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THE SERVICEMASTER COMPANY
LIMITED PARTNERSHIP
as the Company,
and
SERVICEMASTER LIMITED PARTNERSHIP
as the Guarantor,
and
XXXXXX TRUST AND SAVINGS BANK
as Trustee
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Indenture
Dated as of July __, 1997
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TABLE OF CONTENTS*
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RECITALS OF THE COMPANY
ARTICLE 1
Definitions and Incorporation By Reference
Section 1.01. Definitions................................................ 1
Section 1.02. Other Definitions.......................................... 9
Section 1.03. Incorporation by Reference of Trust
Indenture Act.............................................. 9
Section 1.04. Rules of Construction...................................... 10
ARTICLE 2
The Securities
Section 2.01. Form and Dating............................................ 11
Section 2.02. Execution and Authentication............................... 11
Section 2.03. Amount Unlimited; Issuable in Series....................... 13
Section 2.04. Denomination and Date of Securities; Payments of Interest.. 16
Section 2.05. Registrar and Paying Agent; Agents Generally............... 17
Section 2.06. Paying Agent to Hold Money in Trust........................ 18
Section 2.07. Transfer and Exchange...................................... 18
Section 2.08. Replacement Securities..................................... 22
Section 2.09. Outstanding Securities..................................... 22
Section 2.10. Temporary Securities....................................... 23
Section 2.11. Cancellation............................................... 23
Section 2.12. CUSIP Numbers.............................................. 24
Section 2.13. Defaulted Interest......................................... 24
Section 2.14. Series May Include Tranches................................ 24
ARTICLE 3
Redemption
Section 3.01. Applicability of Article................................... 25
Section 3.02. Notice of Redemption; Partial Redemptions.................. 25
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/1/Note: The Table of Contents shall not for any purposes be deemed to be a
part of the Indenture.
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Section 3.03. Payment of Securities Called for Redemption................ 27
Section 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption.................................. 28
Section 3.05. Mandatory and Optional Sinking Funds....................... 28
ARTICLE 4
Guarantee of Debt Securities
Section 4.01. Unconditional Guarantee.................................... 31
Section 4.02. Execution of Guarantees.................................... 32
ARTICLE 5
Covenants
Section 5.01. Payment of Securities...................................... 33
Section 5.02. Maintenance of Office or Agency............................ 34
Section 5.03. Negative Pledge............................................ 35
Section 5.04. Certain Sale and Lease-back Transactions................... 37
Section 5.05. Certificate to Trustee..................................... 38
Section 5.06. Reports by the Company..................................... 39
Section 5.07. Guarantor to Maintain Office or Agency..................... 39
Section 5.08. Guarantor's Certificate to Trustee......................... 39
Section 5.09. Reports by the Guarantor................................... 39
ARTICLE 6
Successor Corporation
Section 6.01. When Company May Merge, Etc................................ 40
Section 6.02. Successor Substituted...................................... 40
Section 6.03. When Guarantor May Merge, Etc.............................. 41
Section 6.04. Successor to the Guarantor................................. 41
ARTICLE 7
Default and Remedies
Section 7.01. Events of Default.......................................... 41
Section 7.02. Acceleration............................................... 43
Section 7.03. Other Remedies............................................. 44
Section 7.04. Waiver of Past Defaults.................................... 45
Section 7.05. Control by Majority........................................ 45
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Section 7.06. Limitations on Suits....................................... 45
Section 7.07. Rights of Holders to Receive Payment....................... 46
Section 7.08. Collection Suit by Trustee................................. 46
Section 7.09. Trustee May File Proofs of Claim........................... 47
Section 7.10. Application of Proceeds.................................... 47
Section 7.11. Restoration of Rights and Remedies......................... 48
Section 7.12. Undertaking for Costs...................................... 48
Section 7.13. Rights and Remedies Cumulative............................. 49
Section 7.14. Delay or Omission Not Waiver............................... 49
ARTICLE 8
Trustee
Section 8.01. General.................................................... 49
Section 8.02. Certain Rights of Trustee.................................. 50
Section 8.03. Individual Rights of Trustee............................... 52
Section 8.04. Trustee's Disclaimer....................................... 53
Section 8.05. Notice of Default.......................................... 53
Section 8.06. Reports by Trustee to Holders.............................. 53
Section 8.07. Compensation and Indemnity................................. 53
Section 8.08. Replacement of Trustee..................................... 54
Section 8.09. Successor Trustee by Merger, Etc........................... 56
Section 8.10. Eligibility................................................ 56
Section 8.11. Money Held in Trust........................................ 56
ARTICLE 9
Discharge of Indenture
Section 9.01. Defeasance Within One Year of Payment...................... 56
Section 9.02. Defeasance................................................. 57
Section 9.03. Covenant Defeasance........................................ 59
Section 9.04. Application of Trust Money................................. 60
Section 9.05. Repayment to Company....................................... 60
ARTICLE 10
Amendments, Supplements and Waivers
Section 10.01. Without Consent of Holders................................. 61
Section 10.02. With Consent of Holders.................................... 61
Section 10.03. Revocation and Effect of Consent........................... 63
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Section 10.04. Notation on or Exchange of Securities...................... 64
Section 10.05. Trustee to Sign Amendments, Etc............................ 64
Section 10.06. Conformity with Trust Indenture............................ 64
ARTICLE 11
Miscellaneous
Section 11.01. Trust Indenture Act of 1939................................ 64
Section 11.02. Notices.................................................... 64
Section 11.03. Certificate and Opinion as to Conditions Precedent......... 66
Section 11.04. Statements Required in Certificate or Opinion.............. 66
Section 11.05. Evidence of Ownership...................................... 67
Section 11.06. Rules by Trustee, Paying Agent or Registrar................ 68
Section 11.07. Payment Date Other than a Business Day..................... 68
Section 11.08. Governing Law.............................................. 68
Section 11.09. No Adverse Interpretation of Other Agreements.............. 68
Section 11.10. Successors................................................. 68
Section 11.11. Duplicate Originals........................................ 68
Section 11.12. Severability............................................... 68
Section 11.13. Table of Contents, Headings, Etc........................... 68
Section 11.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability
Section 11.15. Judgment Currency.......................................... 69
SIGNATURES
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INDENTURE, dated as of July __, 1997, among The ServiceMaster Company
Limited Partnership, a Delaware limited partnership, as the Company,
ServiceMaster Limited Partnership, a Delaware limited partnership, as the
Guarantor, and Xxxxxx Trust and Savings Bank, an Illinois banking corporation,
as Trustee.
RECITALS
WHEREAS, the Company has duly authorized the issuance from time to time of
its debentures, notes or other evidences of indebtedness to be issued in one or
more series (the "Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration thereof, the Company has duly authorized the execution and
delivery of this Indenture;
WHEREAS, the Guarantor desires to make the Guarantees (as defined herein)
as provided herein and has duly authorized the execution and delivery 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 Securities by the
holders thereof, the Company, the Guarantor and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of any and all series thereof and of the
coupons, if any, appertaining thereto as follows:
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions.
"Agent" means any Registrar, Paying Agent, transfer agent or Authenticating
Agent.
"Attributable Debt" means, when used in connection with a sale and lease-
back transaction referred to in Section 5.04, on any date as of which the amount
thereof is to be determined, the product of (a) the net cash proceeds from such
sale and lease-back transaction multiplied by (b) a fraction, the numerator of
which is the number of full years of the term of the lease relating to the
property involved in such sale and lease-back transaction (without regard to any
options to renew or extend such term) remaining on the date of the making of
such computation and the denominator of which is the number of full years of the
term of such lease measured from the first day of such term.
"Authorized Newspaper" means a newspaper (which, in the case of The City of
New York, will, if practicable, be The Wall Street Journal (Eastern Edition) and
in the case of London, will, if practicable, be the Financial Times (London
Edition) and published in an official language of the country of publication
customarily published at least once a day for at least five days in each
calendar week and of general circulation in The City of New York or London, as
applicable. If it shall be impractical in the opinion of the Trustee to make any
publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
"Board of Directors" means either the Board of Directors of the Company or
the Guarantor, as the case may be (or if the Company or the Guarantor, as the
case may be, is organized as a partnership, the Board of Directors of the
corporate general partner), or any committee of either such Board duly
authorized to act hereunder.
"Board Resolution" means one or more resolutions of the board of directors
of the Company or the Guarantor, or any authorized committee thereof, certified
by the secretary or an assistant secretary to have been duly adopted and to be
in full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in The City of New York or Chicago,
with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in London, or
with respect to Securities denominated in a specified currency other than United
States dollars, in the principal financial center of the country of the
specified currency.
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"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 6 of this Indenture
and thereafter means the successor.
"Consolidated Net Worth" means, at any date of determination, the
consolidated stockholders' equity of the Guarantor, as set forth on the then
most recently available consolidated balance sheet of the Guarantor and its
consolidated Subsidiaries.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at Xxxxxx Trust & Savings Bank, Attention Indenture Trust, 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
"Default" means any Event of Default as defined in Section 7.01 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Registered Global Securities, the Person
designated as Depositary by the Company pursuant to Section 2.03 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
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than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Equity Interests" means (i) in the case of a corporation, capital stock,
(ii) in the case of a partnership, partnership interests (whether general or
limited) and (iii) in the case of an association or business entity other than a
corporation or a partnership, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock or
partnership interests or other interest or participation that confers on the
holder thereof the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" means all indebtedness for money borrowed, including purchase
money indebtedness and indebtedness pursuant to a mandatory sinking fund or
prepayment provision or otherwise, having a maturity of more than one year from
the date of its creation or having a maturity of less than one year but by its
terms being renewable or extendible, at the option of the obligor in respect
thereof, beyond one year from the date of its creation.
"GAAP" means generally accepted accounting principles in the United States
of America at the date of any computation required or permitted hereunder.
"Guarantees" means the guarantees of the Guarantor endorsed or to be
endorsed on the Securities authenticated and delivered hereunder; and "related
Guarantee" means, with respect to any Security, the Guarantee endorsed or to be
endorsed on such Security.
"Guarantor" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 6 of this Indenture
and thereafter means the successor.
"Holder" or "Securityholder" means the registered holder of any Security
with respect to Registered Securities and the bearer of any Unregistered
Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this
Indenture and shall include the forms and terms of the Securities of each series
established as contemplated pursuant to Sections 2.01 and 2.03.
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"Lien" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind. For the purposes
of this Indenture, the Company, the Guarantor or any Subsidiary shall be deemed
to own subject to a Lien any property or 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.
"Non-U.S. Subsidiary" means any Subsidiary that is not a corporation,
partnership or other entity created or organized in or under the laws of the
United States of America or any state thereof.
"Officer" means, with respect to the Company or the Guarantor, the chairman
of the board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name of the
Company or the Guarantor (i) by the chairman of the board of directors, the
president or chief executive officer or a vice president and (ii) by the chief
financial officer, the treasurer or any assistant treasurer, or the secretary or
any assistant secretary, complying with Section 11.04 and delivered to the
Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act and include (except as otherwise expressly provided in this
Indenture) the statements provided in Section 11.04.
"Opinion of Counsel" means a written opinion signed by legal counsel, who
may be an employee of or counsel to the Company or the Guarantor, satisfactory
to the Trustee and complying with Section 11.04. Each such opinion shall comply
with Section 314 of the Trust Indenture Act and include the statements provided
in Section 11.04, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 7.02.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the
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rate or rates of interest, if any, thereon, the stated maturity or maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"Permitted Receivables Financing" means a transaction or series of
transactions (including amendments, supplements, extensions, renewals,
replacements, refinancings or modifications thereof) pursuant to which a
Securitization Subsidiary purchases Receivables and Related Assets from the
Company or any Subsidiary and finances such Receivables and Related Assets
through the issuance of Equity Interests or indebtedness (either directly or
through a trust) or through the sale of the Receivables and Related Assets or a
fractional undivided interest in the Receivables and Related Assets; provided
that (i) the Board of Directors of the Company or the Guarantor, as the case may
be, shall have determined in good faith that such Permitted Receivables
Financing is economically fair and reasonable to the Company, (ii) all sales of
Receivables and Related Assets to the Securitization Subsidiary shall be made at
fair market value (as determined in good faith by the Board of Directors of the
Company or the Guarantor), (iii) the financing terms, covenants, termination
events and other provisions thereof shall be market terms (as determined in good
faith by the Board of Directors of the Company or the Guarantor), (iv) no
portion of the indebtedness of a Securitization Subsidiary will be guaranteed by
or will be recourse to the Company, the Guarantor or any Significant Subsidiary
(other than recourse for customary representations, warranties, covenants and
indemnities, none of which shall relate to the collectibility (as opposed to the
status) of the Receivables and Related Assets) and (v) neither the Company, the
Guarantor nor any Subsidiary shall have any obligation to maintain or preserve
the Securitization Subsidiary's financial condition.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference stock, whether
now outstanding or issued after the date of the Indenture, including, without
limitation, all series and classes of such preferred or preference stock.
"Principal" of a Security means the principal amount of, and, unless the
context indicates otherwise, includes any premium payable on, the Security.
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"Principal Property" means the Company's principal office building and any
manufacturing plant or principal research facility of any of the Company, the
Guarantor or any Significant Subsidiary which is located within the United
States of America, except any such principal office building, plant or facility
which the Board of Directors by resolution declares is not of material
importance to the total business conducted by the Company, the Guarantor and
their respective Subsidiaries as an entirety.
"Prospectus" means the Prospectus dated July __, 1997 issued by the Company
in connection with its issuance, from time to time, of Securities under this
Indenture.
"Receivables and Related Assets" means accounts receivable and instruments,
chattel paper, obligations, general intangibles and other similar assets, in
each case, relating to such receivables, including interest in merchandise or
goods, the sale or lease of which gave rise to such receivables, related
contractual rights, guarantees, insurance proceeds, collections, other related
assets, and proceeds of all of the foregoing.
"Registered Global Security" means a Security evidencing all or a part of a
series of Registered Securities, issued to the Depositary for such series in
accordance with Section 2.02, and bearing the legend prescribed in Section 2.02.
"Registered Security" means any Security registered on the Security
Register (as defined in Section 2.05).
"Responsible Officer" means, when used with respect to the Trustee, any
senior trust officer, any vice president, any trust officer, any assistant trust
officer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" means any of the securities, as defined in the first paragraph
of the recitals hereof, that are authenticated and delivered under this
Indenture and, unless the context indicates otherwise, shall include any coupon
appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
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"Securitization Subsidiary" means a Wholly Owned Subsidiary which is
established for the limited purpose of acquiring and financing Receivables and
Related Assets and engaging in activities ancillary thereto.
"Significant Subsidiary" means, at any time, any Subsidiary that would be a
Significant Subsidiary at such time, as such term is defined in Regulation S-X
promulgated by the Commission, as in effect on the date of the Indenture.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock (in the case of a corporation) or other ownership interest is
owned, directly or indirectly, by such Person and one or more other Subsidiaries
of such Person.
"Total Assets" means, at any date of determination, the total assets of the
Guarantor and its Subsidiaries on a consolidated basis as set forth on the then
most recently available consolidated balance sheet of the Guarantor and its
consolidated Subsidiaries prepared in accordance with GAAP.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article 8 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended (15
U.S. Code (S)(S) 77aaa-77bbbb), as it may be amended from time to time. "UCC"
means the Uniform Commercial Code, as in effect in each applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended and as codified in Title 11 of the United States Code, as amended from
time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall also
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include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any class
or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly Owned Subsidiary" means a Subsidiary all of the Equity Interests of
which (except directors' qualifying shares) is at the time owned directly or
indirectly by the Company.
"Yield to Maturity" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series are
issuable from time to time, on a Security of such series, calculated at the time
of issuance of such series in the case of clause (i) or at the time of issuance
of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent redetermination of interest on such series or on such
Security, and calculated in accordance with the constant interest method or such
other accepted financial practice as is specified in the terms of such Security.
Section 1.02. Other Definitions. Each of the following terms is defined
in the section set forth opposite such term:
Term Section
Authenticating Agent 2.02
cash transaction 8.03
Dollars 5.02
Event of Default 7.01
Judgment Currency 11.15
mandatory sinking fund payment 3.05
optional sinking fund payment 3.05
Paying Agent 2.05
record date 2.04
Registrar 2.05
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Term Section
Required Currency 11.15
Security Register 2.05
self-liquidating paper 8.03
sinking fund payment date 3.05
tranche 2.14
Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporated by reference in and made a part of this Indenture. The following
terms used in this Indenture that are defined by the Trust Indenture Act have
the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or
any other obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein.
Section 1.04. Rules of Construction. Unless the context otherwise
requires:
(i) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in the plural
include the singular;
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(iii) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(iv) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not be
deemed a limitation, and the use of any such pronouns should be construed
to include, where appropriate, the other pronouns.
ARTICLE 2
The Securities
Section 2.01. Form and Dating. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law, or with
any rules of any securities exchange or usage, all as may be determined by the
officers executing such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered Securities shall have
coupons attached.
The Guarantees to be endorsed on the Securities of each series shall be in
substantially the form set forth in Section 4.01, or as shall be established by
or pursuant to one or more Board Resolutions of the Guarantor or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or with
any rules of any securities exchange or to conform to general usage or as may,
consistently herewith, be determined by the officers executing such Guarantees,
as evidenced by their execution of such Guarantees.
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Section 2.02. Execution and Authentication. Two Officers shall execute
the Securities (other than coupons) for the Company by facsimile or manual
signature in the name and on behalf of the Company. The seal of the Company, if
any, shall be reproduced on the Securities. If an Officer whose signature is on
a Security no longer holds that office at the time the Security is
authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an authenticating
agent (the "Authenticating Agent") to authenticate Securities (other than
coupons). The Authenticating Agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such Authenticating Agent.
A Security (other than coupons) shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series having attached
thereto appropriate coupons, if any, executed by the Company and having endorsed
thereon the Guarantees executed by the Guarantor to the Trustee for
authentication together with the applicable documents referred to below in this
Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Company. In authenticating any
Securities of a series, the Trustee shall be entitled to receive prior to the
first authentication of any Securities of such series, and (subject to Article
8) shall be fully protected in relying upon, unless and until such documents
have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and
terms of the Securities of that series and the related Guarantees were
established;
(2) an Officers' Certificate setting forth the form or forms and
terms of the Securities and the related Guarantees, stating that the form
or forms and terms of the Securities of such series and the related
Guarantees have been, or will be when established in accordance with such
procedures as shall be referred to therein, established in compliance with
this Indenture; and
12
(3) an Opinion of Counsel substantially to the effect that (i) the
form or forms and terms of the Securities of such series have been, or will
be when established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture, (ii) that the
supplemental indenture, to the extent applicable, and Securities have been
duly authorized and, if executed and authenticated in accordance with the
provisions of the Indenture and delivered to and duly paid for by the
purchasers thereof on the date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors' rights
generally, general principles of equity, and such other matters as shall be
specified therein and (iii) the Guarantees endorsed on the Securities have
been duly authorized and, when executed by the Guarantor in accordance with
the provisions of the Indenture and delivered to the purchasers of the
Securities on the date of such opinion, would be entitled to the benefits
of the Indenture and would be valid and binding obligations of the
Guarantor, enforceable against the Guarantor in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors' rights
generally, general principles of equity, and such other matters as shall be
specified therein.
If the Company shall establish pursuant to Section 2.03 that the Securities
of a series or a portion thereof are to be issued in the form of one or more
Registered Global Securities, then the Company shall execute and the Trustee
shall authenticate and deliver one or more Registered Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued in such form and
not yet canceled, (ii) shall be registered in the name of the Depositary for
such Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or its custodian or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
13
Section 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with all other unsecured and unsubordinated
debt of the Company. There shall be established in or pursuant to Board
Resolution (or pursuant to the action of Persons to whom such authority is
delegated in such Board Resolution) or one or more indentures supplemental
hereto, prior to the initial issuance of Securities of any series, subject to
the last sentence of this Section 2.03,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
and any limitation on the ability of the Company to increase such aggregate
principal amount after the initial issuance of the Securities of that
series (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, or upon redemption of,
other Securities of the series pursuant hereto);
(3) the date or dates on which the principal of the Securities of the
series is payable (which date or dates may be fixed or extendible);
(4) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall
be payable and (in the case of Registered Securities) on which a record
shall be taken for the determination of Holders to whom interest is payable
and/or the method by which such rate or rates or date or dates shall be
determined;
(5) if other than as provided in Section 5.02, the place or places
where the principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and notice to
Holders may be published;
14
(6) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund
or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which and
any of the terms and conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the Principal thereof, the portion of the Principal
of Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities of the
series are denominated, the coin or currency in which payment of the
Principal of or interest on the Securities of the series shall be payable
or if the amount of payments of Principal of and/or interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency other than that in which the Securities of the series
are denominated, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency or currencies, including composite currencies, in which payment of
the Principal of and interest on the Securities of the series shall be
payable, and the manner in which any such currencies shall be valued
against other currencies in which any other Securities shall be payable;
(12) whether the Securities of the series or any portion thereof will
be issuable as Registered Securities (and if so, whether such Securities
will be issuable as Registered Global Securities) or Unregistered
Securities (with or without coupons), or any combination of the foregoing,
any restrictions applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if other than as
provided
15
herein, the terms upon which Unregistered Securities of any series may be
exchanged for Registered Securities of such series and vice versa;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a person who is
not a U.S. person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Company will have the option
to redeem such Securities rather than pay such additional amounts;
(14) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying agents,
transfer agents or the registrar or any other agents with respect to the
Securities of the series;
(16) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all
Securities of the series), which provisions may be in addition to, in
substitution for, or in modification of (or any combination of the
foregoing) the provisions of Article 9;
(17) if the Securities of the series are issuable in whole or in part
as one or more Registered Global Securities, the identity of the Depositary
for such Registered Global Security or Securities;
(18) any addition to or modification or deletion of any Events of
Default set forth in Article 7 or covenant set forth in Article 5
pertaining to the Securities of the series;
(19) the Guarantees of the Securities of such series pursuant to
Article 4 hereof; and
(20) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining thereto
shall be substantially identical, except in the case of Registered Securities as
to date and denomination, except in the case of any Periodic Offering and except
as
16
may otherwise be provided by or pursuant to the Board Resolution referred to
above or as set forth in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution or in any such indenture supplemental hereto
and any forms and terms of Securities to be issued from time to time may be
completed and established from time to time prior to the issuance thereof by
procedures described in such Board Resolution or supplemental indenture.
Section 2.04. Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by Section
2.03 or, if not so established with respect to Securities of any series, in
denominations of $1,000 and any integral multiple thereof. The Securities of
each series shall be numbered, lettered or otherwise distinguished in such
manner or in accordance with such plan as the Officers of the Company executing
the same may determine, as evidenced by their execution thereof.
Each Security shall be dated the date of its authentication. The Securities
of each series shall bear interest, if any, from the date, and such interest and
shall be payable on the dates, established as contemplated by Section 2.03.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The term "record date" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as such
in the terms of the Registered Securities of such series established as
contemplated by Section 2.03, or, if no such date is so established, the
fifteenth day next preceding such interest payment date, whether or not such
record date is a Business Day.
Section 2.05. Registrar and Paying Agent; Agents Generally. The Company
shall maintain an office or agency where Securities may be presented for
registration, registration of transfer or for exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"), which shall be in the Borough of Manhattan, The City of New York.
17
The Company shall cause the Registrar to keep a register of the Registered
Securi ties and of their registration, transfer and exchange (the "Security
Register"). The Company may have one or more additional Paying Agents or
transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture and the Trust Indenture Act that relate to such Agent. The
Company shall give prompt written notice to the Trustee of the name and address
of any Agent and any change in the name or address of an Agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such.
The Company may remove any Agent upon written notice to such Agent and the
Trustee; provided that no such removal shall become effective until (i) the
acceptance of an appointment by a successor Agent to such Agent as evidenced by
an appropriate agency agreement entered into by the Company and such successor
Agent and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. The Company or any affiliate of the
Company may act as Paying Agent or Registrar; provided that neither the Company
nor an affiliate of the Company shall act as Paying Agent in connection with the
defeasance of the Securities or the discharge of this Indenture under Article 9.
The Company initially appoints the Trustee as Registrar, Paying Agent and
Authenticating Agent. If, at any time, the Trustee is not the Registrar, the
Registrar shall make available to the Trustee ten days prior to each interest
payment date and at such other times as the Trustee may reasonably request the
names and addresses of the Holders as they appear in the Security Register.
Section 2.06. Paying Agent to Hold Money in Trust. Not later than 10:00
a.m. New York City time on each due date of any Principal or interest on any
Securities, the Company shall deposit with the Paying Agent money in immediately
available funds sufficient to pay such Principal or interest. The Company shall
require each Paying Agent other than the Trustee to agree in writing that such
Paying Agent shall hold in trust for the benefit of the Holders of such
Securities or the Trustee all money held by the Paying Agent for the payment of
Principal of and interest on such Securities and shall promptly notify the
Trustee of any default by the Company in making any such payment. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
18
account for any funds disbursed. Upon doing so, the Paying Agent shall have no
further liability for the money so paid over to the Trustee. If the Company or
any affiliate of the Company acts as Paying Agent, it will, on or before each
due date of any Principal of or interest on any Securities, segregate and hold
in a separate trust fund for the benefit of the Holders thereof a sum of money
sufficient to pay such Principal or interest so becoming due until such sum of
money shall be paid to such Holders or otherwise disposed of as provided in this
Indenture, and will promptly notify the Trustee in writing of its action or
failure to act as required by this Section.
Section 2.07. Transfer and Exchange. Unregistered Securities (except for
any temporary global Unregistered Securities) and coupons (except for coupons
attached to any temporary global Unregistered Securities) shall be transferable
by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series and
tenor having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of
the Company that shall be maintained for such purpose in accordance with Section
2.05 and upon payment, if the Company shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise established pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section
5.02, with, in the case of Unregistered Securities that have coupons attached,
all unmatured coupons and all matured coupons in default thereto appertaining,
and upon payment, if the Company shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise established pursuant to
Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 5.02, with, in the case of Unregistered Securities
that have coupons attached, all unmatured coupons and all matured coupons in
default thereto appertaining, and upon payment, if the Company shall so require,
of the charges hereinafter
19
provided. Registered Securities of any series may not be exchanged for
Unregistered Securities of such series. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Registered Securities presented for registration of transfer, exchange,
redemption or payment shall be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee duly executed by, the holder or his attorney duly authorized in
writing.
The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
Notwithstanding any other provision of this Section 2.07, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of any
series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and deliver Registered Securities of such series
and tenor, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of such Registered Global Securities, in exchange
for such Registered Global Securities.
20
The Company may at any time and in its sole discretion determine that any
Registered Global Securities of any series shall no longer be maintained in
global form. In such event, the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will authenticate and deliver,
Registered Securities of such series and tenor in any authorized denominations,
in an aggregate principal amount equal to the principal amount of such
Registered Global Securities, in exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the form of
Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.02 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with respect to any
Registered Global Security, the Depositary for such Registered Global Security
may surrender such Registered Global Security in exchange in whole or in part
for Registered Securities of the same series and tenor in definitive registered
form on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Registered Securities issued in exchange for a Registered Global Security
pursuant to this Section 2.07 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Company or the Trustee. The
Trustee or
21
such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall
have a Guarantee or Guarantees endorsed thereon to the same extent as the
Securities surrendered upon such transfer or exchange, and shall be valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such transfer
or exchange.
Notwithstanding anything herein or in the forms or terms of any Securities
to the contrary, none of the Company, the Trustee or any agent of the Company or
the Trustee shall be required to exchange any Unregistered Security for a
Registered Security if such exchange would result in adverse Federal income tax
consequences to the Company (such as, for example, the inability of the Company
to deduct from its income, as computed for Federal income tax purposes, the
interest payable on the Unregistered Securities) under then applicable United
States Federal income tax laws. The Trustee and any such agent shall be entitled
to rely on an Officers' Certificate or an Opinion of Counsel in determining such
result.
The Registrar shall not be required (i) to issue, authenticate, register
the transfer of or exchange Securities of any series for a period of 15 days
before a selection of such Securities to be redeemed or (ii) to register the
transfer of or exchange any Security selected for redemption in whole or in
part.
Section 2.08. Replacement Securities. If a defaced or mutilated Security
of any series is surrendered to the Trustee or if a Holder claims that its
Security of any series has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Security of such
series and tenor and principal amount bearing a number not contemporaneously
outstanding. If required by the Trustee or the Company, an indemnity bond must
be furnished that is sufficient in the judgment of both the Trustee and the
Company to protect the Company, the Trustee and any Agent from any loss that any
of them may suffer if a Security is replaced. The Company may charge such Holder
for its expenses and the expenses of the Trustee (including without limitation
attorneys' fees and expenses) in replacing a Security. In case any such
mutilated, defaced, lost, destroyed or wrongfully taken Security has become or
is about to become due and payable, the Company in its discretion may pay such
Security instead of issuing a new Security in replacement thereof.
22
Every replacement Security is an additional obligation of the Company and
shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of this Section
are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
Section 2.09. Outstanding Securities. Securities outstanding at any time
are all Securities that have been authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of the Company)
holds on the maturity date or any redemption date or date for repurchase of the
Securities money sufficient to pay Securities payable or to be redeemed or
repurchased on that date, then on and after that date such Securities cease to
be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one of
its affiliates holds such Security, provided, however, that, in determining
whether the Holders of the requisite principal amount of the outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any affiliate of
the Company shall be disregarded and deemed not to be outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities as to which a Responsible Officer of the Trustee has received written
notice to be so owned shall be so disregarded. Any Securities so owned which are
pledged by the Company, or by any affiliate of the Company, as security for
loans or other obligations, otherwise than to another such affiliate of the
Company, shall be deemed to be outstanding, if the pledgee is entitled pursuant
to the terms of its pledge agreement and is free to exercise in its or his
discretion the right to vote such securities, uncontrolled by the Company or by
any such affiliate.
Section 2.10. Temporary Securities. Until definitive Securities of any
series are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities of such series. Temporary Securities of any
series shall be substantially in the form of definitive Securities of such
series but
23
may have insertions, substitutions, omissions and other variations determined to
be appropriate by the Officers executing the temporary Securities, as evidenced
by their execution of such temporary Securities. If temporary Securities of any
series are issued, the Company will cause definitive Securities of such series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of any series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series and tenor upon surrender
of such temporary Securities at the office or agency of the Company designated
for such purpose pursuant to Section 5.02, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of such
series and tenor and authorized denominations. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Section 2.11. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Registrar, any transfer
agent and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment. The Trustee shall cancel
and destroy all Securities surrendered for transfer, exchange, payment or
cancellation and shall deliver a certificate of destruction to the Company. The
Company may not issue new Securities to replace Securities it has paid in full
or delivered to the Trustee for cancellation.
Section 2.12. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee shall
use CUSIP numbers or CINS numbers, as the case may be, in notices of redemption
or exchange as a convenience to Holders and no representation shall be made as
to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or exchange.
Section 2.13. Defaulted Interest. If the Company defaults in a payment of
interest on the Securities, it shall pay, or shall deposit with the Paying Agent
money in immediately available funds sufficient to pay, the defaulted interest
plus (to the extent lawful) any interest payable on the defaulted interest (as
may be specified in the terms thereof, established pursuant to Section 2.03) to
the Persons who are Holders on a subsequent special record date, which shall
mean the 15th day next preceding the date fixed by the Company for the payment
of defaulted
24
interest, whether or not such day is a Business Day. At least 15 days before
such special record date, the Company shall mail to each Holder and to the
Trustee a notice that states the special record date, the payment date and the
amount of defaulted interest to be paid.
Section 2.14. Series May Include Tranches. A series of Securities may
include one or more tranches (each a "tranche") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections
2.02 (other than the fourth paragraph thereof) through 2.04, 2.07, 2.08, 2.10,
3.01 through 3.05, 5.02, 7.01 through 7.14, 9.01 through 9.05 and 10.02, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to Section 2.03. In particular, and without
limiting the scope of the next preceding sentence, any of the provisions of such
sections which provide for or permit action to be taken with respect to a series
of Securities shall also be deemed to provide for and permit such action to be
taken instead only with respect to Securities of one or more tranches within
that series (and such provisions shall be deemed satisfied thereby), even if no
comparable action is taken with respect to Securities in the remaining tranches
of that series.
ARTICLE 3
Redemption
Section 3.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
Section 3.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Company shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not
25
more than 60 days prior to the date fixed for redemption to such Holders of
Registered Securities of such series at their last addresses as they shall
appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities of any series to be redeemed as a whole or in part who
have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act, shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Company, the Trustee shall make such information available
to the Company for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part shall
be published in an Authorized Newspaper in The City of New York or with respect
to any Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits in an Authorized Newspaper in
London, in each case, once in each of three successive calendar weeks, the first
publication to be not less than 30 days nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed or published in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
CUSIP numbers of the Securities to be redeemed, the date fixed for redemption,
the redemption price, the place or places of payment, that payment will be made
upon presentation and surrender of such Securities and, in the case of
Securities with coupons attached thereto, of all coupons appertaining thereto
maturing after the date fixed for redemption, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified in
such notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security of a series is
to be redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a new Security
or Securities of such series and tenor in principal amount equal to the
unredeemed portion thereof will be issued.
26
The notice of redemption of Securities of any series to be redeemed at the
option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m. New York City time on the redemption date specified
in the notice of redemption given as provided in this Section, the Company will
deposit with the Trustee or with one or more Paying Agents (or, if the Company
is acting as its own Paying Agent, set aside, segregate and hold in trust as
provided in Section 2.06) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 10 days prior to the
last date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.02 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating that all such
Securities are to be redeemed. If less than all the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 15
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.02 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of such Securities to be redeemed. In case of a
redemption at the election of the Company prior to the expiration of any
restriction on such redemption, the Company shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers' Certificate stating that such redemption is not prohibited by such
restriction.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, pro rata, by lot or in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Company in writing of the Securities of such series
selected for redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
Section 3.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
27
Securities specified in such notice shall become due and payable on the
date and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to such date)
interest on the Securities or portions of Securities so called for redemption
shall cease to accrue, and the unmatured coupons, if any, appertaining thereto
shall be void and, except as provided in Sections 8.11 and 9.04, such Securities
shall cease from and after the date fixed for redemption to be entitled to any
benefit under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
together with all coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions thereof shall be
paid and redeemed by the Company at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with coupons attached thereto, to the
Holders of the coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.04 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
such Security.
If any Security with coupons attached thereto is surrendered for redemption
and is not accompanied by all appurtenant coupons maturing after the date fixed
for redemption, the surrender of such missing coupon or coupons may be waived by
the Company and the Trustee, if there be furnished to each of them such security
or indemnity as they may require to save each of them harmless.
Upon presentation of any Security of any series redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Company, a new Security
or Securities of such series and tenor (with any unmatured coupons attached), of
authorized denominations, in principal amount equal to the unredeemed portion of
the Security so presented.
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Section 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
Section 3.05. Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of Securities of any series
is herein referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of the Securities of any
series is herein referred to as an "optional sinking fund payment". The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except through a mandatory sinking fund payment) by the
Company or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by
the Company and delivered to the Trustee for cancellation pursuant to Section
2.11, (b) receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Company through any
optional sinking fund payment. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date
for any series, or such shorter period as shall be acceptable to the Trustee,
the Company will deliver to the Trustee an Officers' Certificate (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of specified Securities of such
series and the basis for such credit, (b) stating that none of the specified
Securities of such series has theretofore been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Company intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such
29
optional sinking fund payment which the Company intends to pay on or before the
next succeeding sinking fund payment date. The Trustee shall have no duty to
verify the facts set forth in such Officer's Certificate and may conclusively
rely on such Officer's Certificate. Any Securities of such series to be credited
and required to be delivered to the Trustee in order for the Company to be
entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.11 to the Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers' Certificate shall be
irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or delivery of
securities therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Company, on or before any such sixtieth day,
to deliver such Officer's Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Company (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof and (ii) that the Company
will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or a lesser sum if the Company shall so request with respect to the Securities
of any series), such cash shall be applied on the next succeeding sinking fund
payment date to the redemption of Securities of such series at the sinking fund
redemption price thereof together with accrued interest thereon to the date
fixed for redemption. If such amount shall be $50,000 (or such lesser sum) or
less and the Company makes no such request then it shall be carried over until a
sum in excess of $50,000 (or such lesser sum) is available. The Trustee shall
select, in the manner provided in Section 3.02, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by the
Company) inform the Company of the serial numbers of the Securities of such
series (or portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to the
Trustee at least 60 days prior to the sinking fund payment date as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Company or the Guarantor or (b) an entity specifically identified in such
Officers' Certificate as directly or indirectly controlling or controlled by or
under direct or indirect
30
common control with the Company or the Guarantor. The Trustee, in the name and
at the expense of the Company (or the Company, if it shall so request the
Trustee in writing) shall cause notice of redemption of the Securities of such
series to be given in substantially the manner provided in Section 3.02 (and
with the effect provided in Section 3.03) for the redemption of Securities of
such series in part at the option of the Company. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series and,
together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the Principal of, and
interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund payment
date, the Company shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such Default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article 7 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 7.04 or
the Default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
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ARTICLE 4
Guarantee of Debt Securities
Section 4.01. Unconditional Guarantee. The Guarantor hereby unconditionally
guarantees to each holder of a Security of each series authenticated and
delivered by the Trustee, the due and punctual payment of the Principal of
(including any amount in respect of original issue discount), and interest
(including, in the event the Company defaults on a payment of interest on the
Securities, defaulted interest plus (to the extent lawful) any interest payable
on the defaulted interest), if any (together with any additional amounts payable
pursuant to the terms of such Security), on such Security and the due and
punctual payment of the sinking fund payments, if any, and analogous
obligations, if any, provided for pursuant to the terms of such Security, when
and as the same shall become due and payable, whether at maturity or upon
redemption or upon declaration of acceleration or otherwise according to the
terms of such Security and of this Indenture. In case of default by the Company
in the payment of any such principal (including any amount in respect of
original issue discount), interest (including, in the event the Company defaults
on a payment of interest on the Securities, defaulted interest plus (to the
extent lawful) any interest payable on the defaulted interest, together with any
additional amounts payable pursuant to the terms of such Security), sinking fund
payment, or analogous obligation, the Guarantor agrees duly and punctually to
pay the same. The Guarantor hereby agrees that its obligations hereunder shall
be absolute and unconditional irrespective of any extension of the time for
payment of any such Security, any modification of any such Security, any
invalidity, irregularity or unenforceability of any such Security or this
Indenture, any failure to enforce the same or any waiver, modification or
indulgence granted to the Company with respect thereto by the holder of such
Security or the Trustee, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a demand or proceeding first against the Company, protest or
notice with respect to any such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this guarantee will not be
discharged as to any such Security except by payment in full of the Principal of
(including any amount payable in respect of original issue discount), and
interest (including, in the event the Company defaults on a payment of interest
on the Securities, defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest), if any (together with any additional amounts
payable pursuant to the terms of such Security), thereon, either pursuant to
Section 9.01 or Section 9.02 or otherwise.
32
Upon making any payment hereunder, the Guarantor shall be subrogated to the
rights of a Holder against the Company with respect to such payment; provided
that the Guarantor shall not enforce any payment by way of subrogation until all
amounts of Principal of and interest on the Securities and all other amounts
payable by the Company under this Indenture have been paid in full.
The guarantee set forth in this Section shall not be valid or become
obligatory for any purpose with respect to a Security of any series until the
Security shall have been authenticated by the Trustee.
Section 4.02. Execution of Guarantees. To evidence its guarantee specified
in Section 4.01 to the holders of Securities of any series, the Guarantor hereby
agrees to execute the Guarantees in substantially the form above recited to be
endorsed on each Security of such series authenticated and delivered by the
Trustee. Two Officers of the Guarantor shall execute the Guarantees for the
Guarantor by facsimile or manual signature in the name and on behalf of the
Guarantor under the corporate seal of the Guarantor, if any, prior to the
authentication of the Security on which it is endorsed, and the delivery of such
Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such Guarantees on behalf of the Guarantor. The seal
of the Guarantor may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Guarantees. Typographical and
other minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Guarantee that
has been duly authenticated and delivered by the Trustee.
The signatures of the two Officers may be imprinted or otherwise reproduced
on the Guarantees. If an Officer whose signature is on a Guarantee no longer
holds that office at the time the Security on which such Guarantee is endorsed
is authenticated, the Guarantee shall nevertheless be valid.
ARTICLE 5
Covenants
Section 5.01. Payment of Securities. The Company shall pay the Principal of
and interest on the Securities on the dates and in the manner provided in the
Securities and this Indenture. The interest on Securities with coupons attached
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only upon presentation and surrender of the
33
several coupons for such interest installments as are evidenced thereby as they
severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of any
series to the contrary, if the Company and a Holder of any Registered Security
so agree, payments of interest on, and any portion of the Principal of, such
Holder's Registered Security (other than interest payable at maturity or on any
redemption or repayment date or the final payment of Principal on such Security)
shall be made by the Paying Agent, upon receipt from the Company of immediately
available funds by 11:00 a.m., New York City time (or such other time as may be
agreed to between the Company and the Paying Agent), directly to the Holder of
such Security (by Federal funds wire transfer or otherwise) if the Holder has
delivered written instructions to the Trustee 15 days prior to such payment date
requesting that such payment will be so made and designating the bank account to
which such payments shall be so made and in the case of payments of Principal
surrenders the same to the Trustee in exchange for a Security or Securities
aggregating the same principal amount as the unredeemed principal amount of the
Securities surrendered. The Trustee shall be entitled to rely on the last
instruction delivered by the Holder pursuant to this Section 5.01 unless a new
instruction is delivered 15 days prior to a payment date. The Company will
indemnify and hold each of the Trustee and any Paying Agent harmless against any
loss, liability or expense (including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such Holder in connection with
any such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
Section 5.02. Maintenance of Office or Agency. The Company will maintain in
the Borough of Manhattan, The City of New York, an office or agency where
Securities may be surrendered for registration of transfer or
34
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The Company hereby initially designates the Corporate Trust Office of the
Trustee, located in the Borough of Manhattan, The City of New York, as such
office or agency of the Company. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.02.
The Company will maintain one or more agencies in a city or cities located
outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of any series are listed) where the Unregistered Securities, if any,
of each series and coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless, pursuant to
applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company. Notwithstanding the
foregoing, if full payment in United States Dollars ("Dollars") at each agency
maintained by the Company outside the United States for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Company maintained in the Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of any series may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 5.03. Negative Pledge. The Company and the Guarantor will not, and
will not permit any Significant Subsidiary to, create, incur or suffer to exist
any Lien on any Equity Interests, indebtedness or other obligations of a
35
Significant Subsidiary held by the Guarantor, the Company or any Subsidiary or
any Principal Property of the Company or a Significant Subsidiary, whether such
Equity Interests, indebtedness or other obligations of a Significant Subsidiary
or Principal Property are owned at the date of this Indenture or hereafter
acquired, unless the Company secures or causes such Significant Subsidiary to
secure the outstanding Securities equally and ratably with all indebtedness
secured by such Lien, so long as such indebtedness shall be so secured;
provided, however, that this covenant shall not apply in the case of:
(i) (a) the creation of any Lien on any Equity Interests,
indebtedness or other obligations of a Significant Subsidiary or any
Principal Property hereafter acquired (including acquisitions by way of
merger or consolidation) by the Company or a Significant Subsidiary
contemporaneously with such acquisition, or within 180 days thereafter, to
secure or provide for the payment or financing of any part of the purchase
price thereof, or (b) the assumption of any Lien upon any Equity Interests,
indebtedness or other obligations of a Significant Subsidiary or any
Principal Property hereafter acquired (including acquisitions by way of
merger or consolidation) existing at the time of such acquisition, provided
that every such Lien referred to in subclause (a) or (b) of this clause (i)
shall not attach to Equity Interests, indebtedness or other obligations of
a Significant Subsidiary or any Principal Property other than the Equity
Interests, indebtedness or other obligations of the Significant Subsidiary
or any Principal Property so acquired and fixed improvements thereon;
(ii) any Lien on any Equity Interests, indebtedness or other
obligations of a Significant Subsidiary or any Principal Property existing
at the date of this Indenture;
(iii) any Lien on any Equity Interests, indebtedness or other
obligations of a Significant Subsidiary or any Principal Property in favor
of the Company or any Significant Subsidiary;
(iv) any Lien on any Principal Property being constructed or
improved securing loans to finance such construction or improvements;
(v) any Lien on Equity Interests, indebtedness or other
obligations of a Significant Subsidiary or any Principal Property incurred
in connection with the issuance of tax-exempt governmental obligations;
(vi) Liens on any Principal Property for taxes not yet due or which
are being contested in good faith by appropriate proceedings and
36
with respect to which adequate reserves, to the extent required by GAAP,
have been made;
(vii) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens on any Principal Property arising in the
ordinary course of business and securing obligations that are not due and
payable or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves, to the extent
required by GAAP, have been made;
(viii) zoning restrictions, easements, rights-of-way, restrictions on
use of real property and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of any of
the Company, the Guarantor or any Significant Subsidiary;
(ix) any Lien on Equity Interests, indebtedness or other
obligations of a Non-U.S. Subsidiary held by a Non-U.S. Subsidiary or any
Principal Property of a Non-U.S. Subsidiary; provided that, at the time of
the creation or incurrence of any such Lien, the aggregate book value of
the total assets of the Non-U.S. Subsidiaries then subject to Liens
securing indebtedness for borrowed money (and after giving effect to the
proposed Lien) shall not exceed 25% of the Total Assets of the Guarantor
and its Subsidiaries;
(x) any Lien on Equity Interests, indebtedness or other
obligations of a Securitization Subsidiary created, incurred, assumed or
suffered to exist in connection with a Permitted Receivables Financing;
(xi) Liens arising by reason of any attachment, judgment, decree or
order of any court or other governmental authority, so long as any
appropriate legal proceedings which may have been initiated for review of
such attachment, judgment, decree or order shall not have been finally
terminated or so long as the period within which such proceedings may be
initiated shall not have expired;
(xii) any Lien on Equity Interests, indebtedness or other
obligations of a Significant Subsidiary that was not a Significant
Subsidiary at the time such Lien was created or incurred; and
(xiii) any renewal of or substitution for any Lien permitted by any
of the preceding clauses (i), (ii), (iv), (v), (vi), (vii), (viii), (ix),
(x), (xi) or
37
(xii), provided, that the indebtedness secured is not increased (except for
increases in the amount of premiums or fees payable in connection with such
renewal or substitution) nor the Lien extended to any additional assets
(other than assets as to which the creation, incurrence or existence of
Liens is not governed by this Section).
(b) Notwithstanding the provisions of paragraph (a) of this Section, the
Company or any Significant Subsidiary may create, incur, assume or suffer to
exist Liens in addition to those permitted by clauses (i) through (xiii) of
paragraph (a) of this Section, and renew, extend or replace such Liens, provided
that at the time of such creation, incurrence, assumption, renewal, extension or
replacement, and after giving effect thereto, the aggregate outstanding
principal or face amount of all indebtedness secured by Liens governed by clause
(a) and not permitted by clauses (i) through (xiii) thereof does not exceed 10%
of Consolidated Net Worth.
Section 5.04. Certain Sale and Lease-back Transactions. The Company will
not, and will not permit any Significant Subsidiary to, sell or transfer,
directly or indirectly, except to the Company or a Significant Subsidiary, any
Principal Property as an entirety, or any substantial portion thereof, with the
intention of taking back a lease of such property, except a lease for a period
of three years or less at the end of which it is intended that the use of such
property by the lessee will be discontinued and any transaction for the sale and
lease-back of any property if such lease is entered into within 180 days after
the later of the acquisition, completion of construction or commencement of
operation of such property; provided that, notwithstanding the foregoing, the
Company or any Significant Subsidiary may sell any such Principal Property and
lease it back for a period longer than three years (i) if the Company or such
Significant Subsidiary would be entitled, pursuant to the provisions of Section
5.03, to create a Lien on the property to be leased securing indebtedness in an
amount equal to the Attributable Debt with respect to such sale and lease-back
transaction without equally and ratably securing the outstanding Securities or
(ii)(A) the Company promptly informs the Trustee of such transaction, (B) the
net proceeds of such transaction are at least equal to the fair value (as
determined by Board Resolution of the Company) of such property and (C) the
Company causes an amount equal to the net cash proceeds of the sale to be
applied to the retirement, within 120 days after receipt of such proceeds, of
Funded Debt incurred or assumed by the Company or a Significant Subsidiary
(including the Securities); provided further that, in lieu of applying all of or
any part of such net cash proceeds to such retirement, the Company may, within
75 days after such sale, deliver or cause to be delivered to the applicable
trustee for cancellation either debentures or notes evidencing Funded Debt of
the Company (which may include the Securities) or of a Significant Subsidiary
previously authenticated and delivered by the applicable
38
trustee, and not theretofore tendered for sinking fund purposes or called for a
sinking fund or otherwise applied as a credit against an obligation to redeem or
retire such notes or debentures, and an Officers' Certificate (which shall be
delivered to the Trustee and which need not contain the statements prescribed by
Section 11.04) stating that the Company elects to deliver or cause to be
delivered such debentures or notes in lieu of retiring Funded Debt as
hereinabove provided. If the Company shall so deliver debentures or notes to the
applicable trustee and the Company shall duly deliver such Officers'
Certificate, the amount of cash which the Company shall be required to apply to
the retirement of Funded Debt under this Section 5.04 shall be reduced by an
amount equal to the aggregate of the then applicable optional redemption prices
(not including any optional sinking fund redemption prices) of such debentures
or notes, or, if there are no such redemption prices, the principal amount of
such debentures or notes; provided, that in the case of debentures or notes
which provide for an amount less than the principal amount thereof to be due and
payable upon a declaration of the maturity thereof, such amount of cash shall be
reduced by the amount of principal of such debentures or notes that would be due
and payable as of the date of such application upon a declaration of
acceleration of the maturity thereof pursuant to the terms of the indenture
pursuant to which such debentures or notes were issued.
Section 5.05. Certificate to Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than four months after the end of
its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 11.04)
from its principal executive, financial or accounting officer or its treasurer
as to his or her knowledge of the compliance of the Company with all conditions
and covenants under this Indenture (such compliance to be determined without
regard to any period of grace or requirement of notice provided under this
Indenture) which certificate shall comply with the requirements of the Trust
Indenture Act.
Section 5.06. Reports by the Company. The Company covenants to file with
the Trustee, within 15 days after the Company is required to file the same with
the Commission, copies of the annual reports and of the information, documents,
and other reports that the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act.
Section 5.07 Guarantor to Maintain Office or Agency. The Guarantor will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where notices and demands to or upon the Guarantor in respect of the Guarantees
on the Securities of any series of this Indenture may be served, and an office
or agency where the Securities may be presented for payment under the
Guarantees. The Guarantor hereby initially designates the Corporate Trust Office
39
of the Trustee, located in the Borough of Manhattan, The City of New York, as
such office or agency of the Guarantor. The Guarantor will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Guarantor shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.02.
Section 5.08. Guarantor's Certificate to Trustee. The Guarantor will
furnish to the Trustee annually, on or before a date not more than four months
after the end of its fiscal year (which, on the date hereof, is a calendar
year), a brief certificate (which need not contain the statements required by
Section 11.04) from its principal executive, financial or accounting officer or
its treasurer as to his or her knowledge of the compliance of the Guarantor with
all conditions and covenants under this Indenture (such compliance to be
determined without regard to any period of grace or requirement of notice
provided under this Indenture) which certificate shall comply with the
requirements of the Trust Indenture Act.
Section 5.09. Reports by the Guarantor. The Guarantor covenants to file
with the Trustee, within 15 days after the Guarantor is required to file the
same with the Commission, copies of the annual reports and of the information,
documents, and other reports that the Guarantor may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
ARTICLE 6
Successor Corporation
Section 6.01. When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person or permit any Person to merge with or into
the Company unless:
(i) either (x) the Company shall be the continuing Person or (y)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or that acquired or leased such property and
assets of the Company shall be a corporation, partnership or limited
liability company organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and shall
40
expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, all of the obligations of the Company on all of the Securities
and under this Indenture and, if the successor corporation or partnership
is not the Guarantor, the Guarantor (unless such successor is also the
successor to the Guarantor under Section 6.04 of this Indenture) shall
unconditionally guarantee the successor corporation's or partnership's
obligations on all of the Securities and under this Indenture and the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that such consolidation, merger or transfer and such supplemental indenture
complies with this provision and that all conditions precedent provided for
herein relating to such transaction have been complied with and that such
supplemental indenture constitutes the legal, valid and binding obligation
of the Company or such successor enforceable against such entity in
accordance with its terms, subject to customary exceptions; and
(ii) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing.
Section 6.02. Successor Substituted. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 6.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein.
Section 6.03. When Guarantor May Merge, Etc. The Guarantor shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person or permit any Person to merge with or into
the Guarantor unless:
(i) either (x) the Guarantor shall be the continuing Person or (y) the
Person (if other than the Guarantor) formed by such consolidation or into
which the Guarantor is merged or that acquired or leased such property and
assets of the Guarantor shall be a corporation, partnership or limited
liability company organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee,
the due and punctual performance of the Guarantees, and the
41
due and punctual performance and observance of all of the covenants and
conditions of this Indenture and the Securities and the Guarantee to be
performed by the Guarantor; and
(ii) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing.
Section 6.04. Successor to the Guarantor. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Guarantor in accordance with
Section 6.03 of this Indenture, the successor person (which may be the Company)
formed by such consolidation or into which the Guarantor is merged or to which
such sale, conveyance, transfer, lease or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Guarantor under this Indenture with the same effect as if such successor
Person had been named as the Guarantor herein.
ARTICLE 7
Default and Remedies
Section 7.01. Events of Default. An "Event of Default" shall occur with
respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of any
Security of such series when the same becomes due and payable at maturity,
upon acceleration, redemption or mandatory repurchase, including as a
sinking fund installment, or otherwise;
(b) the Company defaults in the payment of interest on any Security of
such series when the same becomes due and payable, and such default
continues for a period of 30 days;
(c) the Company or the Guarantor defaults in the performance of or
breaches any other covenant or agreement of the Company or the Guarantor in
this Indenture with respect to any Security of such series or in the
Securities of such series and such default or breach continues for a period
of 60 consecutive days after written notice to the Company or the Guarantor
by the Trustee or to the Company or the Guarantor and the
42
Trustee by the Holders of 25% or more in aggregate principal amount of the
Securities of all series then outstanding affected thereby;
(d) an involuntary case or other proceeding shall be commenced against
the Company, the Guarantor or any Significant Subsidiary with respect to it
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect 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 Company, the Guarantor or any
Significant Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(e) the Company, the Guarantor or any Significant Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consents to the entry of
an order for relief in an involuntary case under any such law, (B) consents
to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company, the Guarantor or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company, the Guarantor
or any Significant Subsidiary or (C) effects any general assignment for the
benefit of creditors; or
(f) any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
Section 7.02. Acceleration. (a) If an Event of Default described in clauses
(a) or (b) of Section 7.01 with respect to the Securities of any series then
outstanding occurs and is continuing, then, and in each and every such case,
except for any series of Securities the Principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any such affected series then
outstanding hereunder (each such series treated as a separate class) by notice
in writing to the Company or the Guarantor (and to the Trustee if given by
Securityholders), may declare the entire Principal (or, if the Securities of any
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.03) of all Securities of such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
43
(b) If an Event of Default described in clauses (c) or (f) of Section 7.01
with respect to the Securities of one or more but not all series then
outstanding, or with respect to the Securities of all series then outstanding,
occurs and is continuing, then, and in each and every such case, except for any
series of Securities the Principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount (or, if the Securities of any such series are Original Issue
Discount Securities, the amount thereof accelerable under this Section) of the
Securities of all such affected series then outstanding hereunder (treated as a
single class) by notice in writing to the Company (and to the Trustee if given
by Securityholders), may declare the entire Principal (or, if the Securities of
any such series are Original Issue Discount Securities, such portion of the
Principal as may be specified in the terms of such series established pursuant
to Section 2.03) of all Securities of all such affected series, and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
(c) If an Event of Default described in clause (d) or (e) of Section 7.01
occurs and is continuing, then the Principal (or, if any Securities are Original
Issue Discount Securities, such portion of the Principal as may be specified in
the terms thereof established pursuant to Section 2.03) of all the Securities
then outstanding and interest accrued thereon, if any, shall be and become
immediately due and payable, without any notice or other action by any Holder or
the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition that if, at
any time after the Principal (or, if the Securities are Original Issue Discount
Securities, such portion of the Principal as may be specified in the terms
thereof established pursuant to Section 2.03) of the Securities of any series
(or of all the Securities, as the case may be) shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company or the
Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest upon all the Securities of each such series
(or of all the Securities, as the case may be) and the Principal of any and all
Securities of each such series (or of all the Securities, as the case may be)
which shall have become due otherwise than by acceleration (with interest upon
such Principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series to the date
of such payment or deposit) and such amount as shall be sufficient to cover all
amounts owing the Trustee under
44
Section 8.07, and if any and all Events of Default under the Indenture, other
than the non-payment of the Principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then and in every such case the Holders of a majority in aggregate
principal amount of all the then outstanding Securities of all such series that
have been accelerated (voting as a single class), by written notice to the
Company and to the Trustee, may waive all defaults with respect to all such
series (or with respect to all the Securities, as the case may be) and rescind
and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
Principal of such Original Issue Discount Securities shall be deemed, for all
purposes hereunder, to be such portion of the Principal thereof as shall be due
and payable as a result of such acceleration, and payment of such portion of the
Principal thereof as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Original Issue Discount Securities.
Section 7.03. Other Remedies. If a payment default or an Event of Default
with respect to the Securities of any series occurs and is continuing, the
Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding.
Section 7.04. Waiver of Past Defaults. Subject to Sections 7.02, 7.07 and
10.02, the Holders of at least a majority in Principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the Principal
as is then accelerable under Section 7.02) of the outstanding Securities of all
series affected (voting as a single class), by notice to the Trustee, may waive
an existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of Principal of or
interest on any Security as specified in clauses (a) or (b) of Section 7.01 or
in respect of a covenant or provision of this Indenture which cannot be modified
or amended
45
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series arising therefrom shall be deemed
to have been cured, 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 thereto.
Section 7.05. Control by Majority. Subject to Sections 8.01 and 8.02(a)(v),
the Holders of at least a majority in aggregate Principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the Principal
as is then accelerable under Section 7.02) of the outstanding Securities of all
series affected (voting as a single class) may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided, that the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
may involve the Trustee in personal liability or that the Trustee determines in
good faith may be unduly prejudicial to the rights of Holders not joining in the
giving of such direction, it being understood that the Trustee shall have no
duty to ascertain whether or not such actions or forebearance are unduly
prejudicial to such Holders; and provided further, that the Trustee may take any
other action it deems proper that is not inconsistent with any directions
received from Holders of Securities pursuant to this Section 7.05.
Section 7.06. Limitations on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities of such series, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written notice of
a continuing Event of Default with respect to the Securities of such
series;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
46
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is inconsistent
with such written request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
Section 7.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of or interest, if any, on such Holder's Security
on or after the respective due dates expressed on such Security, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
Section 7.08. Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 7.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or the Guarantor for the whole amount (or such portion
thereof as specified in the terms established pursuant to Section 2.03 of
Original Issue Discount Securities) of Principal of, and accrued interest
remaining unpaid on, together with interest on overdue Principal of, and, to the
extent that payment of such interest is lawful, interest on overdue installments
of interest on, the Securities of such series, in each case at the rate or Yield
to Maturity (in the case of Original Issue Discount Securities) specified in
such Securities, and such further amount as shall be sufficient to cover all
amounts owing the Trustee under Section 8.07.
Section 7.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for amounts due
the Trustee under Section 8.07) and the Holders allowed in any judicial
proceedings relative to the Company or the Guarantor (or any other obligor on
the Securities), its creditors or its property and shall be entitled and
empowered to collect and receive any moneys, securities or other property
payable or deliverable upon conversion or exchange of the Securities or upon any
such claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
47
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
under Section 8.07. Nothing herein contained shall be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder,
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and may be a member of the
creditor's committee.
Section 7.10. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.07
applicable to the Securities of such series in respect of which moneys have
been collected;
SECOND: In case the Principal of the Securities of such series in respect
of which moneys have been collected shall not have become and be then due
and payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the Principal of the Securities of such series in respect
of which moneys have been collected shall have become and shall be then due
and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for Principal and interest, with interest
upon the overdue Principal, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of
48
Original Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the
whole amount so due and unpaid upon the Securities of such series, then to
the payment of such Principal and interest or Yield to Maturity, without
preference or priority of Principal over interest or Yield to Maturity, or
of interest or Yield to Maturity over Principal, or of any installment of
interest over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate of
such Principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company, the
Guarantor or any other person lawfully entitled thereto.
Section 7.11. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then, and in
every such case, subject to any determination in such proceeding, the Company,
the Guarantor, the Trustee and the Holders shall be restored to their former
positions hereunder and thereafter all rights and remedies of the Company, the
Guarantor, the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 7.12. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, in either case in respect to the
Securities of any series, a court may require any party litigant in such suit
(other than the Trustee) to file an undertaking to pay the costs of the suit,
and the court may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 7.12 does not apply to a suit by a Holder pursuant to
Section 7.07 or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.
Section 7.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
49
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 7.14. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article 7 or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE 8
Trustee
Section 8.01. General. The Trustee undertakes to perform such and only
such duties and responsibilities as are specifically set forth in Sections 3.15
and 3.16 of the Trust Indenture Act and as set forth herein and no implied
covenants or obligations shall be read into this Indenture. Notwithstanding the
foregoing, no provision of this Indenture shall require the 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, unless it receives indemnity satisfactory to it against any loss,
liability or expense. 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 Trustee shall be subject to the provisions of
this Article 8.
Section 8.02. Certain Rights of Trustee. Subject to Trust Indenture Act
Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, Officers'
Certificate, Opinion of Counsel (or both), statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper person or
persons. The Trustee need not investigate any fact or matter stated in the
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
50
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel, which shall conform
to Section 11.04. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion.
Subject to Sections 8.01 and 8.02, whenever in the administration of the
trusts of this Indenture the 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
willful misconduct on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of willful misconduct on the
part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this Indenture
upon the faith thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with due care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses
and liabilities that might be incurred by it in compliance with such
request or direction;
(vi) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance
with the direction of the Holders in accordance with Section 7.05 relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture;
51
(vii) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(viii) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, Officers' Certificate, Opinion of Counsel, Board
Resolution, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do
by the Holders of not less than a majority in aggregate principal amount of
the Securities of all series affected then outstanding; provided that, if
the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding;
(ix) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder;
(x) the Trustee shall not be bound to ascertain or inquire as to
the performance or observance of any covenants, conditions or agreements on
the part of the Company, except as otherwise set forth herein, but the
Trustee may require of the Company reasonable information and advice as to
the performance of the covenants, conditions and agreements contained
herein and shall be entitled in connection herewith to examine the books,
records and premises of the Company;
(xi) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not
be answerable for other than its negligence or willful misconduct; and
(xii) except for any event of which the Trustee has "actual
knowledge" and which event, with the giving of notice or the passage of
time or both, would constitute an Event of Default under this Indenture,
the Trustee shall not be deemed to have notice of any default or event
unless specifically notified in writing of such event by the Company or the
Holders of not less than 25% of the Outstanding Securities; as used herein,
52
the term "actual knowledge" means the actual fact or statement of knowing,
without any duty to make any investigation with regard thereto.
Section 8.03. Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or its affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b)
and 311. For purposes of Trust Indenture Act Section 311(b)(4) and (6), the
following terms are defined as follows:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, xxxx of exchange, acceptance
or obligation which is made, drawn, negotiated or incurred by the Company for
the purpose of financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating or
incurring of the draft, xxxx of exchange, acceptance or obligation.
Section 8.04. Trustee's Disclaimer. The recitals contained herein and in
the Securities (except the Trustee's certificate of authentication) and the
Guarantees shall be taken as statements of the Company or the Guarantor, as the
case may be, and not of the Trustee and the Trustee assumes no responsibility
for the correctness of the same. Neither the Trustee nor any of its agents makes
any representation as to the validity or adequacy of this Indenture or the
Securities and shall be accountable for the Company's use or application of the
proceeds from the Securities.
Section 8.05. Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the Corporate Trust
Department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if any
Unregistered Securities of such series are then outstanding, to the Holders
thereof,
53
by publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized Newspaper in
London and (ii) to all Holders of Securities of such series in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing or publication of
such notice; provided, however, that, except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
Section 8.06. Reports by Trustee to Holders. Within 60 days after each
July __, beginning with July __, 199_, the Trustee shall mail to each Holder as
and to the extent provided in Trust Indenture Act Section 313(c) a brief report
dated as of such July __, if required by Trust Indenture Act Section 313(a).
Section 8.07. Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing from time to time
for its services. The compensation of the Trustee shall not be limited by any
law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents,
counsel and other persons not regularly in its employ.
The Company and Guarantor shall indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it without
negligence or willful misconduct on its part arising out of or in connection
with the acceptance or administration of this Indenture and the Securities or
the issuance of the Securities or of series thereof or the trusts hereunder and
the performance of duties under this Indenture and the Securities, including the
costs and expenses of defending itself against or investigating any claim or
liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers or
duties under this Indenture and the Securities.
The obligations of the Company and the Guarantor under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the rejection or
termination of this Indenture under bankruptcy law. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property
and funds held or collected
54
by the Trustee as such, except funds held in trust for the benefit of the
Holders of particular Securities or coupons, and the Securities are hereby
subordinated to such senior claim. If the Trustee renders services and incurs
expenses following an Event of Default under Section 7.01(d) or Section 7.01(e)
hereof, the parties hereto and the holders by their acceptance of the Securities
hereby agree that such expenses are intended to constitute expenses of
administration under any bankruptcy law.
The provisions of this Section shall survive the termination of this
Indenture, and the resignation or removal of the Trustee, and any defeasance
pursuant to Article 9.
Section 8.08. Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and appointment
of a successor Trustee as Trustee with respect to the Securities of any series
shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 8.08.
The Trustee may resign as Trustee with respect to the Securities of any
series at any time by so notifying the Company and the Guarantor in writing. The
Holders of a majority in principal amount of the outstanding Securities of any
series may remove the Trustee as Trustee with respect to the Securities of such
series by so notifying the Trustee in writing and may appoint a successor
Trustee with respect thereto with the consent of the Company and the Guarantor.
The Company may remove the Trustee as Trustee with respect to the Securities of
any series if: (i) the Trustee is no longer eligible under Section 8.10 of this
Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the outstanding Securities of such series may appoint a successor
Trustee in respect of such Securities to replace the successor Trustee appointed
by the Company. If the successor Trustee with respect to the Securities of any
series does not deliver its written acceptance required by the next succeeding
paragraph of this Section 8.08 within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the
55
outstanding Securities of such series may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after the delivery of such written acceptance, subject
to the lien provided for in Section 8.07, (i) the retiring Trustee shall
transfer all property held by it as Trustee in respect of the Securities of such
series to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee in respect of the Securities of such series shall become effective and
(iii) the successor Trustee shall have all the rights, powers and duties of the
Trustee in respect of the Securities of such series under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder of
Securities of such series.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
The Company shall give notice of any resignation and any removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee in respect of the Securities of such series to all Holders of
Securities of such series. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the Securities
of any series pursuant to this Section 8.08, the Company's obligations under
Section 8.07 shall continue for the benefit of the retiring Trustee.
Section 8.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
Section 8.10. Eligibility. This Indenture shall always have a Trustee who
satisfies the requirements of Trust Indenture Act Section 310(a). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition.
56
Section 8.11. Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law and except for money held in
trust under Article 9 of this Indenture.
ARTICLE 9
Discharge of Indenture
Section 9.01. Defeasance Within One Year of Payment. Except as otherwise
provided in this Section 9.01, the Company may terminate its obligations under
the Securities of any series and this Indenture with respect to Securities of
such series and the Guarantor may terminate its obligations under its Guarantee
of Securities of any series and this Indenture with respect to Securities of
such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of
such series that have been replaced or Securities of such series that are
paid pursuant to Section 5.01 or Securities of such series for whose
payment money or securities have theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 9.05) have been
delivered to the Trustee for cancellation and the Company or the Guarantor
has paid all sums payable hereunder; or
(ii) the Securities of such series mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, the
Company or the Guarantor irrevocably deposits in trust with the Trustee, as
trust funds solely for the benefit of the Holders of such Securities for
that purpose, money or U.S. Government Obligations or a combination thereof
sufficient (unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee), without
consideration of any reinvestment, to pay Principal of and interest on the
Securities of such series to maturity or redemption, as the case may be,
and to pay all other sums payable hereunder, and the Company or the
Guarantor delivers to the Trustee an Officers' Certificate and an Opinion
of Counsel, in each case stating that all
57
conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture with respect to the Securities of such series
have been complied with.
With respect to the foregoing clause (i), only the Company's obligations
under Section 8.07 in respect of the Securities of such series shall survive.
With respect to the foregoing clause (ii), only the Company's obligations in
Sections 2.02 through 2.12, 5.02, 8.07, 8.08 and 9.05 in respect of the
Securities of such series shall survive until such Securities of such series are
no longer outstanding. Thereafter, only the Company's obligations in Sections
8.07 and 9.05 in respect of the Securities of such series shall survive. After
any such irrevocable deposit, the Trustee upon request shall acknowledge in
writing (i) the discharge of the Company's obligations under the Securities of
such series and this Indenture with respect to the Securities of such series
except for those surviving obligations specified above and (ii) the discharge of
the Guarantor's obligations under its Guarantee of Securities of any series and
this Indenture with respect to Securities of such series.
Section 9.02. Defeasance. Except as provided below, (i) the Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series, (ii) the Guarantor will be discharged
from any and all obligations in respect of the Guarantees and (iii) the
provisions of this Indenture will no longer be in effect with respect to the
Securities of such series and the Guarantees (and the Trustee, at the expense of
the Company and the Guarantor, shall execute proper instruments acknowledging
the same); provided that the following conditions shall have been satisfied:
(A) the Company or the Guarantor has irrevocably deposited in trust
with the Trustee as trust funds solely for the benefit of the Holders of
the Securities of such series, for payment of the Principal of and interest
on the Securities of such series, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of money,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee) without consideration of any reinvestment and after payment of all
federal, state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, to pay and discharge the Principal of and
accrued interest on the outstanding Securities of such series to maturity
or earlier redemption (irrevocably provided for under arrangements
satisfactory to the Trustee), as the case may be;
58
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company or the Guarantor is a party or by which
either or both are bound;
(C) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(D) the Company or the Guarantor shall have delivered to the Trustee
(1) either (x) a ruling directed to the Trustee received from the Internal
Revenue Service to the effect that the Holders of the Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of the exercise of the option under this Section 9.02
and will be subject to federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred or (y) an Opinion of Counsel to the
same effect as the ruling described in clause (x) above and (2) an Opinion
of Counsel to the effect that the Holders of the Securities of such series
have a valid security interest in the trust funds subject to no prior liens
under the UCC; and
(E) the Company or the Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating that
all conditions precedent provided for herein relating to the defeasance
contemplated by this Section 9.02 of the Securities of such series have
been complied with.
The Company's obligations in Sections 2.02 through 2.12, 5.02, 8.07, 8.08
and 9.05 with respect to the Securities of such series shall survive until such
Securities are no longer outstanding. Thereafter, only the Company's obligations
in Sections 8.07 and 9.05 shall survive.
Section 9.03. Covenant Defeasance. The Company may omit to comply with
any term, provision or condition set forth in Sections 5.03, 5.04 or 5.05 (or
any other specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.03 which may by its
terms be defeased pursuant to this Section 9.03), and such omission shall be
deemed not to be an Event of Default under clauses (c) or (f) of Section 7.01,
with respect to the outstanding Securities of a series if:
(i) the Company or the Guarantor has irrevocably deposited in trust
with the Trustee as trust funds solely for the benefit of the Holders of
59
the Securities of such series, for payment of the Principal of and
interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount sufficient
(unless such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) without consideration of
any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to
pay and discharge the Principal of and interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the case
may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company or the Guarantor is a party or by which
either or both are bound;
(iii) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(iv) the Company or the Guarantor has delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the Securities of such
series have a valid security interest in the trust funds subject to no
prior liens under the UCC and such Holders will not recognize income, gain
or loss for federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred; and
(v) the Company or the Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating that
all conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 9.03 of the Securities of such
series have been complied with.
Section 9.04. Application of Trust Money. Subject to Section 9.05, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 9.01, 9.02 or 9.03, as the case may be, in
respect of the Securities of any series and shall apply the deposited money and
the proceeds from deposited U.S. Government Obligations in accordance with the
Securities of such series and this Indenture to the payment of
60
Principal of and interest on the Securities of such series; but such money need
not be segregated from other funds except to the extent required by law.
Section 9.05. Repayment to Company. Subject to Sections 8.07, 9.01, 9.02
and 9.03, the Trustee and the Paying Agent shall promptly pay to the Company
upon request set forth in an Officers' Certificate any money held by them at any
time and not required to make payments hereunder and thereupon shall be relieved
from all liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Company upon written request any money held by them and
required to make payments hereunder under this Indenture that remains unclaimed
for two years; provided that the Trustee or such Paying Agent before being
required to make any payment may cause to be published at the expense of the
Company once in an Authorized Newspaper in The City of New York or with respect
to any Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits in an Authorized Newspaper in
London or mail to each Holder entitled to such money at such Holder's address
(as set forth in the Security Register) notice that such money remains unclaimed
and that after a date specified therein (which shall be at least 30 days from
the date of such publication or mailing) any unclaimed balance of such money
then remaining will be repaid to the Company. After payment to the Company,
Holders entitled to such money must look to the Company or the Guarantor for
payment as general creditors unless an applicable law designates another Person,
and all liability of the Trustee and such Paying Agent with respect to such
money shall cease.
ARTICLE 10
Amendments, Supplements and Waivers
Section 10.01. Without Consent of Holders. The Company, the Guarantor and
the Trustee may amend or supplement this Indenture, the Securities of any series
or the Guarantees without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements shall not materially and
adversely affect the interests of the Holders;
(2) to comply with Article 6;
61
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of any
series, the coupons appertaining to such Securities as permitted by Section
2.03 or the Guarantees;
(6) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose; and
(7) to make any change that does not materially and adversely affect
the rights of any Holder.
Section 10.02. With Consent of Holders. Subject to Sections 7.04 and
7.07, without prior notice to any Holders, the Company, the Guarantor and the
Trustee may amend this Indenture, the Securities of any series and the
Guarantees with the written consent of the Holders of a majority in principal
amount of the outstanding Securities of all series affected by such supplemental
indenture (all such series voting as one class), and the Holders of a majority
in principal amount of the outstanding Securities of all series affected thereby
(all such series voting as one class) by written notice to the Trustee may waive
future compliance by the Company with any provision of this Indenture or the
Securities of such series.
Notwithstanding the provisions of this Section 10.02, without the consent
of each Holder affected thereby, an amendment or waiver, including a waiver
pursuant to Section 7.04, may not:
(i) extend the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security,
or reduce the Principal amount thereof or the rate of interest thereon
(including any amount in respect of original issue discount), or any
premium payable with respect thereto, or adversely affect the rights of
such Holder under any mandatory redemption or repurchase provision or any
right of redemption or repurchase at the option of such Holder, or reduce
the amount of the Principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 7.02 or the amount thereof provable in bankruptcy, or
62
change any place of payment where, or the currency in which, any Security
or any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the due
date therefor;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required
for any such supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture;
(iii) waive a Default in the payment of Principal of or interest on
any Security of such Holder; or
(iv) modify any of the provisions of this Section 10.02, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of Holders of Securities of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or of the coupons appertaining to such
Securities.
It shall not be necessary for the consent of any Holder under this Section
10.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 10.02 becomes
effective, the Company shall give to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.
Section 10.03 Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder or
63
subsequent Holder may revoke the consent as to its Security or portion of its
Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective with
respect to any Securities affected thereby on receipt by the Trustee of written
consents from the requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date (which
may be not less than 10 nor more than 60 days prior to the solicitation of
consents) for the purpose of determining the Holders of the Securities of any
series affected entitled to consent to any amendment, supplement or waiver. If a
record date is fixed, then, notwithstanding the immediately preceding paragraph,
those Persons who were such Holders at such record date (or their duly
designated proxies) and only those Persons shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be such Holders after such record date.
No such consent shall be valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver becomes effective with respect to
the Securities of any series affected thereby, it shall bind every Holder of
such Securities unless it is of the type described in any of clauses (i) through
(iv) of Section 10.02. In case of an amendment or waiver of the type described
in clauses (i) through (iv) of Section 10.02, the amendment or waiver shall bind
each such Holder who has consented to it and every subsequent Holder of a
Security that evidences the same indebtedness as the Security of the consenting
Holder.
Section 10.04. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may require
the Holder thereof to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security of
such series thereafter authenticated. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security of the same series and tenor that
reflects the changed terms.
Section 10.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 10 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid
64
and binding obligation of the Company and the Guarantor, enforceable against the
Company and the Guarantor in accordance with its terms, subject to customary
exceptions. Subject to the preceding sentence, the Trustee shall sign such
amendment, supplement or waiver if the same does not adversely affect the rights
of the Trustee. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 10.06. Conformity with Trust Indenture. Every supplemental
indenture executed pursuant to this Article 10 shall conform to the requirements
of the Trust Indenture Act as then in effect.
ARTICLE 11
Miscellaneous
Section 11.01. Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
Section 11.02. Notices. Any notice or communication shall be sufficiently
given if written and if delivered in person when received or if mailed by
certified first class mail, return receipt requested, 5 days after mailing, or
as between the Company and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:
if to the Company: Xxx XxxxxxxXxxxxx Xxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Treasurer
if to the Guarantor: Xxx XxxxxxxXxxxxx Xxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Treasurer
if to the Trustee: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust
65
The Company or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication shall be sufficiently given to Holders of any
Unregistered Securities, by publication at least once in an Authorized Newspaper
in The City of New York, or with respect to any Security the interest on which
is based on the offered quotations in the interbank Eurodollar market for dollar
deposits at least once in an Authorized Newspaper in London, and by mailing to
the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as
were so furnished to the Trustee and to Holders of Registered Securities by
mailing to such Holders at their addresses as they shall appear on the Security
Register. Notice mailed shall be sufficiently given if so mailed within the time
prescribed. Copies of any such communication or notice to a Holder shall also be
mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. Except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 11.02, it is duly given, whether or not the
addressee receives it.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case it shall be impracticable to give notice as herein contemplated,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 11.03. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company or the Guarantor to the Trustee to take
any action under this Indenture, the Company or the Guarantor shall furnish to
the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
66
(ii) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in such
certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
Section 11.05. Evidence of Ownership. The Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the Trustee may deem and
treat the Holder of any Unregistered Security and the Holder of any coupon as
the absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes, and neither
the Company, the Guarantor, the Trustee, nor any agent of the Company, the
Guarantor or the Trustee shall be affected by any notice to the contrary. The
fact of the holding by any Holder of an Unregistered Security, and the
identifying number of such Security and the date of his holding the same, may be
proved by the production of such Security or by a certificate executed by any
trust company, bank, banker or recognized securities dealer wherever situated
satisfactory to the Trustee, if such certificate shall be deemed by the Trustee
to be satisfactory. Each such certificate shall be dated and shall state that on
the date thereof a Security bearing a specified identifying number was deposited
with or exhibited to such trust company, bank, banker or recognized securities
dealer by the person named in such certificate. Any such certificate may be
issued in respect of one or more
67
Unregistered Securities specified therein. The holding by the person named in
any such certificate of any Unregistered Securities specified therein shall be
presumed to continue for a period of one year from the date of such certificate
unless at the time of any determination of such holding (1) another certificate
bearing a later date issued in respect of the same Securities shall be produced
or (2) the Security specified in such certificate shall be produced by some
other Person, or (3) the Security specified in such certificate shall have
ceased to be outstanding. Subject to Article 8, the fact and date of the
execution of any such instrument and the amount and numbers of Securities held
by the Person so executing such instrument may also be proven in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in
any other manner which the Trustee may deem sufficient.
The Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may deem and treat the person in whose name any
Registered Security shall be registered upon the Security Register for such
series as the absolute owner of such Registered Security (whether or not such
Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the Principal of and, subject to the provisions of this Indenture,
interest on such Registered Security and for all other purposes; and neither the
Company, the Guarantor nor the Trustee nor any agent of the Company, the
Guarantor or the Trustee shall be affected by any notice to the contrary.
Section 11.06. Rules by Trustee, Paying Agent or Registrar. The Trustee may
make reasonable rules for action by or at a meeting of Holders. The Paying Agent
or Registrar may make reasonable rules for its functions.
Section 11.07. Payment Date Other than a Business Day. If any date for
payment of Principal or interest on any Security shall not be a Business Day at
any place of payment, then payment of Principal of or interest on such Security,
as the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect
as if made on such date and no interest shall accrue in respect of such payment
for the period from and after such date.
Section 11.08. Governing Law. The laws of the State of New York shall
govern this Indenture, the Securities and the Guarantees.
Section 11.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
68
agreement of the Company or any Subsidiary of the Company. Any such indenture or
agreement may not be used to interpret this Indenture.
Section 11.10. Successors. All agreements of the Company and the Guarantor
in this Indenture and under or with respect to the Securities and the
Guarantees, as the case may be, shall bind the respective successors of each of
the Company and the Guarantor. All agreements of the Trustee in this Indenture
shall bind its successors.
Section 11.11. Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 11.12. Severability. In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 11.13. Table of Contents, Headings, Etc. The Table of Contents and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms and provisions hereof.
Section 11.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, in any Security or any coupons appertaining thereto or
Guarantee, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer, director or employee, as such, of the Company, the
Guarantor or of any successor thereto, either directly or through the Company,
the Guarantor or any successor thereto, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the coupons appertaining
thereto and the related Guarantee by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto and the related Guarantee.
Section 11.15. Judgment Currency. The Company and the Guarantor agree, to
the fullest extent that each may effectively do so under applicable law, that
(a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the Principal of or interest on the Securities
of
69
any series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
day on which final unappealable judgment is entered, unless such day is not a
Business Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the Business Day preceding the day on
which final unappealable judgment is entered and (b) the obligations of each
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture.
70
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
The ServiceMaster Company
Limited Partnership,
as the Company
By ServiceMaster Management
Corporation,
its General Partner
By:
-----------------------------------
Name:
Title:
ServiceMaster Limited Partnership,
as the Guarantor
By ServiceMaster Management
Corporation,
its General Partner
By:
-----------------------------------
Name:
Title:
Xxxxxx Trust and Savings Bank,
as Trustee
By:
-----------------------------------
Name:
Title:
00
XXXXX XX XXXXXXXX )
)
COUNTY OF ___________ )
BEFORE ME, the undersigned authority, on this __ day of July, 1997,
personally appeared ____________, ____________ of ServiceMaster Management
Corporation, the general partner of The ServiceMaster Company Limited
Partnership, a Delaware limited partnership (the "Company"), known to me (or
proved to me by introduction upon the oath of a person known to me) to be the
person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she executed the same as the act of such general
partner on behalf of the Company for the purposes and consideration herein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS ____ DAY OF JULY, 1997.
(SEAL)
____________________________________
NOTARY PUBLIC, STATE OF ILLINOIS
Print Name:_________________________
Commission Expires:_________________
STATE OF ILLINOIS )
)
COUNTY OF ___________ )
BEFORE ME, the undersigned authority, on this _______ day of July, 1997,
personally appeared _________________, _______________ of ServiceMaster
Management Corporation, the general partner of ServiceMaster Limited
Partnership, a Delaware limited partnership (the "Guarantor"), known to me (or
proved to me by introduction upon the oath of a person known to me) to be the
person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she executed the same as the act of such general
partner on behalf of the Guarantor for the purposes and consideration herein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ DAY OF JULY, 1997.
(SEAL)
____________________________________
NOTARY PUBLIC, STATE OF ILLINOIS
Print Name:_________________________
Commission Expires:_________________
72
STATE OF ILLINOIS )
)
COUNTY OF ___________ )
BEFORE ME, the undersigned authority, on this _______ day of July, 1997,
personally appeared _________________, _______________ of Xxxxxx Trust and
Savings Bank, a ________, known to me (or proved to me by introduction upon the
oath of a person known to me) to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that he/she
executed the same as the act of such trust for the purposes and consideration
herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ DAY OF JULY, 1997.
(SEAL)
_____________________________________
NOTARY PUBLIC, STATE OF ILLINOIS
Print Name:___________________________
Commission Expires:__________________
73
[FORM OF FACE OF NOTE]
Exhibit 1
No. $
The ServiceMaster Company
Limited Partnership
% Note
Due
The ServiceMaster Company Limited Partnership, a Delaware limited
partnership (the "Company", which term includes any successor corporation under
the Indenture hereinafter referred to), for value received, hereby promises to
pay to _______________, or registered assigns, at the office or agency of the
Company in New York, New York, the principal sum of _______________ on
_______________, in the coin or currency of the United States, and to pay
interest, semi-annually on _______________, and _______________ of each year,
commencing _______________, on said principal sum at said office or agency, in
like coin or currency, at the rate per annum specified in the title of this
Note, from the _______________ or the _______________, as the case may be, next
preceding the date of this Note to which interest has been paid or duly provided
for, unless the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this Note, or unless no interest
has been paid or duly provided for on these Notes, in which case from
_______________, until payment of said principal sum has been made or duly
provided for; provided, that payment of interest may be made at the option of
the Company by check mailed to the address of the person entitled thereto as
such address shall appear on the Security Register or by wire transfer as
provided in the Indenture. Notwithstanding the foregoing, if the date hereof is
after the first day of _______________ or _______________, as the case may be,
and before the following _______________ or _______________, this Note shall
bear interest from such _______________ or _______________; provided, that if
the Company shall default in the payment of interest due on such _______________
or _______________, then this Note shall bear interest from the next preceding
_______________ or _______________, to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for on these
Notes, from _______________. The interest so payable on any _______________ or
_______________ will, subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, be paid to the person in whose name this Note
is registered at the close of business on _______________ or
_______________, as the case may be, next preceding such _______________ or
_______________, whether or not such day is a Business Day.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, The ServiceMaster Company Limited Partnership has
caused this instrument to be signed manually or by facsimile by its duly
authorized officers.
Dated:
THE SERVICEMASTER COMPANY
LIMITED PARTNERSHIP
By ServiceMaster Management Corporation,
its General Partner
Attest: By
-------------------------------
--------------------------
2
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: Xxxxxx Trust and Savings Bank,
as Trustee
By
---------------------------
Authorized Signatory
3
[FORM OF GUARANTEE]
ServiceMaster Limited Partnership (the "Guarantor") hereby unconditionally
guarantees to the holder of this Note duly authenticated and delivered by the
Trustee, the due and punctual payment of the principal, and premium, if any, of
(including any amount in respect of original issue discount), and interest
(including, in the event the Company defaults on a payment of interest on the
Securities, defaulted interest plus (to the extent lawful) any interest payable
on the defaulted interest), if any (together with any additional amounts payable
pursuant to the terms of this Note), on this Note and the due and punctual
payment of the sinking fund payments, if any, and analogous obligations, if any,
provided for pursuant to the terms of this Note, when and as the same shall
become due and payable, whether at maturity or upon redemption or upon
declaration of acceleration or otherwise according to the terms of this Note and
of the Indenture. In case of default by the Company in the payment of any such
principal (including any amount in respect of original issue discount), interest
(including, in the event the Company defaults on a payment of interest on the
Securities, defaulted interest plus (to the extent lawful) any interest payable
on the defaulted interest), if any (together with any additional amounts payable
pursuant to the terms of this Note), sinking fund payment, or analogous
obligation, the Guarantor agrees duly and punctually to pay the same. The
Guarantor hereby agrees that its obligations hereunder shall be absolute and
unconditional irrespective of any extension of the time for payment of this
Note, any modification of this Note, any invalidity, irregularity or
unenforceability of this Note or the Indenture, any failure to enforce the same
or any waiver, modification or indulgence granted to the Company with respect
thereto by the holder of this Note or the Trustee, or any other circumstances
which may otherwise constitute a legal or equitable discharge of a surety or
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a demand or proceeding first against the
Company, protest or notice with respect to this Note or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this guarantee
will not be discharged as to this Note except by payment in full of the
principal of (including any amount payable in respect of original issue
discount), and interest (including, in the event the Company defaults on a
payment of interest on the Securities, defaulted interest plus (to the extent
lawful) any interest payable on the defaulted interest), if any (together with
any additional amounts payable pursuant to the terms of this Note), thereon.
Upon making any payment hereunder, the Guarantor shall be subrogated to the
rights of a Holder against the Company with respect to such payment; provided
that the Guarantor shall not enforce any payment by way of subrogation
4
until all amounts of Principal of and interest on the Securities and all other
amounts payable by the Company under this Indenture have been paid in full.
This guarantee shall not be valid or become obligatory for any purpose with
respect to this Note until the certificate of authentication on this Note shall
have been signed by the Trustee.
IN WITNESS WHEREOF, ServiceMaster Limited Partnership has caused this
guarantee to be signed manually or by facsimile by its duly authorized officers.
SERVICEMASTER LIMITED PARTNERSHIP
By ServiceMaster Management Corporation,
its General Partner
By ________________________________
By ________________________________
5
REVERSE OF NOTE
The ServiceMaster Company
Limited Partnership
% Note
Due
This Note is one of a duly authorized issue of debentures, notes, bonds or
other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of July _____ , 1997 (herein called
the "Indenture"), duly executed and delivered by the Company to _____________ ,
as Trustee (herein called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. The Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase or analogous funds (if
any) and may otherwise vary as in the Indenture provided. This Note is one of a
series designated as the % Notes Due of the Company, limited in aggregate
principal amount to $ .
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal and, to the extent
lawful, on overdue installments of interest at the rate per annum borne by this
Note. If a payment date is not a Business Day as defined in the Indenture at a
place of payment, payment may be made at that place on the next succeeding day
that is a Business Day, and no interest shall accrue for the intervening
period.
In case an Event of Default as defined in the Indenture, with respect to
the % Notes Due , shall have occurred and be continuing, the principal
hereof and the interest accrued hereon, if any, 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 which provide that, without prior notice
to any Holders, the Company and the Trustee may amend the Indenture and the
Securities of any series with the written consent of the Holders of a majority
in
6
aggregate principal amount of the outstanding Securities of all series affected
(all such series voting as one class), and the Holders of a majority in
aggregate principal amount of the outstanding Securities of all series to be
affected (all such series voting as one class) by written notice to the Trustee
may waive future compliance by the Company with any provision of the Indenture
or the Securities of such series; provided that, without the consent of each
Holder of the Securities of each series affected thereby, an amendment or
waiver, including a waiver of past defaults, may not: (i) extend the stated
maturity of the principal of, or any sinking fund obligation or any installment
of interest on, such Holder's Security, or reduce the principal amount thereof
or the rate of interest thereon (including any amount in respect of original
issue discount), or any premium payable with respect thereto, or adversely
affect the rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of such Holder,
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity or the amount
thereof provable in bankruptcy, or change any place of payment where, or the
currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the due date therefor; (ii) reduce the percentage in
principal amount of outstanding Securities of the relevant series the consent of
whose Holders is required for any such supplemental indenture, for any waiver of
compliance with certain provisions of the Indenture or certain Defaults and
their consequences provided for in the Indenture; (iii) waive a Default in the
payment of principal of or interest on any Security of such Holder; or (iv)
modify any of the provisions of the Indenture governing supplemental indentures
with the consent of Securityholders except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Security affected
thereby.
It is also provided in the Indenture that, subject to certain conditions,
the Holders of at least a majority in aggregate principal amount of the
outstanding Securities of all series affected (voting as a single class), by
notice to the Trustee, may waive an existing Default or Event of Default with
respect to the Securities of such series and its consequences, except a Default
in the payment of principal of or interest on any Security or in respect of a
covenant or provision of the Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series arising therefrom shall be deemed
to have been cured, for every purpose of the Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
7
The Indenture provides that a series of Securities may include one or more
tranches (each a "tranche") of Securities, including Securities issued in a
periodic offering. The Securities of different tranches may have one or more
different terms, including authentication dates and public offering prices, but
all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding any
other provision of the Indenture, subject to certain exceptions, with respect to
sections of the Indenture concerning the execution, authentication and terms of
the Securities, redemption of the Securities, Events of Default of the
Securities, defeasance of the Securities and amendment of the Indenture, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to a board resolution or a supplemental
indenture establishing such series or tranche.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note in the manner, at the place, at the respective times, at the rate
and in the coin or currency herein prescribed.
The Notes are issuable initially only in registered form without coupons in
denominations of $ and any multiple of $ at the office or agency of the
Company in the Borough of Manhattan, The City of New York, and in the manner and
subject to the limitations provided in the Indenture, but, without the payment
of any service charge, Notes may be exchanged for a like aggregate principal
amount of Notes of other authorized denominations.
[The Notes may be redeemed at the option of the Company, as a whole, or
from time to time in part, on any date [after [_______________] and] prior to
maturity, upon mailing a notice of such redemption not less than 30 nor more
than 60 days prior to the date fixed for redemption to the Holders of Notes at
their last registered addresses, all as further provided in the Indenture, at
the following optional redemption prices (expressed in percentages of the
principal amount) together in each case with accrued interest to the date fixed
for redemption:
8
If redeemed during the twelve-month period beginning ,
Year Percentage Year Percentage
--------------------------------------------------------------
]
[As and for a sinking fund for the retirement of the Notes and so long as
any of the Notes remain outstanding and unpaid, the Company will pay to the
Trustee in cash [(subject to the right to deliver certain Notes in credit
therefor as in the Indenture provided)], on or before and on or before
in each year thereafter to and including an amount sufficient to
redeem $_______________ principal amount of the Notes (or such lesser amount
equal to the principal amount then Outstanding) at 100% of the principal amount
thereof (the "sinking fund redemption price"), together with accrued interest
to the date fixed for redemption. The Notes shall be redeemed through the
operation of the sinking fund as herein provided on and on each
thereafter to and including on notice as set forth in the Indenture.
[At its option the Company may pay into the sinking fund for the retirement of
Notes, in cash except as provided in the Indenture, on or before and on
or before in each year thereafterto and including an amount
sufficient to redeem an additional principal amount of Notes up to but not to
exceed $______________ at the sinking fund redemption price. To the extent that
the right to such optional sinking fund payment is not exercised in any year, it
shall not be cumulative or carried forward to any subsequent year.] The Trustee
shall select Notes for redemption, by prorating, as nearly as may be, the
principal amount of Notes to be redeemed among the Holders of Notes. The Trustee
shall make such adjustments, reallocations and eliminations to such proration as
it shall deem proper to the end that the principal amount of Notes so redeemed
shall be $1,000 or a multiple thereof, by increasing or decreasing or
eliminating the amount which would be allocable to any Holder on the basis of
exact proration by an amount not exceeding $1,000. The Trustee in its discretion
may determine the particular Notes (if there are more than one) registered in
the name of any Holder which are to be redeemed, in whole or in part.]
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the
9
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
The Company, the Guarantor, the Trustee and any agent of the Company or the
Trustee may deem and treat the registered Holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and, subject to the
provisions hereof, interest hereon, and for all other purposes, and neither the
Company nor the Guarantor nor the Trustee nor any agent of the Company, the
Guarantor or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company or the Guarantor in the Indenture or any indenture supplemental thereto
or in any Note, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present, or future, of the Company or the Guarantor or any successor corporation
of either of them, either directly or through the Company, the Guarantor or any
successor corporation of either of them, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
10
Exhibit 2
[FORM OF GUARANTEE]
ServiceMaster Limited Partnership (the "Guarantor") hereby unconditionally
guarantees to the holder of this [__________] duly authenticated and delivered
by the Trustee, the due and punctual payment of the principal, and premium, if
any, of (including any amount in respect of original issue discount), and
interest (including, in the event the Company defaults on a payment of interest
on the Securities, defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest), if any (together with any additional amounts
payable pursuant to the terms of this [__________]), on this [__________] and
the due and punctual payment of the sinking fund payments, if any, and analogous
obligations, if any, provided for pursuant to the terms of this [__________],
when and as the same shall become due and payable, whether at maturity or upon
redemption or upon declaration of acceleration or otherwise according to the
terms of this [__________] and of the Indenture. In case of default by the
Company in the payment of any such principal (including any amount in respect of
original issue discount), premium, if any, interest (including, in the event the
Company defaults on a payment of interest on the Securities, defaulted interest
plus (to the extent lawful) any interest payable on the defaulted interest), if
any (together with any additional amounts payable pursuant to the terms of this
[__________]), sinking fund payment, or analogous obligation, the Guarantor
agrees duly and punctually to pay the same. The Guarantor hereby agrees that
its obligations hereunder shall be absolute and unconditional irrespective of
any extension of the time for payment of this [__________], any modification of
this [__________], any invalidity, irregularity or unenforceability of the
Indenture, any failure to enforce the same or any waiver, modification or
indulgence granted to the Company with respect thereto by the holder of this
[__________] or the Trustee, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a demand or proceeding first against the Company, protest or
notice with respect to this [__________] or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this guarantee will not be
discharged as to this [__________] except by payment in full of the principal of
(including any amount payable in respect or original issue discount), and
interest (including, in the event the Company defaults on a payment of interest
on the Securities, defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest), if any (together with any additional amounts
payable pursuant to the terms of this [__________]), thereon.
Upon making any payment hereunder, the Guarantor shall be subrogated to
the rights of a Holder against the Company with respect to such payment;
provided that the Guarantor shall not enforce any payment by way of subrogation
until all amounts of Principal of and interest on the Securities and all other
amounts payable by the Company under this Indenture have been paid in full.
This guarantee shall not be valid or become obligatory for any purpose
with respect to this [________] until the certificate of authentication on this
[________] shall have been signed by the Trustee.
IN WITNESS WHEREOF, ServiceMaster Limited Partnership has caused this
guarantee to be signed by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
SERVICEMASTER LIMITED PARTNERSHIP
By ServiceMaster Management Corporation,
its General Partner
By
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2
