Indenture Trustee and the rights thereunder of the Holders of the Notes.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become,
A-1-2
due and payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Trust and the
Indenture Trustee, without the consent of any Holder, to execute Supplemental
Indentures for limited purposes.
The Indenture also contains provisions permitting the Trust and the
Indenture Trustee, with the consent of the Holders of not less than 662/3% in
aggregate principal amount of all affected series of Notes at the time
Outstanding, evidenced as in the Indenture provided, to execute Supplemental
Indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or any Supplemental Indenture or modifying in
any manner the rights of the Holders of the Notes; provided, that no such
Supplemental Indenture shall (i) extend the final maturity of any Note, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest or any other amount payable thereon, without the consent of
the Holder of each Note so affected, (ii) permit the creation of any Lien on the
Collateral or any part thereof (other than a Security Interest in favor of the
Indenture Trustee on behalf of the Holders) or terminate the Security Interest
as to any part of the Collateral, except as permitted by the Indenture, or (iii)
reduce the aforesaid percentage of Notes, the consent of the Holders of which is
required for any Supplemental Indenture, without the consent of the Holder of
each Outstanding Note so affected.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Trust, which is
absolute and unconditional, to pay the principal of, interest on, or any other
amount due and owing with respect to, this Note at the places, at the respective
times, at the rate, and in the coin or currency, herein prescribed.
Upon due presentment for registration of transfer of this Global
Security at the Corporate Trust Office of the Indenture Trustee located in the
Borough of Manhattan, the City of New York, a new Global Security for an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection therewith.
The Trust and the Indenture Trustee may deem and treat the registered
Holder hereof as the absolute owner hereof (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing thereon),
for the purpose of receiving payment of or on account of the principal of, any
premium on, and (subject to Section 8.4 of the Indenture) interest on, and any
Additional Amounts with respect to, this Note and for all other purposes, and
neither the Trust nor the Indenture Trustee shall be affected by any notice to
the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Trust in the Indenture or any Supplemental Indenture thereto or in any Note, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, or against any past, present or future stockholder, officer or
director, as such, of the Trust or of any successor corporation, either directly
or through the Trust or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such personal liability
of every incorporator,
A-1-3
stockholder, officer and director, as such, being expressly waived and released
by the acceptance hereof and as a condition of and as part of the consideration
for the issuance of this Note.
Under certain circumstances described in the Indenture, the Trust will
issue Notes represented by Definitive Securities in exchange for the Global
Securities. In such event, an owner of a beneficial interest in the Global
Securities will be entitled to have Notes equal in aggregate principal amount to
such beneficial interests registered in its name and will be entitled to
physical delivery of such Notes represented by Definitive Securities. Notes so
issued as Definitive Securities will be issued as registered Notes without
coupons in denominations of at least $1,000 or any amount in excess thereof that
is an integral multiple of $1,000.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York, except as required by mandatory provisions of law
and except to the extent that the validity or perfection of the Trust's
ownership of and security interest in the Funding Agreements or remedies under
the Indenture in respect thereof may be governed by the laws of a jurisdiction
other than the State of New York. All judicial proceedings brought against the
Trust or the Indenture Trustee arising out of or relating to the Indenture, this
Note or any portion of the Collateral or other assets of the Trust may be
brought in any state or federal court in the State of New York.
Capitalized terms used herein without definition and which are defined
in the Indenture shall have the respective meanings assigned thereto in the
Indenture.
This Note shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by the
Indenture Trustee under the Indenture.
A-1-4
WITNESS THE SEAL OF THE TRUST AND THE SIGNATURE OF ITS DULY AUTHORIZED
OFFICER.
ALLSTATE LIFE GLOBAL FUNDING
Date: By:
--------------------- ---------------------------------
Title
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE NOTES DESCRIBED IN THE WITHIN-MENTIONED INDENTURE.
------------------------------------
AS TRUSTEE
By:
---------------------------------
Authorized Officer
A-1-5
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
________________________________.
Please print or typewrite name and address including postal zip code of
assignee:
________________________________________________________________________________
________________________________________________________________________________
the within Note of
ALLSTATE LIFE GLOBAL FUNDING and hereby does irrevocably
constitute and appoint ___________________________ Attorney to transfer the said
Note on the books of the within-mentioned Trust, with full power of substitution
in the premises.
Dated:_____________________
SIGN HERE _________________ NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THIS GLOBAL NOTE IN EVERY
PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER.
X-0-0
XXXXXXX X-0
FORM OF DEFINITIVE SECURITY
[FACE OF NOTE].
ALLSTATE LIFE GLOBAL FUNDING
SENIOR SECURED MEDIUM TERM NOTE
NO. _____________________________ CUSIP NO. __________________
Principal Amount: $_____________________
(or principal amount of foreign or composite currency)
Interest Rate: ______________________
Issue Date: ______________________
Maturity Date: ______________________
Interest Payment Date(s):___________________
Redemption Provisions:______________________
Repayment Provisions:_______________________
Survivor's Option: _________________________
A-2-1
For value received,
ALLSTATE LIFE GLOBAL FUNDING, a statutory trust
organized in series under the laws of the State of Delaware (hereinafter called
the "Trust"), hereby promises to pay to [________________________], or
registered assigns, at the Corporate Trust Office of the Indenture Trustee or
such other office as may be designated pursuant to the Indenture, the principal
amount stated above on the Maturity Date stated above, in such coin or currency
stated above, to pay interest thereon at the Interest Rate per annum stated
above (on the basis of a 360 day year of twelve 30 day months), in like coin or
currency, on the Interest Payment Date(s) set forth above and on the Maturity
Date (or on the date of redemption or repayment by the Trust prior to maturity
pursuant to mandatory or optional redemption provisions, in each case if
provided for above, in any Note Certificate or in a Supplemental Indenture) and
to pay such other amounts due and owing with respect to this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which provisions shall have the same effect as if
set forth hereon.
IN WITNESS WHEREOF, the Trust has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
Date: ALLSTATE LIFE GLOBAL FUNDING
By:
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned
Indenture.
BANK ONE, NATIONAL ASSOCIATION, as
Indenture Trustee
By:
---------------------------------
Name:
Title:
A-2-2
[REVERSE SIDE OF NOTE]
ALLSTATE LIFE GLOBAL FUNDING
SENIOR SECURED MEDIUM TERM NOTE
The interest so payable on any Interest Payment Date will, subject to
certain exceptions provided in the Indenture referred to below, be paid to the
person in whose name this Note is registered (i) if such Interest Payment Date
occurs on the 15th day of a month, at the close of business on the first day
(whether or not a Business Day) of the calendar month in which such Interest
Payment Date occurs, (ii) if such Interest Payment Date occurs on the first day
of a month, at the close of business on the 15th day (whether or not a Business
Day) of the calendar month preceding the month in which such Interest Payment
Date occurs, or (iii) if such Interest Payment Date occurs on any day other than
the first or 15th day of the month, at the close of business on the 15th day
(whether or not a Business Day) preceding such Interest Payment Date; provided
that, notwithstanding the foregoing clauses (i), (ii) and (iii), the Regular
Interest Record Date with respect to the final Interest Payment Date will be the
final Interest Payment Date. Unless otherwise provided for in the Indenture, at
the option of the Trust, any interest, Additional Amounts or other amounts due
and owing with respect to this Note may be paid by check to the registered
Holder hereof entitled thereto at his last address as it appears on the registry
books, and principal may be paid by check to the registered Holder hereof or
other person entitled thereto against surrender of this Note.
Each payment of interest on a Note shall include accrued interest from
and including the Issue Date or from and including the last day in respect of
which interest has been paid (or duly provided for), as the case may be, to, but
excluding, the Interest Payment Date or the day to which the principal hereof
has been paid (or duly provided for), as the case may be.
Additional Amounts shall be payable if so provided in this Note or any
Supplemental Indenture applicable to this Note.
This Definitive Security is one of a duly authorized issue of Notes of
the Trust all issued or to be issued under and pursuant to an indenture dated as
of - (the "Indenture") duly executed by the Trust and Bank One, National
Association (together with any successor thereto, called the "Indenture
Trustee"), to which Indenture and all Supplemental Indentures thereto, reference
is hereby made for a description of the rights, duties and immunities thereunder
of the Indenture Trustee and the rights thereunder of the Holders of the Notes.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Trust and the
Indenture Trustee, without the consent of any Holder, to execute Supplemental
Indentures for limited purposes.
A-2-3
The Indenture also contains provisions permitting the Trust and the
Indenture Trustee, with the consent of the Holders of not less than 662/3% in
aggregate principal amount of all affected series of Notes at the time
Outstanding, evidenced as in the Indenture provided, to execute Supplemental
Indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or any Supplemental Indenture or modifying in
any manner the rights of the Holders of the Notes; provided, that no such
Supplemental Indenture shall (i) extend the final maturity of any Note, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest or any other amount payable thereon, without the consent of
the Holder of each Note so affected, (ii) permit the creation of any Lien on the
Collateral or any part thereof (other than a Security Interest in favor of the
Indenture Trustee on behalf of the Holders) or terminate the Security Interest
as to any part of the Collateral, except as permitted by the Indenture, or (iii)
reduce the aforesaid percentage of Notes, the consent of the Holders of which is
required for any Supplemental Indenture, without the consent of the Holder of
each Outstanding Note so affected.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Trust, which is
absolute and unconditional, to pay the principal of, interest on, or any other
amount due and owing with respect to, this Note at the places, at the respective
times, at the rate, and in the coin or currency, herein prescribed.
Upon due presentment for registration of transfer of this Definitive
Security at the Corporate Trust Office of the Indenture Trustee located in the
Borough of Manhattan, the City of New York, a new Definitive Security for an
equal aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection therewith.
The Trust and the Indenture Trustee may deem and treat the registered
Holder hereof as the absolute owner hereof (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing thereon),
for the purpose of receiving payment of or on account of the principal of, any
premium on, and (subject to Section 8.4 of the Indenture) interest on, and any
Additional Amounts with respect to, this Note and for all other purposes, and
neither the Trust nor the Indenture Trustee shall be affected by any notice to
the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Trust in the Indenture or any Supplemental Indenture thereto or in any Note, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, or against any past, present or future stockholder, officer or
director, as such, of the Trust or of any successor corporation, either directly
or through the Trust or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such personal liability
of every incorporator, stockholder, officer and director, as such, being
expressly waived and released by the acceptance hereof and as a condition of and
as part of the consideration for the issuance of this Note.
Under certain circumstances described in the Indenture, the Trust will
issue Notes represented by Global Securities in exchange for the Definitive
Securities. In such event, an owner of a beneficial interest in the Definitive
Securities will be entitled to have Notes equal in
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aggregate principal amount to such beneficial interests registered in its name
and will be entitled to physical delivery of such Notes represented by
Definitive Securities. Notes so issued as Definitive Securities will be issued
as registered Notes without coupons in denominations of at least $1,000 or any
amount in excess thereof that is an integral multiple of $1,000.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York, except as required by mandatory provisions of law
and except to the extent that the validity or perfection of the Trust's
ownership of and security interest in the Funding Agreements or remedies under
the Indenture in respect thereof may be governed by the laws of a jurisdiction
other than the State of New York. All judicial proceedings brought against the
Trust or the Indenture Trustee arising out of or relating to the Indenture, this
Note or any portion of the Collateral or other assets of the Trust may be
brought in any state or federal court in the State of New York.
Capitalized terms used herein without definition and which are defined
in the Indenture shall have the respective meanings assigned thereto in the
Indenture.
This Note shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by the
Indenture Trustee under the Indenture.
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ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
_______________________________.
Please print or typewrite name and address including postal zip code of
assignee:
________________________________________________________________________________
________________________________________________________________________________
the within Note of ALLSTATE LIFE GLOBAL FUNDING and hereby does irrevocably
constitute and appoint ______________________ Attorney to transfer the said Note
on the books of the within-mentioned Trust, with full power of substitution in
the premises.
Dated:_____________________
SIGN HERE NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME
AS WRITTEN UPON THE FACE OF THIS NOTE IN EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER.
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EXHIBIT B
FORM OF CERTIFICATE OF AUTHENTICATION
This Note Certificate is one of the Note Certificates representing Notes
described in the within-mentioned Indenture and is being issued in accordance
with Section 2.5(f) of the Indenture.
BANK ONE, NATIONAL ASSOCIATION,
As Indenture Trustee
By:
----------------------------
Authorized Signatory
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