Exhibit 4.17
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TECHNICAL OLYMPIC USA, INC.,
as Issuer
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FORM OF SENIOR SUBORDINATED INDENTURE
Dated as of ____________, 2005
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[ ],
as Trustee
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This INDENTURE dated as of _________, 2005, is by and among Technical
Olympic USA, Inc., a Delaware corporation (the "Company"), the Subsidiary
Guarantors (as defined) parties hereto, and __________, a ______________, as
trustee (the "Trustee").
The Company has duly authorized the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "Securities") up to such principal amount or amounts as
may from time to time be authorized in accordance with the terms of this
Indenture. The Company, the Subsidiary Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders of the Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
"Affiliate" of any specified Person means:
(1) any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person, or
(2) any other Person who is a director or executive officer of:
(a) such specified Person,
(b) any Subsidiary of such specified Person, or
(c) any Person described in clause (1) above.
For the purposes of this definition, "control," when used with respect to any
Person, means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the preceding.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"Asset Sale" means any sale, lease, transfer, issuance or other
disposition (or series of related sales, leases, transfers, issuances or
dispositions) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "disposition"), of
(1) any shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares), or
(2) any other Property of the Company or any Restricted Subsidiary
outside of the ordinary course of business of the Company or such Restricted
Subsidiary,
other than, in the case of clause (1) or (2) above,
(a) any disposition by a Restricted Subsidiary to the Company or
by the Company or a Restricted Subsidiary to a Wholly Owned Restricted
Subsidiary,
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(b) any disposition that constitutes a Permitted Investment, a
"restricted payment" (to the extent that such term is defined in the
applicable supplemental indenture) or as permitted by the covenants
contained herein or in the applicable supplemental indenture as to each
Series of Securities,
(c) any disposition effected in compliance with Section 5.01(a),
(d) any disposition of cash or Cash Equivalents, and
(e) any disposition or series of related dispositions of Property
with an aggregate Fair Market Value, and for net proceeds, of less than
$1.0 million.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at any date of determination,
(1) if such Sale and Leaseback Transaction is a Capital Lease
Obligation, the amount of Debt represented thereby according to the definition
of "Capital Lease Obligations," and
(2) in all other instances, the greater of:
(a) the Fair Market Value of the Property subject to such Sale
and Leaseback Transaction, and
(b) the present value (discounted at the interest rate borne by
the Securities, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale and Leaseback Transaction (including any period for which such lease
has been extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Board of Directors" means the board of directors of the Company or
any committee thereof authorized with respect to any particular matter to
exercise the power of the Board of Directors of the Company.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the applicable Person to have been duly
adopted by the board of directors of such Person and to be in full force and
effect on the date of such certification, and delivered to the Trustee for the
Securities of any Series.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligations" means any obligation under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP; and the amount of Debt represented by such obligation shall be the
capitalized amount of such obligations determined in accordance with GAAP; and
the Stated Maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty.
"Capital Stock" means, with respect to any Person, any shares or other
equivalents (however designated) of any class of corporate stock or partnership
interests or any other participations, rights, warrants, options or other
interests in the nature of an equity interest in such Person, including
Preferred Stock, but excluding any debt security convertible or exchangeable
into such equity interest.
"Cash Equivalents" means
(1) securities issued or directly and fully guaranteed or insured by
the United States Government or any agency or instrumentality thereof (provided
that the full faith and credit of the United States is pledged in support
thereof), having maturities of not more than one year from the date of
acquisition;
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(2) marketable general obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof (provided that the full faith and credit of such state is pledged in
support thereof) and, at the time of acquisition thereof, having credit ratings
of at least AA- (or the equivalent) by S&P and at least Aa3 (or the equivalent)
by Moody's;
(3) certificates of deposit, time deposits, eurodollar time deposits,
overnight bank deposits or bankers' acceptances having maturities of not more
than one year from the date of acquisition thereof issued by any commercial bank
organized in the United States of America or Canada, the long-term debt of which
is rated at the time of acquisition thereof at least AA- (or the equivalent) by
S&P, at least Aa3 (or the equivalent) by Moody's, or 1 by the NAIC and having
combined capital and surplus in excess of $500.0 million;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (1), (2) and (3) entered
into with any bank meeting the qualifications specified in clause (3) above;
(5) commercial paper rated at the time of acquisition thereof in one
of the two highest categories obtainable from both S&P and Moody's or carrying
an equivalent rating by a nationally recognized rating agency, if both of the
two named rating agencies cease publishing ratings of investments, and in any
case maturing within one year after the date of acquisition thereof; and
(6) interests in any investment company or money market fund
substantially all of the assets of which are of the type specified in clauses
(1) through (5) above.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the U.S. Securities and Exchange Commission.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee of a Series of Securities specified in Section 15.02 or such other
address as to which the Trustee may give notice to the Company.
"Debt" means, with respect to any Person on any date of determination
(without duplication):
(1) the principal of, premium (if any) and any other Obligations in
respect of:
(a) debt of such Person for money borrowed, and
(b) debt evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such Person is responsible or liable;
(2) all Capital Lease Obligations of such Person and Attributable Debt
in respect of Sale and Leaseback Transactions entered into by such Person;
(3) all obligations of such Person issued or assumed as the deferred
purchase price of Property, all conditional sale obligations of such Person and
all obligations of such Person under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(4) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in clauses (1) through (3) above)
entered into in the ordinary course of business of such Person to the extent
such letters of credit are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the third Business Day following
receipt by such Person of a demand for reimbursement following payment on the
letter of credit);
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(5) the amount of all obligations of such Person with respect to the
Repayment of any Disqualified Stock or, with respect to any Subsidiary of such
Person, any Preferred Stock (but excluding, in each case, any accrued
dividends);
(6) all obligations of the type referred to in clauses (1) through (5)
above of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee;
(7) all obligations of the type referred to in clauses (1) through (6)
above of other Persons secured by any Lien on any Property of such Person
(whether or not such obligation is assumed by such Person), the amount of such
obligation being deemed to be the lesser of the Fair Market Value of such
Property or the amount of the obligation so secured; and
(8) to the extent not otherwise included in this definition, Hedging
Obligations of such Person.
The amount of Debt of any Person at any date shall be (x) the accreted value
thereof at such date in the case of any Debt that does not require current
payments of interest, (y) the outstanding balance of all unconditional
obligations as described above at such date and (z) the maximum liability, upon
the occurrence of the contingency giving rise to the obligation, of any
contingent obligations at such date. The amount of Debt represented by a Hedging
Obligation shall be equal to:
(A) zero if such Hedging Obligation has been Incurred pursuant to Debt
under Interest Rate Agreements entered into by the Company or a Subsidiary
Guarantor for the purpose of limiting interest rate risk in the ordinary course
of the financial management of the Company or such Subsidiary Guarantor and not
for speculative purposes, provided to the extent that a supplemental indenture
as to each Series of Securities defines "permitted debt," then the obligations
under such agreements are directly related to payment obligations on Debt which
would be permitted debt, or
(B) the notional amount of such Hedging Obligation if not Incurred
pursuant to (A) above.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Security" means a certificated Security registered in the
name of the Holder thereof and issued in accordance with Section 2.08 except
that such Security shall not bear the Global Security Legend.
"Depositary" means, with respect to the Securities of any Series
issuable or issued in whole or in part in global form, the Person designated as
the Depositary with respect to the Securities of any Series, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provisions of this Indenture.
"Designated Senior Debt" means:
(1) any Senior Debt that has, at the time of determination, an
aggregate principal amount outstanding of at least $25.0 million (including the
amount of all undrawn commitments and matured and contingent reimbursement
obligations pursuant to letters of credit thereunder) that is specifically
designated in the instrument evidencing such Senior Debt and is designated in a
notice delivered by the Company to the holders or a Representative of the
holders of such Senior Debt and in an Officers' Certificate delivered to the
Trustee as "Designated Senior Debt" of the Company for purposes of this
Indenture,
(2) any Senior Debt outstanding under the [Senior Credit Facility],
and
(3) any Senior Debt outstanding under the under any indenture.
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"Disqualified Stock" means any Capital Stock of the Company or any of
its Restricted Subsidiaries that by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable, in either case at
the option of the holder thereof) or otherwise:
(1) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise,
(2) is or may become redeemable or repurchaseable at the option of the
holder thereof, in whole or in part, or
(3) is convertible or exchangeable at the option of the holder thereof
for Debt or other Disqualified Stock,
on or prior to, in the case of clauses (1), (2) or (3), 30 days after the Stated
Maturity of the Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, with respect to any Property, the price
that could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction. Fair Market Value shall be
determined, except as otherwise provided,
(1) if such Property has a Fair Market Value equal to or less than
$50.0 million (or $100.0 million in the case of an Investment made for the
contribution of real property), by any Officer of the Company, or
(2) if such Property has a Fair Market Value in excess of $50.0
million (or $100.0 million in the case of an Investment made for the
contribution of real property), by an Independent Financial Advisor and
evidenced by a written opinion from such Independent Financial Advisor, dated
within 30 days of the relevant transaction.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Global Security Legend" means the legend set forth in Section 2.13,
which is required to be placed on all Global Securities issued under this
Indenture.
"Global Securities" means a Security evidencing all or a part of a
Series of Securities issued to the Depositary for such Series in accordance with
Section 2.03 and bearing the legend set forth in Section 2.13.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt of such other Person (whether arising by virtue of
partnership arrangements or by agreements to purchase assets, goods, securities
or services, to take-or-pay or otherwise), or
(2) entered into for the purpose of assuring in any other manner the
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include:
(a) endorsements for collection or deposit in the ordinary course
of business,
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(b) a contractual commitment by one Person to invest in another
Person for so long as such Investment is reasonably expected to constitute
a Permitted Investment under clause (1) or (2) of the definition of
"Permitted Investment," or
(c) keep-well agreements or agreements to maintain financial
statements.
The term "Guarantee" used as a verb has a corresponding meaning. The term
"Guarantor" shall mean any Person Guaranteeing any obligation.
"Hedging Obligation" of any Person means any obligation of such Person
pursuant to any Interest Rate Agreement.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by merger, conversion, exchange or otherwise),
extend, assume, Guarantee or become liable in respect of such Debt or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Debt or obligation on the balance sheet of such Person (and "Incurrence"
and "Incurred" shall have meanings correlative to the preceding); provided,
however, that a change in GAAP that results in an obligation of such Person that
exists at such time, and is not theretofore classified as Debt, becoming Debt
shall not be deemed an Incurrence of such Debt; provided further, however, that
any Debt or other obligations of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Subsidiary at the time it
becomes a Subsidiary.
"Independent Financial Advisor" means an investment banking firm of
national standing or any third-party appraiser that is determined by the Chief
Executive Officer of the Company to be reasonably competent to issue an opinion
or valuation with respect to the matter for which the Company has engaged it,
provided that such firm or appraiser is not an Affiliate of the Company.
"Indenture" means this instrument, as originally executed or as it may
from time to time be supplemented or amended in accordance with Article 9 and
shall include the forms and terms of particular Series established as
contemplated hereunder.
"Interest Rate Agreement" means, for any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement or
other similar agreement designed to protect against fluctuations in interest
rates.
"Investment" by any Person means any direct or indirect loan (other
than advances to customers in the ordinary course of business that are recorded
as accounts receivable on the balance sheet of such Person), advance or other
extension of credit or capital contribution (by means of transfers of cash or
other Property to others or payments for Property or services for the account or
use of others, or otherwise) to, or Incurrence of a Guarantee of any obligation
of, or purchase or acquisition of Capital Stock, bonds, notes, debentures or
other securities or evidence of Debt (other than endorsements of negotiable
instruments in the ordinary course business) issued by, any other Person.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the Corporate Trust
Office of the Trustee is located, or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Lien" means, with respect to any Property of any Person, any mortgage
or deed of trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, lien, charge, easement (other than any easement not
materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any
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Capital Lease Obligation, conditional sale or other title retention agreement
having substantially the same economic effect as any of the preceding).
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to
the rating agency business thereof.
"Non-Recourse Debt, " with respect to any Person, means Debt of such
Person for which the sole legal recourse for collection of principal and
interest on such Debt is against the specific property identified in the
instruments evidencing or securing such Debt, and such property was acquired
with the proceeds of such Debt, or such Debt was Incurred within 90 days after
the acquisition of such property.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Debt.
"Officer" means the Chief Executive Officer, the President, the Chief
Financial Officer, the Chief Accounting Officer, the Secretary, the Treasurer,
any Senior Vice President or any Vice President of the Company.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers, at least one of whom shall be the principal
executive officer or principal financial officer of such Person, and delivered
to the Trustee.
"Opinion of Counsel" means, with respect to any Person, a written
opinion from legal counsel who is acceptable to the Trustee. The counsel may be
an employee of or counsel to such Person or the Trustee.
"Permitted Business" means the homebuilding and home sales businesses
and any business that is related, ancillary or complementary to the homebuilding
and home sales businesses including origination of residential home loans, title
insurance and reinsurance, and closing and settlement services.
"Permitted Investment" means any Investment by the Company or a
Restricted Subsidiary in:
(1) the Company, any Restricted Subsidiary or any Person that will,
upon the making of such Investment, become a Restricted Subsidiary, provided
that the primary business of such Restricted Subsidiary is a Permitted Business;
(2) any Person if as a result of such Investment such Person is merged
or consolidated with or into, or transfers or conveys all or substantially all
its Property to, the Company or a Restricted Subsidiary, provided that such
Person's primary business is a Permitted Business;
(3) cash or Cash Equivalents;
(4) receivables owing to the Company or a Restricted Subsidiary, if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however, that
such trade terms may include such concessionary trade terms as the Company or
such Restricted Subsidiary deems reasonable under the circumstances;
(5) receivables or loans owing to the Company or a Restricted
Subsidiary made in connection with the sale of any Property otherwise permitted
under this Indenture;
(6) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses for
accounting purposes and that are made in the ordinary course of business;
(7) loans and advances to employees made in the ordinary course of
business of the Company or such Restricted Subsidiary, as the case may be,
provided that such loans and advances do not exceed $7.0 million in the
aggregate at any one time outstanding;
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(8) stock, obligations or other securities received in settlement of
debts created in the ordinary course of business and owing to the Company or a
Restricted Subsidiary or in satisfaction of judgments;
(9) any Person to the extent such Investment represents the non-cash
portion of the consideration received in connection with (a) an Asset Sale or
(b) any disposition of Property not constituting an Asset Sale, provided to the
extent the applicable supplemental indenture as to each Series of Securities
limits or restricts Assets Sales, then such Asset Sale or disposition of
Property was done in compliance with such provision; and
(10) other Investments made for Fair Market Value that do not exceed
$40.0 million in the aggregate outstanding at any one time.
"Permitted Junior Securities" means:
(1) Capital Stock in the Company or any Subsidiary Guarantor of any
Series of Securities; or
(2) debt securities that are subordinated to all Senior Debt and debt
securities that are issued in exchange for Senior Debt to substantially the same
extent as, or to a greater extent than, the Securities and the Subsidiary
Guaranties are subordinated to Senior Debt under this Indenture and have a
Stated Maturity after (and do not provide for scheduled principal payments prior
to) the Stated Maturity of any Senior Debt and any debt securities issued in
exchange for Senior Debt;
provided, however, that, if such Capital Stock or debt securities are
distributed in a bankruptcy or insolvency proceeding, such Capital Stock or debt
securities are distributed pursuant to a plan of reorganization consented to by
each class of Designated Senior Debt.
"Person" means any individual, corporation, company (including any
limited liability company), association, partnership, joint venture, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
the payment of dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such Person, over shares of any
other class of Capital Stock issued by such Person.
"pro forma" means, with respect to any calculation made or required to
be made pursuant to the terms of this Indenture, a calculation performed in
accordance with Article 11 of Regulation S-X promulgated under the Securities
Act, as interpreted in good faith by the Board of Directors after consultation
with the independent certified public accountants of the Company, or otherwise a
calculation made in good faith by the Board of Directors after consultation with
the independent certified public accountants of the Company, as the case may be.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including Capital Stock in, and other securities of, any
other Person. For purposes of any calculation required pursuant to this
Indenture, the value of any Property shall be its Fair Market Value.
"Repay" means, in respect of any Debt, to repay, prepay, repurchase,
redeem, legally defease or otherwise retire such Debt. "Repayment" and "Repaid"
shall have correlative meanings.
"Representative" means the trustee, agent or representative expressly
authorized to act in such capacity, if any, for an issue of Senior Debt.
"Responsible Officer," when used with respect to the Trustee of a
Series of Securities, means any officer within the Corporate Trust Department of
the Trustee (or any successor group of the Trustee) with direct
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responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement relating to Property now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary transfers such Property to another Person,
and the Company or a Restricted Subsidiary leases it from such Person, other
than sale and leaseback transactions done by the Company or a Restricted
Subsidiary in the ordinary course of business.
"S&P" means Standard & Poor's Ratings Services or any successor to the
rating agency business thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Security " or "Securities" has the meaning stated in the second
paragraph of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture; provided, however that if at
any time there is more than one Person acting as Trustee under this instrument,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the second paragraph of this instrument and
shall more particularly mean Securities authenticated and delivered under this
instrument, exclusive, however, of Securities of any Series as to which such
Person is not Trustee.
"Senior Debt" of the Company means all of its Obligations with respect
to Debt, whether outstanding on the issue date of any Series of Securities or
thereafter Incurred, and shall include (i) all obligations for interest accruing
on or after the filing of any petition in bankruptcy or for reorganization
relating to the Company whether or not such post-filing interest is allowed in
such proceeding and (ii) all fees, expenses and indemnities and all other
amounts payable with respect to Debt; provided, however, that Senior Debt shall
not include:
(1) any obligation in respect of the Securities or other Debt of the
Company that is by its terms subordinate or pari passu in right of payment to
the Securities;
(2) any Debt Incurred in violation of the provisions of this
Indenture;
(3) any obligation of the Company to any Subsidiary; or
(4) any obligations with respect to any Capital Stock of the Company.
To the extent that any payment of Senior Debt (whether by or on behalf
of the Company as proceeds of security or enforcement or any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to a trustee, receiver or other similar party under any bankruptcy,
insolvency, receivership or similar law, then if such payment is recovered by,
or paid over to, such trustee, receiver or other similar party, the Senior Debt
or part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred. "Senior Debt" of
any Subsidiary Guarantor has a correlative meaning and shall not include any
obligation of such Subsidiary Guarantor to the Company or any other Subsidiary
of the Company.
"Senior Subordinated Debt" of the Company means the Securities and any
other subordinated Debt of the Company that specifically provides that such Debt
is to rank pari passu with the Securities and is not subordinated by its terms
to any other subordinated Debt or other obligation of the Company which is not
Senior Debt. "Senior Subordinated Debt" of any Subsidiary Guarantor has a
correlative meaning.
"Series" or "Series of Securities" means each Series of unsecured
debentures, notes or other debt instruments of the Company created pursuant to
Sections 2.01 and 2.03 hereof.
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"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Stated Maturity" means, with respect to any Security, the date
specified in such Security as the fixed date on which the payment of principal
of such Security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such Security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subordinated Debt" means any Debt of the Company or any Subsidiary
Guarantor (whether outstanding on the issue date of any Series of Securities or
thereafter Incurred) that is subordinate or junior in right of payment to the
Securities of any Series and any applicable Subsidiary Guaranty pursuant to a
written agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation, company
(including any limited liability company), association, partnership, joint
venture or other business entity of which a majority of the total voting power
of the Voting Stock is at the time owned or controlled, directly or indirectly,
by:
(1) such Person,
(2) such Person and one or more Subsidiaries of such Person, or
(3) one or more Subsidiaries of such Person.
"Subsidiary Guarantor" shall have the meaning set forth in the
applicable supplemental indenture as to each Series of Securities.
"Subsidiary Guaranty" means a Guarantee on the terms set forth in this
Indenture by a Subsidiary Guarantor of the Company's Obligations with respect to
the Securities.
"Surviving Person" means the surviving Person formed by a merger,
consolidation or amalgamation and, for purposes of Section 5.01, a Person to
whom all or substantially all the Property of the Company or a Subsidiary
Guarantor is sold, transferred, assigned, leased, conveyed or otherwise
disposed.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee. "Trustee" shall also mean or
include each Person who is then a trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any Series shall mean the trustee with respect to the Securities of such Series.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that is designated after the issue
date of an Series of Securities as an Unrestricted Subsidiary as permitted or
required pursuant to Section 4.09 and is not thereafter redesignated as a
Restricted Subsidiary as permitted pursuant thereto;
(2) any Subsidiary of an Unrestricted Subsidiary; and
(3) any Subsidiary of the Company or of a Restricted Subsidiary
engaged in the business of originating residential home loans, title insurance
and reinsurance or closing or settlement services.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality
10
thereof) for the payment of which the full faith and credit of the United States
of America is pledged and which are not callable or redeemable at the issuer's
option.
"Voting Stock" of any Person means all classes of Capital Stock of
such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.
"Wholly Owned Restricted Subsidiary" means, at any time, a Restricted
Subsidiary all the Voting Stock of which (except directors' qualifying shares)
is at such time owned, directly or indirectly, by the Company or its other
Wholly Owned Restricted Subsidiaries.
SECTION 1.02 OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Authentication Order"........................................ 2.02
"Benefited Party"............................................. 10.01
"Company"..................................................... Preamble
"Covenant Defeasance"......................................... 8.03
"Event of Default"............................................ 6.01
"Legal Defeasance"............................................ 8.02
"losses"...................................................... 7.07
"mandatory sinking fund payment".............................. 11.01
"optional sinking fund payment"............................... 11.01
"Paying Agent"................................................ 2.04
"Registrar"................................................... 2.04
"Securities".................................................. Preamble
"Security Register"........................................... 2.04
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
(b) The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities and the Subsidiary
Guaranties, if any;
"indenture security holder" means a Holder of Securities;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Securities means the Company, the Subsidiary
Guarantors, if any, and any successor obligor upon the Securities or the
Subsidiary Guaranties.
(c) All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
SECTION 1.04 RULES OF CONSTRUCTION.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined herein has the
meaning assigned to it in accordance with GAAP;
11
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural
include the singular;
(v) all references in this instrument to designated "Articles,"
"Sections" and other subdivisions are to the designated
Articles, Sections and subdivisions of this instrument as
originally executed;
(vi) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
(vii) "including" means "including without limitation";
(viii) provisions apply to successive events and transactions;
and
(ix) references to sections of or rules under the Securities Act,
Exchange Act and TIA shall be deemed to include substitute,
replacement or successor sections or rules adopted by the
Commission from time to time.
ARTICLE 2.
THE SECURITIES
SECTION 2.01 FORM AND DATING.
(a) FORMS GENERALLY. The Securities of each Series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions or in one or more
supplemental indentures hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have imprinted or otherwise reproduced thereon such
legend or legends or endorsements, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of such Securities.
The Securities of each Series shall be dated the date of its authentication. The
Securities shall be in denominations established as contemplated by Section 2.03
or, with respect to the Securities of any Series, if not so established, in
denominations of $1,000 and integral multiples thereof.
SECTION 2.02 EXECUTION AND AUTHENTICATION.
(a) Two Officers shall sign the Securities for the Company by manual
or facsimile signature.
(b) If an Officer whose signature is on a Security no longer holds
that office at the time a Security is authenticated, the Security shall
nevertheless be valid.
(c) A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
(d) The Trustee shall at any time and from time to time, upon a
written order of the Company signed by an Officer (an "Authentication Order"),
authenticate Securities for original issue in the principal amount provided in
the Board Resolution, supplemental indenture hereto or Officers' Certificate.
(e) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An 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 agent. An
authenticating agent has the same rights as an Agent to deal with Holders, the
Company or an Affiliate of the Company.
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. All Securities of a Series shall be identical except as may be
set forth in a Board Resolution, a supplemental indenture hereto or an Officers'
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Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a
Series to be issued from time to time, the Board Resolution, supplemental
indenture or Officers' Certificate may provide for the method by which specified
terms (such as interest rate, maturity date, record date or date from which
interest shall accrue) are to be determined. Securities may differ between
Series in respect of any matters, provided that all Series of Securities shall
be equally and ratably entitled to the benefits of the Indenture. At or prior to
the issuance of any Securities within a Series, the following shall be
established by a Board Resolution, a supplemental indenture hereto or an
Officers' Certificate pursuant to authority granted under a Board Resolution:
(a) the title and series designation of the Securities of the Series,
which shall distinguish the Securities of such Series from the Securities of all
other Series;
(b) the aggregate principal amount of the Series of Securities;
(c) the price or prices at which the Securities of the Series will be
issued;
(d) any limit upon the aggregate principal amount of the Securities of
the Series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the Series pursuant to
Section 2.07, 2.08, 2.11, 3.07, 9.06, or any applicable provision of a
supplemental indenture);
(e) the date or dates on which the principal of the Securities of the
Series is payable and the right, if any, to defer any principal payment;
(f) the rate or rates at which the Securities of the Series shall bear
interest, if any; the date or dates from which any such interest shall accrue,
on which any such interest shall be payable and on which a record shall be taken
for the determination of Holders to whom any such interest is payable or the
method by which such rate or rates or date or dates shall be determined or both;
and the right, if any, to defer any interest payment;
(g) the place or places where and the manner in which the principal
of, premium, if any, and interest, if any, on Securities of the Series shall be
payable and the office or agency for the Securities of the Series maintained by
the Company pursuant to Section 2.04;
(h) the right, if any, of the Company to redeem, purchase or repay
Securities of the Series, in whole or in part, at its option and the period or
periods within which, the price or prices (or the method by which such price or
prices shall be determined or both) at which, the form or method of payment
therefor if other than in cash and any terms and conditions upon which and the
manner in which (if different from the provisions of Article 3) Securities of
the Series may be so redeemed, purchased or repaid, in whole or in part,
pursuant to any sinking fund or otherwise;
(i) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the Series in whole or in part pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which the price or prices (or the
method by which such price or prices shall be determined or both) at which, the
form or method of payment therefor if other than in cash and any terms and
conditions upon which and the manner in which (if different from the provisions
of Article 3 or Article 11) Securities of the Series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(j) if the Company will pay additional amounts on the securities in
respect of any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem the Securities of such Series in instead
of making such payment;
(k) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the Series shall be issuable;
(l) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
acceleration of the maturity thereof pursuant to Section 6.02;
(m) whether Securities of the Series will be issuable as Global
Securities;
(n) if the Securities of such Series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such Series) only upon receipt of certain certificates or
13
other documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(o) any deleted, modified or additional events of default or remedies
or any deleted, modified or additional covenants with respect to the Securities
of such Series;
(p) whether the provisions of Article 8 will be applicable to
Securities of such Series;
(q) any provision relating to the issuance of Securities of such
Series at an original issue discount (including, without limitation, the issue
price thereof, the rate or rates at which such original issue discount shall
accrete, if any, and the date or dates from or to which or period or periods
during which such original issue discount shall accrete at such rate or rates);
(r) if other than United States dollars, the foreign currency in which
payment of the principal of, premium, if any, and interest, if any, on the
Securities of such Series shall be payable;
(s) the Trustee for the Securities of such Series, the name and
Corporate Trust Office of such Trustee and if not the Trustee, the identity of
each Registrar or Paying Agent and any other agents with respect to the
Securities of such Series;
(t) if the amounts of payments of principal of, premium, if any, and
interest, if any, on the Securities of such Series are to be determined with
reference to an index or formula, the manner in which such amounts shall be
determined;
(u) the terms for conversion or exchange, if any, with respect to the
Securities of such Series;
(v) which, if any, of the Subsidiaries shall guarantee the Securities
on the terms set forth in Article 10; and
(w) any other terms of the Securities of the Series (which may modify
or delete any provision of this Indenture insofar as it applies to such series).
All Securities of any one Series shall be substantially identical, except
as to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officers' Certificate referred to above or as set forth in
any such supplemental indenture hereto. All Securities of any one Series need
not be issued at the same time and may be issued from time to time, consistent
with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such supplemental indenture or such Officers' Certificate.
Any such Board Resolution or Officers' Certificate referred to above with
respect to Securities of any Series filed with the Trustee on or before the
initial issuance of the Securities of such Series shall be incorporated herein
by reference with respect to Securities of such Series and shall thereafter be
deemed to be a part of the Indenture for all purposes relating to Securities of
such Series as fully as if such Board Resolution or Officers' Certificate were
set forth herein in full.
SECTION 2.04 REGISTRAR AND PAYING AGENT.
(a) The Company shall maintain an office or agency where Securities of
each Series may be presented for registration of, transfer or exchange
("Registrar") and an office or agency where Securities of each Series may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Securities and of their transfer and exchange (the "Security Register"). The
Company may appoint one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrar, and the term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar. The Company hereby
appoints the Trustee the initial Registrar and Paying Agent for each Series
unless another Registrar or Paying Agent, as the case may be, is appointed prior
to the time Securities of that Series are first issued.
SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the
14
payment of principal of, premium, if any, or interest, if any, on, the Series of
Securities, and shall notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Series of Securities.
SECTION 2.06 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders of each Series of Securities and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date or such shorter time as the Trustee may allow, of the
names and addresses of the Holders of each Series of Securities, and the Company
shall otherwise comply with TIA Section 312(a).
SECTION 2.07 TRANSFER AND EXCHANGE.
Where Securities of a Series are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.11, 3.07 or
9.06).
Neither the Company nor the Registrar shall be required (a) to issue,
register the transfer of, or exchange Securities of any Series for the period
beginning at the opening of business fifteen days immediately preceding the
mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion being redeemed
of any such Securities selected, called or being called for redemption in part.
SECTION 2.08 REPLACEMENT SECURITIES.
(a) If any mutilated Security is surrendered to the Trustee or the
Company, or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Security of the same Series if the Trustee's requirements are met.
If required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Security is replaced. The Company may
charge for its expenses in replacing a Security.
(b) Every replacement Security of any Series is an additional
obligation of the Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Securities of such Series
duly issued hereunder.
SECTION 2.09 OUTSTANDING SECURITIES.
(a) The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.09 as not outstanding. Except as set forth in
Section 2.10, a Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security.
(b) If a Security is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced note is held by a bona fide purchaser.
15
(c) If the principal amount of any Security is considered paid under
Section 4.01, it ceases to be outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Securities of a Series payable on that date, then on and after
that date such Series of Securities shall be deemed to be no longer outstanding
and shall cease to accrue interest.
SECTION 2.10 TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any direction, waiver or consent,
Securities of a Series owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities of a Series
that the Trustee knows are so owned shall be so disregarded.
SECTION 2.11 TEMPORARY SECURITIES.
(a) Until certificates representing Securities are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Securities for such Series. Temporary
Securities of any Series shall be substantially in the form of certificated
Securities for such Series but may have variations that the Company considers
appropriate for temporary Securities of such securities and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Definitive Securities of such
Series in exchange for temporary Securities of the same Series.
(b) Holders of temporary Securities of any Series shall be entitled to
all of the benefits of this Indenture, unless otherwise established pursuant to
Section 2.03.
SECTION 2.12 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and, at
the request of the Company, shall destroy cancelled Securities (subject to the
record retention requirements of the Exchange Act). Certification of the
destruction of all cancelled Securities shall be delivered to the Company. The
Company may not issue new Securities to replace Securities that it has paid or
that have been delivered to the Trustee for cancellation.
SECTION 2.13 GLOBAL SECURITIES
(a) A Board Resolution, a supplemental indenture hereto or an
Officers' Certificate shall establish whether the Securities of a Series shall
be issued in whole or in part in the form of one or more Global Securities and
the Depositary for such Global Security or Securities.
(b) Notwithstanding any provisions to the contrary contained in
Section 2.07 of the Indenture and in addition thereto, any Global Security shall
be exchangeable pursuant to Section 2.07 of the Indenture for Securities
registered in the names of Holders other than the Depositary for such Security
or its nominee only if (i) such Depositary notifies the Company that it is
unwilling or unable to continue as a Depositary for such Global Security or if
at any time such Depositary ceases to be a clearing agency registered under the
Exchange Act, and, in either case, the Company fails to appoint a successor
Depositary within 90 days of such event, (ii) the Company executes and delivers
to the Trustee an Officers' Certificate to the effect that such Global Security
shall be so exchangeable or (iii) an Event of Default with respect to the
Securities represented by such Global Security shall have happened and be
continuing. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Securities registered in such names and the
Depositary shall direct in writing in an aggregate principal amount equal to the
principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.13, a Global Security may not be
transferred except as a whole by the Depositary with respect to such Global
Security to a nominee of such Depositary, by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such a successor
Depositary.
16
(c) Any Global Security issued hereunder shall bear a legend in
substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depositary or
a nominee of the Depositary. This Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and may not
be transferred except as a whole by the Depositary to a nominee of the
Depositary, 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 a successor Depositary."
(d) The Depositary, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a Holder is entitled to
give or take under the Indenture.
(e) Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.03, payment of the principal of
and interest, if any, on any Global Security shall be made to the Holder
thereof.
(f) Except as provided in Section 2.13(e), the Company, the Trustee
and any Agent shall treat a Person as the Holder of such principal amount of
outstanding Securities of such Series represented by a Global Security as shall
be specified in a written statement of the Depositary with respect to such
Global Security, for purposes of obtaining any consents, declarations, waivers
or directions required to be given by the Holders pursuant to this Indenture.
SECTION 2.14 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on a Series of Securities,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders of the Series on a subsequent special record date, in each case at the
rate provided in the applicable Securities and in Section 4.01. The Company
shall notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on each Security of such Series and the date of the proposed payment.
The Company shall fix or cause to be fixed each such special record date and
payment date, provided that no such special record date shall be less than 10
days prior to the related payment date for such defaulted interest. At least 15
days before the special record date, the Company (or, upon the written request
of the Company, the Trustee in the name and at the expense of the Company) shall
mail or cause to be mailed to Holders of the Series a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
SECTION 2.15 CUSIP OR ISIN NUMBERS.
The Company in issuing the Securities may use "CUSIP" or "ISIN" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" or "ISIN"
numbers in notices of redemption as a convenience to Holders; provided, however,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" or "ISIN" numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
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 except as otherwise specified,
as contemplated by Section 2.03 for such Series of Securities.
17
SECTION 3.02 NOTICES TO TRUSTEE.
If the Company elects to redeem Securities of any Series, it shall furnish
to the Trustee, at least 30 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth (a) the paragraph of the applicable
Security or the Section (or clause) of this Indenture pursuant to which the
redemption shall occur, (b) the redemption date, (c) the principal amount of
Securities of such Series to be redeemed and (d) the redemption price or the
calculation of the redemption price.
SECTION 3.03 SELECTION OF SECURITIES TO BE REDEEMED.
(a) If less than all of the Securities of a Series are to be redeemed
at any time, the Trustee shall select the Securities of such Series to be
redeemed among the Holders of such Series of Securities on a pro rata basis, by
lot or in accordance with any other method the Trustee considers fair and
appropriate. In the event of partial redemption by lot, the particular
Securities of a Series to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Securities of such Series not
previously called for redemption.
(b) The Trustee shall promptly notify the Company in writing of the
Securities of such Series selected for redemption and, in the case of any
Security of such Series selected for partial redemption, the principal amount
thereof to be redeemed. Securities and portions of Securities selected shall be
in amounts equal to the minimum authorized denominations for Securities of such
Series or any multiple thereof. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Securities of any Series called for
redemption also apply to portions of Securities for such Series called for
redemption.
SECTION 3.04 NOTICE OF REDEMPTION.
(a) Unless otherwise indicated for a particular Series by Board
Resolution, a supplemental indenture hereto or an Officers' Certificate, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail or cause to be mailed, by first class mail, a notice of redemption to
each Holder whose Securities are to be redeemed at its registered address.
(b) The notice shall identify the Securities to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price or a calculation of the redemption
price;
(iii) if any Security of the Series is being redeemed in part,
the portion of the principal amount of such Security to be
redeemed and that, after the redemption date upon surrender
of such Security, a new Security or Securities of the Series
in principal amount equal to the unredeemed portion shall be
issued upon cancellation of the original Security;
(iv) the name and address of the Paying Agent;
(v) that Securities of the Series called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(vi) whether interest, if any, on Securities of any Series called
for redemption will cease to accrue on and after the
redemption date;
(vii) the paragraph of the Securities or Section (or clause) of
this Indenture pursuant to which the Securities called for
redemption are being redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP of ISIN number, if any, listed in such
notice or printed on the Securities; and
(ix) any other information as may be required by the terms of the
particular Series of the Securities of a Series being
redeemed.
(c) At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days, or such shorter
period allowed by the Trustee, prior to the redemption date, an Officers'
Certificate
18
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in this Section 3.04.
SECTION 3.05 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.04,
Securities called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.06 DEPOSIT OF REDEMPTION PRICE.
(a) On or before the redemption date, the Company shall deposit with
the Trustee or with the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 2.04) money
sufficient to pay the redemption price of, and accrued interest, if any, on, all
Securities to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest, if any, on, all Securities to be
redeemed.
(b) If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest, if any, shall cease to
accrue on the Securities or the portions of Securities called for redemption
(unless an earlier date shall be specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate referred to in Section 2.03 by or
pursuant to which the form or terms of the Securities of such Series were
established). If a Security is redeemed on or after an interest record date but
on or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Security was registered
at the close of business on such record date. If any Security called for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest, if any,
shall be paid on the unpaid principal from the redemption date until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Securities and in
Section 4.01.
SECTION 3.07 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Security of the same Series
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
SECTION 4.01 PAYMENT OF SECURITIES.
(a) The Company shall pay or cause to be paid the principal of,
premium, if any, and interest, if any, on, the each Series of Securities on the
dates and in the manner provided in the Securities. Principal, premium, if any,
and interest, if any, shall be considered paid on the date due if the Paying
Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m.
Eastern Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal, premium,
if any, and interest, if any, then due.
(b) Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain, in the continental United States, an
office or agency (which may be an office or drop facility of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar, Paying Agent or additional
paying agent) where Securities may be presented or surrendered for payment,
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the 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
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demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
(c) The Company hereby designates the Corporate Trust Office of the
Trustee, as one such office, drop facility or agency of the Company in
accordance with Section 2.04.
SECTION 4.03 REPORTS.
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, so long as any
Securities are outstanding, the Company shall file with the Commission and
provide the Trustee and Holders with such annual reports (other than an annual
report on Form 11-K or any successor form) and such information, documents and
other reports as are specified in Sections 13 and 15(d) of the Exchange Act and
applicable to a U.S. corporation subject to such sections, such information,
documents and reports so to be filed with the Commission and provided at the
times specified for the filing of such information, documents and reports under
such Sections; provided, however, that the Company shall not be so obligated to
file such information, documents and reports with the Commission if the
Commission does not permit such filings.
SECTION 4.04 COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Securities
is prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered to the Trustee pursuant to Section 4.03 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Articles 4 or 5 or, if any such violation
has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Default, its status and what action the Company is taking or proposes to
take with respect thereto.
SECTION 4.05 TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Securities.
SECTION 4.06 STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this
20
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.07 CORPORATE EXISTENCE.
Subject to Article 5 and any covenant included in a supplemental indenture,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, and the corporate,
limited liability company, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary; provided, however, that the Company shall not be
required to preserve the corporate, limited liability company, partnership or
other existence of any of its Restricted Subsidiaries if (i) the cessation of
such existence complies with Article 5 or (ii) an Officer of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect to the Holders
of the Securities.
SECTION 4.08 PAYMENTS FOR CONSENT.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Securities of a Series
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid or is paid to all Holders of Securities of such Series that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
SECTION 4.09 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
(a) The Board of Directors may designate any Subsidiary of the Company
to be an Unrestricted Subsidiary if, immediately following such designation and
any concurrent designation under any indenture pursuant to which the Company has
outstanding Subordinated Debt, the Subsidiary to be so designated:
(i) does not own any Capital Stock or Debt of, or own or hold
any Lien on any Property of, the Company or any other
Restricted Subsidiary,
(ii) has no Debt other than Debt:
1) as to which neither the Company nor any of its Restricted Subsidiaries
(A) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Debt), (B) is directly
or indirectly liable as a Guarantor or otherwise, or (C) constitutes
the lender; provided, however, the Company or a Restricted Subsidiary
may loan, advance or extend credit to, or Guarantee the Debt of, an
Unrestricted Subsidiary at any time following the date such Subsidiary
is designated as an Unrestricted Subsidiary in accordance with the
restricted payments covenant, if any, in the applicable supplemental
indenture as to each Series of Securities,
2) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or
both any holder of any other Debt (other than the Securities or any
Guarantee permitted by the proviso to the preceding clause (a)(ii)(1))
of the Company or any of its Restricted Subsidiaries to declare a
default on such other Debt or cause the payment thereof to be
accelerated or payable prior to its Stated Maturity, and
3) as to which the lenders have been notified in writing that they will
not have any recourse to the stock or other Property of the Company or
any of its Restricted Subsidiaries, except for Debt that has been
Guaranteed as permitted by the proviso to the preceding clause
(a)(ii)(1);
(iii) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary
of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not
Affiliates of the Company;
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(iv) is a Person with respect to which neither the Company nor
any of its Restricted Subsidiaries has any direct or
indirect obligation (1) to subscribe for additional Capital
Stock or (2) to maintain or preserve such Person's financial
condition or to cause such Person to achieve any specified
levels of operating results;
(v) has not Guaranteed or otherwise directly or indirectly
provided credit support for any Debt of the Company or any
of its Restricted Subsidiaries; and
(vi) has at least one director on its board of directors that is
not a director or executive officer of the Company or any of
its Restricted Subsidiaries and has at least one executive
officer that is not a director or executive officer of the
Company or any of its Restricted Subsidiaries.
(b) Unless so designated as an Unrestricted Subsidiary, any Person
that becomes a Subsidiary of the Company will be classified as a Restricted
Subsidiary; provided, however, that such Subsidiary shall not be designated a
Restricted Subsidiary and shall be automatically classified as an Unrestricted
Subsidiary if (i) either of the requirements set forth in clauses (d)(i) and
(ii) of this Section 4.09 will not be satisfied after giving pro forma effect to
such classification or if such Person is a Subsidiary of an Unrestricted
Subsidiary; or (ii) if such Subsidiary is engaged in the business of originating
residential home loans, title insurance and reinsurance or closing or settlement
services.
(c) Except as provided in the first sentence of clause (a) of this
Section 4.09, no Restricted Subsidiary may be redesignated as an Unrestricted
Subsidiary, and neither the Company nor any Restricted Subsidiary shall at any
time be directly or indirectly liable for any Debt that provides that the holder
thereof may (with the passage of time or notice or both) declare a default
thereon or cause the payment thereof to be accelerated or payable prior to its
Stated Maturity upon the occurrence of a default with respect to any Debt, Lien
or other obligation of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary). Upon designation of a
Restricted Subsidiary as an Unrestricted Subsidiary in compliance with this
Section 4.09, such Restricted Subsidiary shall, by execution and delivery of a
supplemental indenture be released from any Subsidiary Guaranty previously made
by such Restricted Subsidiary.
(d) The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary if, immediately after giving pro forma effect to
such designation,
(i) the Company could Incur at least $1.00 of additional Debt
pursuant to the test set forth in the applicable
supplemental indenture, and
(ii) no Default or Event of Default shall have occurred and be
continuing or would result therefrom.
(e) Any such designation or redesignation by the Board of Directors
will be evidenced to the Trustee by filing with the Trustee a Board Resolution
giving effect to such designation or redesignation and an Officers' Certificate
that:
(i) certifies that such designation or redesignation complies
with the preceding provisions, and
(ii) gives the effective date of such designation or
redesignation,
such filing with the Trustee to occur within 45 days after the end of the fiscal
quarter of the Company in which such designation or redesignation is made (or,
in the case of a designation or redesignation made during the last fiscal
quarter of the Company's fiscal year, within 90 days after the end of such
fiscal year).
SECTION 4.10 LAYERED DEBT.
The Company shall not, and shall not permit any Subsidiary Guarantor to,
Incur, directly or indirectly, any Debt that is subordinate or junior in right
of payment to any Senior Debt unless such Debt is Senior Subordinated Debt or is
expressly subordinated in right of payment to the Securities or the Subsidiary
Guaranties, as the case may be. In addition, no Subsidiary Guarantor shall
Guarantee, directly or indirectly, any Debt of the Company that is subordinate
or junior in right of payment to any Senior Debt unless such Guarantee is
expressly subordinate in right of payment to, or ranks pari passu with, the
Subsidiary Guaranty of such Subsidiary Guarantor.
22
ARTICLE 5.
SUCCESSORS
SECTION 5.01 MERGER, CONSOLIDATION, OR SALE OF PROPERTY.
(a) The Company shall not merge, consolidate or amalgamate with or
into any other Person (other than a merger of a Wholly Owned Restricted
Subsidiary into the Company or, subject to compliance with the restricted
payments covenant, if any, in the applicable supplemental indenture as to each
Series of Securities, a merger of a Subsidiary Guarantor into the Company) or
sell, transfer, assign, lease, convey or otherwise dispose of all or
substantially all its Property in any one transaction or series of related
transactions unless:
(i) the Company shall be the Surviving Person, or the Surviving
Person (if other than the Company) formed by such merger,
consolidation or amalgamation or to which such sale,
transfer, assignment, lease, conveyance or disposition is
made shall be a corporation organized and existing under the
laws of the United States of America, any State thereof or
the District of Columbia;
(ii) the Surviving Person (if other than the Company) expressly
assumes, by supplemental indenture, in a form reasonably
satisfactory to the Trustee, executed and delivered to the
Trustee by such Surviving Person, the due and punctual
payment of the principal of, and premium, if any, and
interest on, all the Securities, according to their tenor,
and the due and punctual performance and observance of all
the covenants of this Indenture to be performed by the
Company;
(iii) in the case of a sale, transfer, assignment, lease,
conveyance or other disposition of all or substantially all
the Property of the Company, such Property shall have been
transferred as an entirety or virtually as an entirety to
one Person;
(iv) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis (and
treating, for purposes of this clause (iv) and clauses (v)
and (vi) of this Section 5.01(a), any Debt that becomes, or
is anticipated to become, an obligation of the Surviving
Person or any Restricted Subsidiary as a result of such
transaction or series of related transactions as having been
Incurred by the Surviving Person or such Restricted
Subsidiary at the time of such transaction or series of
related transactions), no Default or Event of Default shall
have occurred and be continuing;
(v) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, the
Company or the Surviving Person, as the case may be, would
be able to Incur at least $1.00 of additional Debt pursuant
to the test set forth in the applicable supplemental
indenture, if any, without regard to any enumerated
exceptions;
(vi) the Company shall deliver, or cause to be delivered, to the
Trustee, in form and substance reasonably satisfactory to
the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such transaction or series of
related transactions and the supplemental indenture, if any,
in respect thereto comply with this Section 5.01(a) and that
all conditions precedent herein provided for relating to
such transaction or series of related transactions have been
satisfied.
(b) The Company shall not permit any Subsidiary Guarantor to merge,
consolidate or amalgamate with or into any other Person (other than a merger of
a Wholly Owned Restricted Subsidiary into such Subsidiary Guarantor or the
Company or subject to compliance with the restricted payments covenant, if any,
in the applicable supplemental indenture as to each Series of Securities, a
merger of a Subsidiary Guarantor into the Company) or sell, transfer, assign,
lease, convey or otherwise dispose of all or substantially all its Property in
any one transaction or series of related transactions unless:
23
(i) the Surviving Person (if other than such Subsidiary
Guarantor) formed by such merger, consolidation or
amalgamation or to which such sale, transfer, assignment,
lease, conveyance or disposition is made shall be a
corporation, company (including a limited liability company)
or partnership organized and existing under the laws of the
United States of America, any State thereof or the District
of Columbia;
(ii) the Surviving Person (if other than such Subsidiary
Guarantor) expressly assumes, by supplemental indenture, in
a form reasonably satisfactory to the Trustee,, executed and
delivered to the Trustee by such Surviving Person, the due
and punctual performance and observance of all the
obligations of such Subsidiary Guarantor under its
Subsidiary Guaranty;
(iii) in the case of a sale, transfer, assignment, lease,
conveyance or other disposition of all or substantially all
the Property of such Subsidiary Guarantor, such Property
shall have been transferred as an entirety or virtually as
an entirety to one Person;
(iv) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis (and
treating, for purposes of this clause (iv) and clauses (v)
and (vi) of this Section 5.01(b), any Debt that becomes, or
is anticipated to become, an obligation of the Surviving
Person, the Company or any Restricted Subsidiary as a result
of such transaction or series of transactions as having been
Incurred by the Surviving Person, the Company or such
Restricted Subsidiary at the time of such transaction or
series of related transactions), no Default or Event of
Default shall have occurred and be continuing;
(v) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, the
Company would be able to Incur at least $1.00 of additional
Debt pursuant to the test set forth in the applicable
supplemental indenture, if any, without regard to any
enumerated exceptions;
(vi) the Company shall deliver, or cause to be delivered, to the
Trustee, in form and substance reasonably satisfactory to
the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such transaction or series of
related transactions and such Subsidiary Guaranty, if any,
in respect thereto comply with this Section 5.01(b) and that
all conditions precedent herein provided for relating to
such transaction or series of related transactions have been
satisfied.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
The Surviving Person shall succeed to, and be substituted for, and may
exercise every right and power of the Company under this Indenture (or of the
Subsidiary Guarantor under the Subsidiary Guaranty, as the case may be), but the
predecessor company in the case of a lease shall not be released from any of the
obligations or covenants under this Indenture, including with respect to the
payment of the Securities.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
(a) "Event of Default, " wherever used herein with respect to
Securities of any Series, means any one or more of the following events
(whatever the reason for such Event of Default) unless it is either inapplicable
to a particular Series or it is specifically deleted or modified in or pursuant
to the Board Resolution, supplemental indenture hereto or Officers' Certificate
establishing such Series of Securities or in the form of Security, for such
Series:
24
(i) failure to make the payment of any interest, on any Security
of that Series when the same becomes due and payable, and
such failure continues for a period of 30 days;
(ii) failure to make the payment of any principal of, or premium,
if any, on, any Security of that Series when the same
becomes due and payable at their Stated Maturity, upon
acceleration, redemption, required repurchase or otherwise;
(iii) failure to comply with Section 5.01;
(iv) failure to comply with any other covenant or agreement in
the Securities or in this Indenture (other than a failure
that is the subject of the preceding clause (i), (ii) or
(iii)), and such failure continues for 30 days after written
notice is given to the Company as provided in clause (b)
below;
(v) a default under any Debt (other than Non-Recourse Debt),
whether such Debt exists on the date of the supplemental
indenture relating to such Series of is created thereafter,
by the Company or any Restricted Subsidiary that results in
acceleration of the maturity of such Debt, or failure to pay
any such Debt at maturity, in an aggregate amount greater
than $50.0 million;
(vi) any judgment or judgments for the payment of money in an
aggregate amount in excess of $50.0 million that shall be
rendered against the Company or any Restricted Subsidiary
and that shall not be waived, satisfied or discharged for
any period of 30 consecutive days during which a stay of
enforcement shall not be in effect;
(vii) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
1) commences a voluntary case,
2) consents to the entry of an order for relief against it in an
involuntary case,
3) consents to the appointment of a custodian of it or for all or
substantially all of its property,
4) makes a general assignment for the benefit of its creditors, or
5) generally is not paying its debts as they become due;
(viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
1) is for relief against the Company or any Significant Subsidiary in an
involuntary case,
2) appoints a custodian of the Company or any Significant Subsidiary or
for all or substantially all of the property of the Company or any
Significant Subsidiary, or
3) orders the liquidation of the Company or any Significant Subsidiary,
and the order or decree remains unstayed and in effect for
60 days; or
(ix) any Subsidiary Guaranty relating to the Securities of such
Series ceases to be in full force and effect (other than in
accordance with the terms of such Subsidiary Guaranty, the
Indenture or any supplemental indenture), or any Subsidiary
Guarantor denies or disaffirms its obligations under its
Subsidiary Guaranty relating to the Securities; or
(x) any other Event of Default provided with respect to the
Securities of such Series which is specified in a Board
Resolution, a supplemental indenture hereto or an Officers'
Certificate in accordance with Section 2.03.
(b) A Default under clause (a)(iv) is not an Event of Default in
respect of the Securities until the Trustee or the Holders of not less than 25%
in aggregate principal amount of Securities of the affected Series
25
then outstanding notify the Company of the Default, and the Company does not
cure such Default within the time specified after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default."
SECTION 6.02 ACCELERATION.
(a) If an Event of Default with respect to Securities of any Series
then outstanding (other than an Event of Default specified in Section 6.01(a)(v)
or (a)(vi)), shall have occurred and be continuing, the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Securities of such
Series then outstanding may declare to be immediately due and payable the
principal amount of all the Securities of such Series then outstanding, plus
accrued but unpaid interest, if any, to the date of acceleration. In the case of
an Event of Default specified in Section 6.01(a)(v) or (a)(vi), such amount with
respect to all the Securities of such Series will become due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders. Holders may not enforce this Indenture or the Securities except as
provided in this Indenture.
(b) In the event of a declaration of acceleration of the Securities of
any Series because an Event of Default has occurred and is continuing as a
result of the acceleration of any Debt described in Section 6.01(a)(v), the
declaration of acceleration of the Securities of such Series shall be
automatically annulled if the holders of any Debt described in Section
6.01(a)(v) have rescinded the declaration of acceleration in respect of such
Debt within 30 days of the date of such declaration and if (i) the annulment of
the acceleration of the Securities of such Series would not conflict with any
judgment or decree of a court of competent jurisdiction, and (ii) all existing
Events of Default, except nonpayment of principal or interest on the Securities
of such Series that became due solely because of the acceleration of the
Securities of such Series, have been cured or waived.
SECTION 6.03 OTHER REMEDIES.
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of, premium, if
any, and interest, if any, on, the Securities of such Series or to enforce the
performance of any provision of the Securities of such Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess
any of the Securities of such Series or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of the
then outstanding Securities of any Series by notice to the Trustee may on behalf
of the Holders of all of the Securities of such Series waive an existing Default
or Event of Default and its consequences hereunder, except a continuing Default
or Event of Default in the payment of the principal of, premium, if any, or
interest, if any, on, the Securities of such Series; provided, however, that
after any acceleration, but before a judgment or decree based on acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of the Securities of such Series then outstanding may rescind and annul such
acceleration if all Events of Default, other than the nonpayment of accelerated
principal, premium, if any, or interest, if any, have been cured or waived as
provided in this Indenture. Upon any such waiver, such Default shall cease to
exist, and any Event of Default 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 impair any right consequent thereon.
SECTION 6.05 CONTROL BY MAJORITY.
Subject to Section 7.01, in case an Event of Default with respect to any
Series shall occur and be continuing, the Trustee will not be under any
obligation to exercise any of its rights or powers under this Indenture at the
request or direction of any of the Holders of such Series, unless such Holders
shall have offered to the Trustee reasonable indemnity. Subject to Section 7.07,
the Holders of a majority in aggregate principal amount of the Securities of
such Series then outstanding will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such Series.
26
SECTION 6.06 LIMITATION ON SUITS.
(a) No Holder of any Security of any Series will have any right to
institute any proceeding with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any remedy hereunder, unless:
(i) such Holder of Securities of the Series affected has
previously given to the Trustee written notice of a
continuing Event of Default with respect to such Series,
(ii) the Holders of at least 25% in aggregate principal amount of
Securities of the affected Series then outstanding have made
written request and offered reasonable indemnity to the
Trustee to institute such proceeding as trustee, and
(iii) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of Securities of such
Series then outstanding a direction inconsistent with such
request and shall have failed to institute such proceeding
within 60 days.
However, the preceding limitations do not apply to a suit instituted by a Holder
for enforcement of payment of the principal of, and premium, if any, or
interest, if any, on, any Security on or after the respective due dates
expressed in such Security.
(b) A Holder may not use this Indenture to affect, disturb or
prejudice the rights of another Holder or to obtain a preference or priority
over another Holder.
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, premium, if any, and interest, if
any, on, any Security, on or after the respective due dates expressed in such
Security (including in connection with an offer to purchase), or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a)(i) or (a)(ii) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal, premium, if any, and interest, if any, remaining unpaid on any
Securities and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to 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 the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Securities of the applicable Series), its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such
claims, and any custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid out
of, any and all distributions, dividends, money, securities and other properties
that the Holders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement,
27
adjustment or composition affecting the Securities of such Series or the rights
of any Holder, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.
SECTION 6.10 PRIORITIES.
(a) If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07, including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders for amounts due and unpaid on the Securities of
such Series for principal, premium, if any, and interest, if any, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Securities of such Series for principal, premium, if any, and
interest, if any, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07, or a suit by Holders of more than 10% in principal amount of the then
outstanding Securities of such Series.
ARTICLE 7.
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default with respect to the Securities of a Series
has occurred and is continuing, the Trustee shall exercise with respect to such
Series of Securities such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee with respect to the Securities of
any Series shall be determined solely by the express
provisions of this Indenture, and the Trustee need perform
only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(i) this clause (c) does not limit the effect of clause (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to clauses (a),
(b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request or direction of any Holders, unless such Holders shall have offered to
the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) 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.
SECTION 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. 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 from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders 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.
(g) The Trustee shall not be deemed to have notice of any Default or
Event of Default with respect to a Series of Securities unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a Default or Event of Default is received by a
Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the specific Default or Event of Default, the
Securities of such Series affected and this Indenture.
(h) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
(i) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(j) The Trustee shall have no duty to inquire as to the performance of
the Company's covenants herein.
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SECTION 7.03 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 any Affiliate
of the Company with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the
Securities or any other document in connection with the sale of the Securities
or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing with respect to
Securities of any Series then outstanding and if it is known to the Trustee, the
Trustee shall mail to Holders of such Series a notice of the Default or Event of
Default with respect to such Series within 90 days after it occurs unless such
Default or Event of Default has since been cured. Except in the case of a
Default or Event of Default in payment of principal of, premium, if any, or
interest, if any, on, any Security of any Series, the Trustee may withhold
notice of any continuing Default or Event of Default if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interest of the Holders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS.
(a) Within 60 days after [MAY 15], and for so long as Securities of
any Series remain outstanding, the Trustee shall mail to the Holders a brief
report dated as of such reporting date that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the 12
months preceding the reporting date, no report need be transmitted). The Trustee
also shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the Holders
shall be mailed to the Company and filed with the Commission and each stock
exchange on which the Securities of any applicable Series are listed in
accordance with TIA Section 313(d). The Company shall promptly notify the
Trustee with respect to any Series when and as the Securities of such Series are
listed on any stock exchange.
SECTION 7.07 COMPENSATION AND INDEMNITY.
(a) The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of its duties under this Indenture and services
hereunder as agreed to in writing. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee or any predecessor Trustee
against any and all losses, claims, damages, penalties, fines, liabilities or
expenses, including incidental and out-of-pocket expenses and reasonable
attorneys fees ("losses") incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such losses may be attributable to its
negligence, willful misconduct or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim, and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel, and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
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(c) The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
(d) To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities of any Series on all money or
property held or collected by the Trustee, except that held in trust to pay
principal of, premium, if any, and interest, if any, on, particular Securities
of that Series. Such Lien shall survive the satisfaction and discharge of this
Indenture.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(a)(vii) or (a)(viii) occurs (or any
comparable provision set forth in a supplemental indenture), the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
(f) The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08 REPLACEMENT OF TRUSTEE.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign with respect to one or more or all Series
of Securities in writing at any time upon 30 days' prior notice to the Company
and be discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Securities of
any Series may remove the Trustee with respect to the Securities of such Series
by so notifying the Trustee and the Company in writing. The Company may remove
the Trustee with respect to one or more or all Series of Securities if:
(i) the Trustee fails to comply with Section 7.10 with respect
to any Series of Securities;
(ii) the Trustee is adjudged to be bankrupt or insolvent, or an
order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(iii) a custodian or public officer takes charge of the Trustee
or its property; or
(iv) the Trustee becomes incapable of acting with respect to any
Series of Securities.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee with respect to the applicable Series. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the then outstanding Securities of such Series may appoint a successor Trustee
to replace the successor Trustee with respect to such Series appointed by the
Company.
(d) If a successor Trustee with respect to Securities of any one or
more Series does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of at
least 10% in principal amount of the then outstanding Securities of the
applicable Series may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee of any Series of Securities, after written request
by any Holder of the applicable Series who has been a Holder of such Series for
at least six months, fails to comply with Section 7.10, such Holder may petition
any court of competent jurisdiction for the removal of the Trustee with respect
to such Series and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee with respect to all or any
applicable Series shall become effective, and the successor Trustee shall have
all the rights, powers and duties with respect to each such Series of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Securities of each such Series. The retiring Trustee
shall promptly transfer all property held by it as Trustee of Securities of each
such Series to the successor Trustee; provided, however, that all sums owing to
the Trustee hereunder shall have been paid. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 shall continue for the benefit of the retiring Trustee.
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SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee. As
soon as practicable, the successor Trustee shall mail a notice of its succession
to the Company and the Holders of Securities of the applicable Series. Any such
successor must nevertheless be eligible and qualified under the provisions of
Section 7.10.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION; DIFFERENT TRUSTEES FOR
DIFFERENT SERIES.
(a) There shall at all times be a Trustee for each Series of
Securities hereunder that is a Person organized and doing business under the
laws of the United States of America, any state thereof or the District of
Columbia that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by Federal, state or District of
Columbia authorities and that has a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
(b) This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
(c) A different Trustee may be appointed by the Company for each
Series of Securities prior to the issuance of such Securities. The Company and
the Trustee for each Series of Securities shall, prior to the issuance of such
Series, execute and deliver an indenture supplemental hereto, which shall
provide for the appointment of such Trustee as Trustee for the such Series and
shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 APPLICABILITY OF ARTICLE.
The Company may, at its option and at any time, elect to have either
Section 8.02 or 8.03 be applied to all outstanding Securities of a Series upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.02 LEGAL DEFEASANCE.
Upon the Company's exercise under Section 8.01 of the option applicable to
this Section 8.02, subject to the satisfaction of the conditions set forth in
Section 8.04, the Company shall be deemed to have been discharged from its
obligations with respect to all outstanding Securities of such Series, and each
Subsidiary Guarantor shall be deemed to have been discharged from its
obligations with respect to its Subsidiary Guaranty, on the date the conditions
set forth below are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, Legal Defeasance means that the Company shall be deemed to have paid
and discharged the entire Debt represented by the outstanding Securities of such
Series, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.05 and the other Sections of this Indenture referred to in
(a) and (b) below, and to have satisfied all its other obligations under such
Securities and this Indenture, and each Subsidiary Guarantor shall be deemed to
have satisfied all its obligations under its Subsidiary Guaranty and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Securities of
such Series to receive solely from the trust fund described in Section 8.04, and
as more fully set forth in such Section, payments in respect of the principal
of, premium, if any, and interest, if any, on, such Securities when such
payments are due, (b) the Company's obligations with respect to such Securities
under Article 2 and Section 4.02,
32
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company's obligations in connection therewith and (d) this Article 8. If
the Company exercises under Section 8.01 the option applicable to this Section
8.02, subject to the satisfaction of the conditions set forth in Section 8.04,
payment of the Securities may not be accelerated because of an Event of Default.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03.
SECTION 8.03 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 of the option applicable to
this Section 8.03, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04, be released from its obligations under the
covenants contained in Sections 4.03, 4.04(b), 4.05 and 4.09 and to the extent
described in the applicable supplemental indenture, and the limitations of
Section 5.01(a)(v), (a)(vi), (b)(v) and (b)(vi) and to the extent described in
the applicable supplemental indenture, with respect to the outstanding
Securities of such Series on and after the date the conditions set forth in
Section 8.04 are satisfied (hereinafter, "Covenant Defeasance"), and such
Securities shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Securities of such Series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01, but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby. If the Company
exercises under Section 8.01 the option applicable to this Section 8.03, subject
to the satisfaction of the conditions set forth in Section 8.04, payment of the
Securities of such Series may not be accelerated because of an Event of Default
specified in Section 6.01 (a)(iii) (with respect to the covenants contained in
Sections 5.01(a)(v), (a)(vi), (b)(v) or (b)(vi) only), (a)(iv) (with respect to
the covenants contained in Sections 4.03, 4.04(b),4.05 and 4.09), (a)(v),
(a)(vi), (a)(vii) and (a)(viii) (but in the case of clauses (a)(vii) and
(a)(viii), with respect to Significant Subsidiaries only). If the Company
exercises its Covenant Defeasance option, each Subsidiary Guarantor will be
released from all its obligations under its Subsidiary Guaranty.
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The Legal Defeasance option or Covenant Defeasance option may be exercised
only if:
(a) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, premium, if any,
and interest, if any, on, the Securities of such Series to be defeased to
maturity or redemption, as the case may be;
(b) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent certified public accountants
expressing their opinion that the payments of principal, premium, if any, and
interest, if any, when due and without reinvestment on the deposited U.S.
Government Obligations plus any deposited money without investment will provide
cash at such times and in such amounts as will be sufficient to pay principal,
premium, if any, and interest, if any, when due on the outstanding Securities of
such Series to be defeased to maturity or redemption, as the case may be;
(c) no Default or Event of Default has occurred and is continuing on
the date of such deposit and after giving effect thereto;
(d) such deposit does not constitute a default under any other
agreement or instrument binding on the Company;
(e) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company Act of
1940;
(f) in the case of the Legal Defeasance option, the Company delivers
to the Trustee an Opinion of Counsel stating that:
33
(i) the Company has received from the Internal Revenue Service a
ruling, or
(ii) since the date of this Indenture there has been a change in
the applicable Federal income tax law, to the effect, in
either case, that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of the outstanding
Securities of such Series to be defeased will not recognize
income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at
the same time as would have been the case if such defeasance
had not occurred;
(g) in the case of the Covenant Defeasance option, the Company
delivers to the Trustee an Opinion of Counsel to the effect that the Holders of
the outstanding Securities of such Series to be defeased will not recognize
income, gain or loss for Federal income tax purposes as a result of such
Covenant Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred; and
(h) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities to be defeased have been complied
with as required by this Indenture.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
(a) Subject to Section 8.06, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the "Trustee") pursuant
to Section 8.04 in respect of the outstanding Securities shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, if any, but such money need not be segregated
from other funds except to the extent required by law.
(b) The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or U.S. Government
Obligations deposited pursuant to Section 8.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Securities.
(c) Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or U.S. Government Obligations held by it as provided
in Section 8.04 which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the certification delivered under
Section 8.04(b)), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06 REPAYMENT TO COMPANY.
Subject to applicable escheat and abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest, if any,
on, any Security and remaining unclaimed for two years after such principal,
premium, if any, or interest, if any, has become due and payable shall be paid
to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder shall thereafter, as an unsecured
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in The
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.
SECTION 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States dollars
or U.S. Government Obligations in accordance with Section 8.02 or 8.03, as the
case may be, by reason of any order or judgment of any court or
34
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities and each Subsidiary Guarantor's obligations under this Indenture and
its Subsidiary Guaranty shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03, as the case may be; provided, however, that, if the Company or any
Subsidiary Guarantor makes any payment of principal of, premium, if any, or
interest, if any, on, any Security following the reinstatement of its
obligations, then it shall be subrogated to the rights of the Holders to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF SECURITIES.
(a) Notwithstanding Section 9.02 of this Indenture, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture or
the Securities without the consent of any Holder to:
(i) cure any ambiguity, omission, defect or inconsistency
contained herein or in any supplemental indenture;
(ii) establish the form or terms of Securities or the Guarantees
to be endorsed thereon of any Series as permitted by Section
2.03;
(iii) evidence and provide for the acceptance of appointment
hereunder of a Trustee for a Series of Securities and to add
to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 7.10
hereof;
(iv) modify the covenants or Events of Default of the Company
solely in respect of, or add new covenants or Events of
Default of the Company that apply solely to, Securities not
outstanding on the date of such supplemental indenture;
(v) evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the
Securities of one or more Series and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the
requirements of Section 7.08;
(vi) provide for the assumption by a Surviving Person of the
obligations of the Company under this Indenture or of a
Subsidiary Guarantor under this Indenture and its Subsidiary
Guaranty;
(vii) provide for uncertificated Securities in addition to or in
place of certificated Securities (provided that the
uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such
that the uncertificated Securities are described in Section
163(f)(2)(B) of the Code);
(viii) add additional Guarantees with respect to the Securities
or to release Subsidiary Guarantors from Subsidiary
Guaranties as provided by the terms of this Indenture;
(ix) make any change that does not adversely affect in any
material respect the rights of any Holder of the Securities
under this Indenture;
(x) comply with any requirement of the Commission in connection
with the qualification of this Indenture under the TIA;
(xi) provide for the issuance of additional Securities in
accordance with this Indenture; or
35
(xii) make any change to the subordination provisions of this
Indenture that would limit or terminate the benefits
available to any holder of Senior Debt under such
provisions, subject to Section 9.03.
(b) Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 9.07, the
Trustee shall join with the Company and the Subsidiary Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02 WITH CONSENT OF HOLDERS OF SECURITIES.
(a) Except as provided in Section 9.02(f), the Company, the Subsidiary
Guarantors and the Trustee may amend or supplement this Indenture and the
Securities of a Series with the consent of the Holders of any Series affected by
such supplemental indenture of at least a majority in aggregate principal amount
of each such Series then outstanding voting as a single class (including
consents obtained in connection with a tender offer or exchange offer for the
Securities), and, subject to Sections 6.04 and 6.07, any existing Default or
Event of Default or compliance with any provision of this Indenture or such
Series may be waived with the consent of the Holders of any Series affected by
such supplemental indenture of at least a majority in aggregate principal amount
of the Securities of such Series then outstanding voting as a single class
(including consents obtained in connection with a tender offer or exchange offer
for the Securities).
(b) Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Securities as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.07, the Trustee shall join with
the Company in the execution of such amended or supplemental indenture unless
such amended or supplemental indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental indenture.
(c) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders of such Series of
Securities on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to consent to such supplemental indenture, whether or
not such Holders remain Holders after such record date, provided that unless
such consent shall have become effective by virtue of the requisite percentage
having been obtained prior to the date which is 90 days after such record date,
any such consent previously given shall automatically and without further action
by any Holder be cancelled and of no further effect.
(d) It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
(e) After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Securities of each
Series affected thereby to such Holder's address appearing in the Security
Register a notice briefly describing the amendment, supplement or waiver. 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 amended or
supplemental indenture or waiver.
(f) Without the consent of each Holder of an outstanding Security
under this Indenture, no amendment, supplement or waiver under this Section 9.02
may:
(i) reduce the amount of Securities of any Series whose Holders
must consent to an amendment, supplement or waiver under
this Indenture,
(ii) reduce the rate of, or extend the time for payment of,
interest, if any, on any Security issued under this
Indenture,
(iii) reduce the principal of, or extend the Stated Maturity of,
any Security issued under this Indenture,
36
(iv) make any Security payable in money other than that stated in
the Security,
(v) impair the right of any Holder of the Securities to receive
payment of principal of, premium, if any, and interest, if
any, on, such Holder's Securities on or after the due dates
therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities or
any Subsidiary Guaranty,
(vi) make any change to the subordination provisions of this
Indenture that would adversely affect the Holders of the
Securities,
(vii) release any security interest that may have been granted in
favor of the Holders of the Securities under this Indenture
other than pursuant to the terms of such security interest,
(viii) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be
redeemed to the extent that such Security is redeemable, and
(ix) make any change in any Subsidiary Guaranty that would
adversely affect in any material respect the holders of the
Securities under this Indenture.
SECTION 9.03 WITH CONSENT OF HOLDERS OF SENIOR DEBT.
No amendment or supplement may be made to the subordination provisions of
this Indenture that adversely affects the rights of any holder of Senior Debt
then outstanding unless the holders of such Senior Debt (or their
Representative) consents to such change.
SECTION 9.04 EFFECT OF SUPPLEMENTAL INDENTURE.
A supplemental indenture as to each Series of Securities which changes or
eliminates any covenant, Event of Default 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.
SECTION 9.05 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Securities of any
Series shall be set forth in an amended or supplemental indenture that complies
with the TIA as then in effect.
SECTION 9.06 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of Securities of such Series is a continuing consent by the Holder
and every subsequent Holder that evidences the same debt as the consenting
Holder's Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder of Securities of such Series may
revoke the consent as to its Security if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder of Securities of such Series.
SECTION 9.07 NOTATION ON OR EXCHANGE OF SECURITIES.
(a) The Trustee may place an appropriate notation about an amendment,
supplement or waiver on Securities of any Series thereafter authenticated. The
Company in exchange for all Securities of any Series may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Securities of
any Series that reflect the amendment, supplement or waiver.
(b) Failure to make the appropriate notation or issue a new Security
of any Series shall not affect the validity and effect of such amendment,
supplement or waiver.
37
SECTION 9.08 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amended or supplemental indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01) shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10
SUBSIDIARY GUARANTIES
SECTION 10.01 SUBSIDIARY GUARANTY.
(a) Each Subsidiary Guarantor of the Company, that in accordance with
the terms of any Series of Securities issued hereunder pursuant to any
supplemental indenture relating to such Securities is required to become a party
to this Indenture as a Guarantor, upon execution of a supplemental indenture,
hereby jointly and severally, unconditionally guarantees to each Holder of a
Security of a Series authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Securities or the obligations of the
Company hereunder or thereunder, that: (a) the principal of, premium, if any,
and interest, if any, on, the Securities shall be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of, premium, if any, and interest, if any on, the
Securities, if lawful, and all other Obligations of the Company to the Holders
or the Trustee hereunder or thereunder shall be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Securities or any of such
other Obligations, that same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration or otherwise. Failing payment when due of any
amount so Guaranteed or any performance so Guaranteed for whatever reason, the
Subsidiary Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Subsidiary Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
(b) Each Subsidiary Guarantor hereby agrees that its Obligations with
regard to this Subsidiary Guaranty shall be absolute and unconditional,
irrespective of the validity or enforceability of the Securities or the
Obligations of the Company under this Indenture, the absence of any action to
enforce the same, any waiver, modification or indulgence granted to the Company
with respect to the same by the Holders or the Trustee, the recovery of any
judgment against the Company or any other obligor with respect to this
Indenture, the Securities or the Obligations of the Company under this Indenture
or the Securities, any action to enforce the same or any other circumstances
(other than complete performance) which might otherwise constitute a legal or
equitable discharge or defense of a Subsidiary Guarantor. Each Subsidiary
Guarantor further, to the extent permitted by law, waives and relinquishes all
claims, rights and remedies accorded by applicable law to guarantors and agrees
not to assert or take advantage of any such claims, rights or remedies,
including but not limited to: (i) any right to require any of the Trustee, the
Holders or the Company (each a "Benefited Party"), as a condition of payment or
performance by such Subsidiary Guarantor, to (1) proceed against the Company,
any other guarantor (including any other Subsidiary Guarantor) of the
Obligations under the Subsidiary Guaranties or any other Person, (2) proceed
against or exhaust any security held from the Company, any such other guarantor
or any other Person, (3) proceed against or have resort to any balance of any
deposit account or credit on the books of any Benefited Party in favor of the
Company or any other Person, or (4) pursue any other remedy in the power of any
Benefited Party whatsoever; (ii) any defense arising by reason of the
incapacity, lack of authority or any disability or other defense of the Company
including any defense based on or arising out of the lack of validity or the
unenforceability of the Obligations under the Subsidiary Guaranties or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of the Company from any cause other than payment in full of the
Obligations under the Subsidiary Guaranties; (iii) any defense based upon any
statute or rule of law which provides that the Obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (iv) any defense based upon any Benefited Party's errors or omissions
in the administration of the Obligations under the Subsidiary Guaranties, except
behavior which amounts to bad faith; (v)(1) any principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms of the
Subsidiary Guaranties and any legal or
38
equitable discharge of such Subsidiary Guarantor's Obligations hereunder, (2)
the benefit of any statute of limitations affecting such Subsidiary Guarantor's
liability hereunder or the enforcement hereof, (3) any rights to set-offs,
recoupments and counterclaims and (4) promptness, diligence and any requirement
that any Benefited Party protect, secure, perfect or insure any security
interest or Lien on any Property subject thereto; (vi) notices, demands,
presentations, protests, notices of protest, notices of dishonor and notices of
any action or inaction, including acceptance of the Subsidiary Guaranties,
notices of default under the Securities or any agreement or instrument related
thereto, notices of any renewal, extension or modification of the Obligations
under the Subsidiary Guaranties or any agreement related thereto, and notices of
any extension of credit to the Company and any right to consent to any thereof;
(vii) to the extent permitted under applicable law, the benefits of any "One
Action" rule; and (viii) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of the Subsidiary Guaranties.
Each Subsidiary Guarantor hereby covenants that its Subsidiary Guaranty shall
not be discharged except as provided in Section 10.05 or by complete performance
of the Obligations contained in its Subsidiary Guaranty and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Subsidiary Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Subsidiary Guarantors, any amount paid by either to the Trustee or such
Holder, this Subsidiary Guaranty, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(d) Each Subsidiary Guarantor agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
Obligations Guaranteed hereby until payment in full of all Obligations
Guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the Obligations Guaranteed hereby may be
accelerated as provided in Article 6 for the purposes of this Subsidiary
Guaranty, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Obligations Guaranteed hereby and (ii) in
the event of any declaration of acceleration of such Obligations as provided in
Article 6, such Obligations (whether or not due and payable) shall forthwith
become due and payable by such Subsidiary Guarantor for the purpose of this
Subsidiary Guaranty. Each Subsidiary Guarantor that makes a payment or
distribution under a Subsidiary Guaranty shall be entitled to a contribution
from each other Subsidiary Guarantor and the Company in a pro rata amount based
on the proportion that the net worth of the Company or the relevant Subsidiary
Guarantor represents relative to the aggregate net worth of the Company and all
of the Subsidiary Guarantors combined.
SECTION 10.02 LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY.
Each Subsidiary Guarantor, and by its acceptance of Securities, each
Holder, hereby confirms that it is the intention of all such parties that the
Subsidiary Guaranty of such Subsidiary Guarantor not constitute a fraudulent
transfer or conveyance for purposes of any Federal or state law to the extent
applicable to any Subsidiary Guaranty. To effectuate the foregoing intention,
the Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree
that the Obligations of such Subsidiary Guarantor under this Article 10 shall be
limited to the maximum amount as shall, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Subsidiary
Guarantor that are relevant under such laws and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Subsidiary Guarantor in respect of the Obligations of such
other Subsidiary Guarantor under this Article 10, result in the Obligations of
such Subsidiary Guarantor under its Subsidiary Guaranty not constituting a
fraudulent transfer or conveyance under Federal or state law.
SECTION 10.03 EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTY.
(a) To evidence its Subsidiary Guaranty set forth in this Article 10,
each Subsidiary Guarantor hereby agrees that a notation of such Subsidiary
Guaranty in substantially the form included in Exhibit A shall be endorsed by
the manual or facsimile signature of an Officer of such Subsidiary Guarantor on
each Security authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Subsidiary Guarantor by the manual or
facsimile signature of an Officer of the Subsidiary Guarantor.
(b) Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guaranty set forth in Section 10.01 hereof shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Subsidiary Guaranty.
39
(c) If an Officer whose signature is on this Indenture or on the
notation of Subsidiary Guaranty no longer holds that office at the time the
Trustee authenticates the Security on which a notation of Subsidiary Guaranty is
endorsed, the Subsidiary Guaranty shall be valid nevertheless.
(d) The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guaranty set forth in this Indenture on behalf of each Subsidiary
Guarantor.
SECTION 10.04 RELEASE OF SUBSIDIARY GUARANTOR.
A Subsidiary Guarantor shall be released from all of its Obligations under
its Subsidiary Guaranty and this Indenture if:
(a) the Company or such Subsidiary Guarantor has sold all or
substantially all of the assets of such Subsidiary Guarantor; or
(b) the Company and its Restricted Subsidiaries have sold all of the
Capital Stock of the Subsidiary Guarantor owned by them,
in each case in a transaction in compliance with Section 5.01(b) hereof and any
covenants relating to Asset Sales or merger, consolidation or sale of Property
provided in the applicable supplemental indenture of each Series of Securities;
and in each such case, the Subsidiary Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to such transactions have been
complied with.
Notwithstanding the foregoing, upon designation of a Restricted Subsidiary
as an Unrestricted Subsidiary in compliance with Section 4.09, such Restricted
Subsidiary shall, by execution and delivery of a supplemental indenture, in a
form reasonably satisfactory to the Trustee, be released from any Subsidiary
Guaranty previously made by such Restricted Subsidiary and its obligations under
this Indenture.
SECTION 10.05 ADDITIONAL SUBSIDIARY GUARANTORS.
The Company covenants and agrees that it will cause any Restricted
Subsidiary which becomes obligated to Guarantee the Securities pursuant to the
terms hereof to execute a supplemental indenture, in a form reasonably
satisfactory to the Trustee, pursuant to which such Subsidiary Guarantor shall
Guarantee the Obligations of the Company under the Securities and this Indenture
in accordance with this Article 10 with the same effect and to the same extent
as if such Person had been named herein as a Subsidiary Guarantor.
ARTICLE 11.
SUBORDINATIONS
SECTION 11.01 AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting any Security of any Series
agrees, that the payment of principal of, premium, if any, and interest, on, and
all other amounts payable in respect of, such Series of Securities is
subordinated in right of payment, to the extent and in the manner provided in
this Article 11, to the payment when due in cash of all Senior Debt of the
Company and that the subordination is for the benefit of and enforceable by the
holders of such Senior Debt. All Series of Securities shall in all respects rank
pari passu with any future Senior Subordinated Debt and senior to all existing
and future Subordinated Debt of the Company, and only Senior Debt shall rank
senior to the Securities in accordance with the provisions set forth herein. All
provisions of this Article 11 shall be subject to Section 11.12. All references
to "Senior Debt" in this Article 11 are to Senior Debt of the Company.
SECTION 11.02 LIQUIDATION, DISSOLUTION, BANKRUPTCY.
Upon any payment or distribution of the assets of the Company to creditors
upon a liquidation, dissolution or winding up of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its Property or upon an assignment for the benefit of the Company's
creditors or the marshaling of its asset and liabilities, the holders of Senior
Debt will be entitled to receive payment in full in cash
40
before the Holders of any Series of Securities are entitled to receive any
payment of principal of, premium, if any, or interest, if any, on, any Series of
Securities, except that Holders of any Series may receive and retain Permitted
Junior Securities; and
Until the Senior Debt is paid in full in cash, any distribution to which
Holders of any Series of Securities would be entitled but for this Article 11
will be made to holders of the Senior Debt as their interests may appear.
SECTION 11.03 SECTION 11.03 DEFAULT ON SENIOR DEBT.
The Company may not pay principal of, or premium, if any, or interest, if
any, on, any Series of Securities, or make any deposit pursuant to Section 8.04,
and may not repurchase, redeem or otherwise retire any Securities (collectively,
"pay the Securities") if (a) any principal, premium, interest or any other
amount payable in respect of any Senior Debt is not paid within any applicable
grace period (including at maturity) or (b) any other default on Senior Debt
occurs and the maturity of such Senior Debt is accelerated in accordance with
its terms unless, in either case, (1) the default has been cured or waived and
any such acceleration has been rescinded or (2) such Senior Debt has been paid
in full in cash; provided, however, that the Company may pay any Series of
Securities without regard to the foregoing if the Company and the Trustee
receive written notice approving such payment from the Representative of such
issue of Senior Debt. During the continuance of any default (other than a
default described in clause (a) or (b) of the preceding sentence) with respect
to any Designated Senior Debt pursuant to which the maturity thereof may be
accelerated immediately without further notice (except any notice required to
effect the acceleration) or the expiration of any applicable grace period, the
Company may not pay any Series of Securities for a period (a "Payment Blockage
Period") commencing upon the receipt by the Company and the Trustee of written
notice of such default from the Representative of the holders of such Designated
Senior Debt specifying an election to effect a Payment Blockage Period (a
"Payment Blockage Notice") and ending 179 days thereafter (unless such Payment
Blockage Notice is earlier terminated (a) by written notice to the Trustee and
the Company from the Representative that gave such Payment Blockage Notice, (b)
because such default is no longer continuing or (c) because such Designated
Senior Debt has been repaid in full in cash). Unless the holders of such
Designated Senior Debt or the Representative of such holders have accelerated
the maturity of such Designated Senior Debt and not rescinded such acceleration,
the Company may (unless otherwise prohibited as described in the first two
sentences of this paragraph) resume payments on the Securities after the end of
such Payment Blockage Period. Not more than one Payment Blockage Notice with
respect to all issues of Designated Senior Debt may be given in any consecutive
360-day period, irrespective of the number of defaults with respect to one or
more issues of Designated Senior Debt during such period.
SECTION 11.04 ACCELERATION OF PAYMENT OF SECURITIES.
If payment of any Series of Securities is accelerated when Designated
Senior Debt is outstanding, the Company may not pay such Series of Securities
until three Business Days after the Representatives of all issues of Designated
Senior Debt receive notice of such acceleration and, thereafter, may pay such
Series only if this Indenture otherwise permits payment at that time.
SECTION 11.05 WHEN DISTRIBUTION MUST BE PAID OVER.
If a payment or distribution is made to holders that because of this
Article 11 should not have been made to them, the Trustee or the holders who
receive the distribution shall hold it in trust for holders of Senior Debt and
pay it over to them as their interests may appear.
SECTION 11.06 SUBROGATION.
After all Senior Debt is paid in full and until the Securities are paid in
full, Holders of any Series of Securities shall be subrogated to the rights of
holders of Senior Debt to receive distributions applicable to Senior Debt. A
distribution made under this Article 11 to holders of Senior Debt that otherwise
would have been made to Holders is not, as between the Company and Holders, a
payment by the Company on such Senior Debt.
SECTION 11.07 RELATIVE RIGHTS.
This Article 11 defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture shall:
41
(a) impair, as between the Company and Holders, the obligation of the
Company, which is absolute and unconditional, to pay principal of, premium, if
any, and interest, if any, on, the Securities in accordance with their terms; or
(b) prevent the Trustee or any Holder from exercising its available
remedies upon an Event of Default, subject to the rights of holders of Senior
Debt to receive distributions otherwise payable to Holders.
SECTION 11.08 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the subordination of
the Debt evidenced by the Securities shall be impaired by any act or failure to
act by the Company or by its failure to comply with this Indenture.
SECTION 11.09 RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 11.03, the Trustee or Paying Agent may continue to
make payments on any Series of Securities and shall not be charged with
knowledge of the existence of facts that would prohibit the making of any such
payments unless, not less than two Business Days prior to the date of such
payment, a Responsible Officer receives notice satisfactory to it that payments
may not be made under this Article 11. The Company, the Registrar or
co-registrar, the Paying Agent, a Representative or a holder of Senior Debt may
give the notice; provided, however, that, if an issue of Senior Debt has a
Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. The Registrar and
co-registrar and the Paying Agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article 11 with respect to
any Senior Debt that may at any time be held by it, to the same extent as any
other holder of such Senior Debt; and nothing in Article 7 shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article 11 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07.
SECTION 11.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative (if any).
SECTION 11.11 ARTICLE 11 NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT RIGHT TO
ACCELERATE.
Nothing in this Article 11 shall prevent an Event of Default in accordance
with Article 6 or have any effect on the right of the Holders or the Trustee to
accelerate the maturity of any Series of Securities or to exercise the rights
and remedies in Article 6.
SECTION 11.12 TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments from
money or the proceeds of U.S. Government Obligations held in trust under Article
8 by the Trustee for the payment of principal of and interest on the Securities
shall not be subordinated to the prior payment of any Senior Debt or subject to
the restrictions set forth in this Article 11, and none of the Holders shall be
obligated to pay over any such amount to the Company or any holder of Senior
Debt or any other creditor of the Company.
SECTION 11.13 TRUSTEE ENTITLED TO RELY.
Upon any payment or distribution pursuant to this Article 11, the Trustee
and the Holders shall be entitled to rely (a) upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature referred
to in Section 11.02 are pending, (b) upon a certificate of the liquidating
trustee or agent or other Person making such payment or distribution to the
Trustee or to the Holders or (c) upon the Representative for the holders of
Senior Debt for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Debt and other Debt of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
11. In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a
42
holder of Senior Debt to participate in any payment or distribution pursuant to
this Article 11, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior Debt held
by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and other facts pertinent to the rights of such
Person under this Article 11, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article 11.
SECTION 11.14 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder by accepting any Security of any Series authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination between the Holders and the
holders of Senior Debt as provided in this Article 11 and appoints the Trustee
as attorney-in-fact for any and all such purposes.
SECTION 11.15 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt and shall not be liable to any such holders if it shall mistakenly
pay over or distribute to Holders or the Company or any other Person, money or
assets to which any holders of Senior Debt shall be entitled by virtue of this
Article 11 or otherwise.
SECTION 11.16 RELIANCE BY HOLDERS OF SENIOR DEBT ON SUBORDINATION
PROVISIONS.
Each Holder by accepting any Security of any Series acknowledges and agrees
that the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Debt, whether such
Senior Debt was created or acquired before or after the issuance of the Note, to
acquire and continue to hold, or to continue to hold, such Senior Debt and such
holder of such Senior Debt shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Debt.
ARTICLE 12.
SUBORDINATION OF SUBSIDIARY GUARANTEES
SECTION 12.01 AGREEMENT TO SUBORDINATE.
Each Subsidiary Guarantor agrees, and each Holder by accepting any Security
of any Series agrees, that the Obligations of such Subsidiary Guarantor are
subordinated in right of payment, to the extent and in the manner provided in
this Article 12, to the payment when due in cash of all Senior Debt of such
Subsidiary Guarantor and that the subordination is for the benefit of and
enforceable by the holders of such Senior Debt. The Obligations of a Subsidiary
Guarantor shall in all respects rank pari passu with any future Senior
Subordinated Debt of such Subsidiary Guarantor and senior to all existing and
future Subordinated Debt of such Subsidiary Guarantor, and only Senior Debt
shall rank senior to the Obligations of such Subsidiary Guarantor in accordance
with the provisions set forth herein. All references to "Obligations" in this
Article 12 are to Obligations of the Subsidiary Guarantors under the Subsidiary
Guaranties.
SECTION 12.02 LIQUIDATION, DISSOLUTION, BANKRUPTCY.
Upon any payment or distribution of the assets of any Subsidiary Guarantor
to creditors upon a liquidation, dissolution or winding up of such Subsidiary
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to such Subsidiary Guarantor or its Property or upon
an assignment for the benefit of the Subsidiary Guarantor's creditors or the
marshaling of its asset and liabilities, holders of Senior Debt of such
Subsidiary Guarantor shall be entitled to receive payment in full in cash of
such Senior Debt before Holders shall be entitled to receive any payment
pursuant to any Obligations of such Subsidiary Guarantor.
43
Until the Senior Debt of any Subsidiary Guarantor is paid in full in cash,
any distribution made by or on behalf of such Subsidiary Guarantor to which
Holders would be entitled but for this Article 12 shall be made to holders of
the Senior Debt as their interests may appear.
SECTION 12.03 DEFAULT ON SENIOR DEBT OF SUBSIDIARY GUARANTOR.
No Subsidiary Guarantor may make any payment pursuant to any of its
Obligations or repurchase, redeem or otherwise retire or defease any Series of
Securities or other Obligations (collectively, "pay its Subsidiary Guaranty") if
(a) any principal, premium, interest or other amount payable in respect of any
Senior Debt of such Subsidiary Guarantor is not paid within any applicable grace
period (including at maturity) or (b) any other default on Senior Debt of such
Subsidiary Guarantor occurs and the maturity of such Senior Debt is accelerated
in accordance with its terms unless, in either case, (i) the default has been
cured or waived and any such acceleration has been rescinded or (ii) such Senior
Debt has been paid in full in cash; provided, however, that any Subsidiary
Guarantor may pay its Subsidiary Guaranty without regard to the foregoing if
such Subsidiary Guarantor and the Trustee receive written notice approving such
payment from the Representative of such issue of Senior Debt of such Subsidiary
Guarantor. No Subsidiary Guarantor may pay its Subsidiary Guaranty during the
continuance of any Payment Blockage Period after receipt by the Company and the
Trustee of a Payment Blockage Notice under Section 11.03. Unless the holders of
Designated Senior Debt giving such Payment Blockage Notice or the Representative
of such holders shall have accelerated the maturity of such Designated Senior
Debt and not rescinded such acceleration, any Subsidiary Guarantor may resume
(unless otherwise prohibited as described in the first two sentences of this
paragraph) resume payments pursuant to its Subsidiary Guaranty after the end of
such Payment Blockage Period.
SECTION 12.04 DEMAND FOR PAYMENT.
If a demand for payment is made on a Subsidiary Guarantor pursuant to
Article 10, such Subsidiary Guarantor may not pay its Subsidiary Guaranty until
three Business Days after the Representatives of all issues of Designated Senior
Debt receive notice of such demand and, thereafter, may pay its Subsidiary
Guaranty only if this Indenture otherwise permits payment at that time.
SECTION 12.05 WHEN DISTRIBUTION MUST BE PAID OVER.
If a payment or distribution is made to holders that because of this
Article 12 should not have been made to them, the Trustee or the Holders who
receive the distribution shall hold it in trust for holders of the relevant
Senior Debt and pay it over to them or their Representatives as their interests
may appear.
SECTION 12.06 SUBROGATION.
After all Senior Debt of a Subsidiary Guarantor is paid in full and until
the Securities are paid in full, Holders shall be subrogated to the rights of
holders of Senior Debt to receive distributions applicable to Senior Debt. A
distribution made under this Article 12 to holders of such Senior Debt that
otherwise would have been made to Holders is not, as between the relevant
Subsidiary Guarantor and Holders, a payment by such Subsidiary Guarantor on such
Senior Debt.
SECTION 12.07 RELATIVE RIGHTS.
This Article 12 defines the relative rights of Holders and holders of
Senior Debt of a Subsidiary Guarantor. Nothing in this Indenture shall:
(a) impair, as between a Subsidiary Guarantor and Holders, the
obligation of such Subsidiary Guarantor, which is absolute and unconditional, to
pay the Obligations to the extent set forth in Article 10; or
(b) prevent the Trustee or any Holder from exercising its available
remedies upon a default by such Subsidiary Guarantor under the Obligations,
subject to the rights of holders of Senior Debt of such Subsidiary Guarantor to
receive distributions otherwise payable to Holders.
44
SECTION 12.08 SUBORDINATION MAY NOT BE IMPAIRED BY SUBSIDIARY GUARANTOR.
No right of any holder of Senior Debt of any Subsidiary Guarantor to
enforce the subordination of the Obligation of such Subsidiary Guarantor shall
be impaired by any act or failure to act by such Subsidiary Guarantor or by its
failure to comply with this Indenture.
SECTION 12.09 RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 12.03, the Trustee or Paying Agent may continue to
make payments on any Subsidiary Guaranty and shall not be charged with knowledge
of the existence of facts that would prohibit the making of any such payments
unless, not less than two Business Days prior to the date of such payment, a
Trust Officer receives written notice satisfactory to it that payments may not
be made under this Article 12. The Company, the relevant Subsidiary Guarantor,
the Registrar or co-registrar, the Paying Agent, a Representative or a holder of
Senior Debt of any Subsidiary Guarantor may give the notice; provided, however,
that, if an issue of Senior Debt of any Subsidiary Guarantor has a
Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. The Registrar and
co-registrar and the Paying Agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article 12 with respect to
any Senior Debt of any Subsidiary Guarantor that may at any time be held by it,
to the same extent as any other holder of Senior Debt; and nothing in Article 7
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article 12 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 12.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt of any Subsidiary Guarantor, the distribution may be made and the
notice given to their Representative (if any).
SECTION 12.11 ARTICLE 12 NOT TO PREVENT EVENTS OF DEFAULT UNDER A
SUBSIDIARY GUARANTY OR LIMIT RIGHT TO DEMAND PAYMENT.
Nothing in this Article 12 shall prevent a default under any Subsidiary
Guaranty or have any effect on the right of the Holders or the Trustee to make a
demand for payment on any Subsidiary Guarantor pursuant to Article 10.
SECTION 12.12 TRUSTEE ENTITLED TO RELY.
Upon any payment or distribution pursuant to this Article 12, the Trustee
and the Holders shall be entitled to rely (i) upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature referred
to in Section 12.02 are pending, (ii) upon a certificate of the liquidating
trustee or agent or other Person making such payment or distribution to the
Trustee or to the Holders or (iii) upon the Representatives for the holders of
Senior Debt of any Subsidiary Guarantor for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Debt and other Debt of such Subsidiary Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 12. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Debt of any Subsidiary Guarantor to
participate in any payment or distribution pursuant to this Article 12, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt of such Subsidiary
Guarantor held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article 12, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.02 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article 12.
SECTION 12.13 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder by accepting any Security of any Series authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination
45
between the Holders and the holders of Senior Debt of any Subsidiary Guarantor
as provided in this Article 12 and appoints the Trustee as attorney-in-fact for
any and all such purposes.
SECTION 12.14 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT OF
SUBSIDIARY GUARANTOR.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt of any Subsidiary Guarantor and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to Holders or the Company
or any other Person, money or assets to which any holders of such Senior Debt
shall be entitled by virtue of this Article 12 or otherwise.
SECTION 12.15 RELIANCE BY HOLDERS OF SENIOR DEBT OF A SUBSIDIARY GUARANTOR
ON SUBORDINATION PROVISIONS.
Each Holder by accepting any Security of any Series acknowledges and agrees
that the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Debt of any
Subsidiary Guarantor, whether such Senior Debt was created or acquired before or
after the issuance of the Note, to acquire and continue to hold, or to continue
to hold, such Senior Debt and such holder of Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt.
ARTICLE 13.
SINKING FUNDS
SECTION 13.01 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of the Securities of a Series, except as otherwise permitted or
required by any form of Security of such Series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
the Securities of any Series is herein referred to as a "mandatory sinking fund
payment" and any other amount provided for by the terms of Securities of such
Series is herein referred to as an "optional sinking fund payment. " If provided
for by the terms of Securities of any Series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 13.02. Each
sinking fund payment shall be applied to the redemption of Securities of any
Series as provided for by the terms of the Securities of such Series.
SECTION 13.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any Series to be made pursuant to the
terms of such Securities (1) deliver outstanding Securities of such Series to
which such sinking fund payment is applicable (other than any of such Securities
previously called for mandatory sinking fund redemption) and (2) apply as credit
Securities of such Series to which such sinking fund payment is applicable and
which have been redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any mandatory sinking
fund) or through the application of permitted optional sinking fund payments or
other optional redemptions pursuant to the terms of such Securities, provided
that such Securities have not been previously so credited. Such Securities shall
be received by the Trustee, together with an Officers' Certificate with respect
thereto, not later than 15 days prior to the date on which the Trustee begins
the process of selecting Securities for redemption, and shall be credited for
such purpose by the Trustee at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Securities in lieu of cash payments pursuant to this Section 13.02,
the principal amount of Securities of such Series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need
not call Securities of such Series for redemption, except upon receipt of a
Company Order that such action be taken, and such cash payment shall be held by
the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however,
46
that the Trustee or such Paying Agent shall from time to time upon receipt of a
Company Order pay over and deliver to the Company any cash payment so being held
by the Trustee or such Paying Agent upon delivery by the Company to the Trustee
of Securities of that Series purchased by the Company having an unpaid principal
amount equal to the cash payment required to be released to the Company.
SECTION 13.03 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days (unless otherwise indicated in the Board Resolution,
supplemental indenture hereto or Officers' Certificate in respect of a
particular Series of Securities) prior to each sinking fund payment date for any
Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that Series pursuant to Section 13.02, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution,
Officers' Certificate or supplemental indenture in respect of a particular
Series of Securities) before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.03 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.05, 3.06 and 3.07.
ARTICLE 14.
SATISFACTION AND DISCHARGE
SECTION 14.01 SATISFACTION AND DISCHARGE.
(a) This Indenture will be discharged and will cease to be of further
effect as to all Securities issued hereunder (except as to the Company's
obligations under Section 7.07, and the Trustee's and each Paying Agent's
obligations under Sections 14.02 and 14.03), when:
(i) either:
1) all Securities that have been authenticated (except lost, stolen or
destroyed Securities that have been replaced or paid and Securities
for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company) have been delivered to the Trustee
for cancellation; or
2) all Securities that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the making of a
notice of redemption or otherwise or will become due and payable
within one year and the Company has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders, money or U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge
the entire indebtedness on the Securities not delivered to the Trustee
for cancellation for principal, premium, if any, and accrued interest,
if any, to the date of maturity or redemption;
(ii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any
other instrument to which the Company is a party or by which
the Company is bound;
(iii) the Company has paid or caused to be paid all sums payable
by it under this Indenture; and
(iv) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money
and/or U.S. Government Obligations
47
toward the payment of the Securities at maturity or the
redemption date, as the case may be.
(b) The Company shall deliver an Officers' Certificate and an Opinion
of Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied.
Section 14.02 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 14.03, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 14.02, the "Trustee")
pursuant to Section 14.01 in respect of the outstanding Securities shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal, premium, if any, and interest and Special
Interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
SECTION 14.03 REPAYMENT TO COMPANY.
Subject to applicable escheat and abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest, if any,
on, any Security pursuant to Section 14.01 and remaining unclaimed for two years
after such principal, and premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder shall thereafter
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
ARTICLE 15.
MISCELLANEOUS
SECTION 15.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 15.02 NOTICES.
(a) Any notice or communication by the Company, the Subsidiary
Guarantors or the Trustee to the others is duly given if in writing (in the
English language) and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next-day delivery, to the other's address:
If to the Company or the Subsidiary Guarantors:
Technical Olympic USA, Inc.
0000 Xxxxxxxxx Xxxx., Xxxxx 000 X
Xxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopier No.: 000-000-0000
With a copy to:
Akerman, Senterfitt
One Southeast Third Avenue 28th Floor
48
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. XxxXxxxxxxx, Esq.
Telecopier No.: 305-374-5095
If to the Trustee:
__________________________________
__________________________________
__________________________________
Attention: _______________________
Telecopier No.: __________________
(b) The Company, the Subsidiary Guarantors or the Trustee, by notice
to the others, may designate additional or different addresses for subsequent
notices or communications.
(c) All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery. Notwithstanding the foregoing, notices
to the Trustee shall be effective only upon receipt by the Trustee.
(d) Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next-day delivery to its address shown on the Security
Register. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. 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.
(e) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
(f) If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 15.03 COMMUNICATION BY HOLDERS OF SECURITIES WITH OTHER HOLDERS OF
SECURITIES.
Holders of any Series of Securities may communicate pursuant to TIA Section
312(b) with other Holders of such Series with respect to their rights under this
Indenture or the Securities of that Series or all Series. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
SECTION 15.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 15.05) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 15.05) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
SECTION 15.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
49
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 15.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders of one or more Series of Securities. The Registrar or Paying Agent may
make reasonable rules and set reasonable requirements for its functions.
SECTION 15.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator,
member, partner or stockholder of the Company or any Subsidiary Guarantor as
such, shall have any liability for any Obligations of the Company or any
Subsidiary Guarantor under the Securities of any Series, this Indenture or for
any claim based on, in respect of, or by reason of, such Obligations or their
creation. Each Holder by accepting a Security of any Series waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Series of Securities.
SECTION 15.08 GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE SECURITIES.
SECTION 15.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 15.10 SUCCESSORS.
All covenants and agreements of the Company and the Subsidiary Guarantors
in this Indenture and the Securities shall bind their successors. All covenants
and agreements of the Trustee in this Indenture shall bind its successors.
SECTION 15.11 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 15.12 COUNTERPART 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 15.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings in this Indenture
have been inserted for convenience of reference only, are not to be considered a
part of this Indenture and shall in no way modify or restrict any of the terms
or provisions hereof.
[Signatures on following page]
50
SIGNATURES
Dated as of _________, 2005
ISSUER:
TECHNICAL OLYMPIC USA, INC.
By:
------------------------------------
Name:
Title:
GUARANTORS:
[SUBSIDIARY GUARANTORS]
TRUSTEE:
[ ], AS TRUSTEE
By:
------------------------------------
Name:
Title:
51
EXHIBIT A
FORM OF NOTATION OF GUARANTEE
For value received, each Subsidiary Guarantor (which term includes any
successor Person under the Indenture), jointly and severally, unconditionally
guarantees, to the extent set forth in the Indenture and subject to the
provisions in the Indenture, dated as of ___________ (the "Indenture"), among
Technical Olympic USA, Inc., as issuer (the "Issuer"), the Subsidiary Guarantors
listed on the signature pages thereto and ______________, as trustee (the
"Trustee"), (a) the due and punctual payment of the principal of, premium, if
any, and interest, if any, on, the Securities, whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal of, premium, if any, and interest, if any, on, the
Securities, if lawful, and the due and punctual performance of all other
obligations of the Issuer to the Holders or the Trustee, all in accordance with
the terms of the Indenture and (b) in case of any extension of time of payment
or renewal of any Securities or any of such other obligations, that the same
shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. The obligations of the Subsidiary Guarantors to the Holders of
Securities and to the Trustee pursuant to the Subsidiary Guaranty and the
Indenture are expressly set forth in Article 10 of the Indenture, and reference
is hereby made to the Indenture for the precise terms of the Subsidiary
Guaranty. This Subsidiary Guaranty is subject to release as and to the extent
set forth in Sections 8.02, 8.03 and 10.05 of the Indenture. Each Holder of a
Security, by accepting the same, agrees to and shall be bound by such
provisions. Capitalized terms used herein and not defined are used herein as so
defined in the Indenture.
[Subsidiary Guarantors]
By:
------------------------------------
Name:
Title:
A-1
TABLE OF CONTENTS
PAGE
CROSS-REFERENCE TABLE*
Trust Indenture Act Indenture
------------------- ----------
310 (a)(1)........................................................ 7.10
(a)(2)............................................................ 7.10
(a)(3)............................................................ N.A.
(a)(4)............................................................ N.A.
(a)(5)............................................................ 7.10
(b)............................................................... 7.10
(c)............................................................... N.A.
311(a)............................................................ 7.11
(b)............................................................... 7.11
(c)............................................................... N.A.
312 (a)........................................................... 2.06
(b)............................................................... 1.03
(c)............................................................... 15.03
313 (a)........................................................... 7.06
(b)(2)............................................................ 7.06; 7.07
(c)............................................................... 7.06; 15.02
(d)............................................................... 7.06
314 (a)........................................................... 4.03
(c)(1)............................................................ 15.04
(c)(2)............................................................ 15.04
(c)(3)............................................................ N.A.
(e)............................................................... 15.05
(f)............................................................... N.A.
315 (a)........................................................... 7.01
(b)............................................................... 7.05
(c)............................................................... 7.01
(d)............................................................... 7.01
(e)............................................................... 6.11
316 (a)(last sentence)............................................ 2.10
(a)(1)(A)......................................................... 6.05
(a)(1)(B)......................................................... 6.04
(a)(2)............................................................ N.A.
(b)............................................................... 6.07
(c)............................................................... 9.02
317 (a)(1)........................................................ 6.08
(a)(2)............................................................ 6.09
(b)............................................................... 2.05
318 (a)........................................................... 15.01
(b)............................................................... N.A.
(c)............................................................... 15.01
N.A. means not applicable.
* This Cross-Reference Table is not part of this Indenture.
I
TABLE OF CONTENTS
PAGE
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.................. 1
Section 1.01 Definitions. .......................................... 1
Section 1.02 Other Definitions. .................................... 11
Section 1.03 Incorporation by Reference of Trust Indenture Act. .... 11
Section 1.04 Rules of Construction. ................................ 11
ARTICLE 2. THE SECURITIES.............................................. 12
Section 2.01 Form and Dating. ...................................... 12
Section 2.02 Execution and Authentication. ......................... 12
Section 2.03 Amount Unlimited, Issuable in Series. ................. 12
Section 2.04 Registrar and Paying Agent. ........................... 14
Section 2.05 Paying Agent to Hold Money in Trust. .................. 14
Section 2.06 Holder Lists. ......................................... 15
Section 2.07 Transfer and Exchange. ................................ 15
Section 2.08 Replacement Securities. ............................... 15
Section 2.09 Outstanding Securities. ............................... 15
Section 2.10 Treasury Securities. .................................. 16
Section 2.11 Temporary Securities. ................................. 16
Section 2.12 Cancellation. ......................................... 16
Section 2.13 Global Securities. .................................... 16
Section 2.14 Defaulted Interest. ................................... 17
Section 2.15 CUSIP or ISIN Numbers. ................................ 17
ARTICLE 3. REDEMPTION AND PREPAYMENT................................... 17
Section 3.01 Applicability of Article. ............................. 17
Section 3.02 Notices to Trustee. ................................... 18
Section 3.03 Selection of Securities to Be Redeemed. ............... 18
Section 3.04 Notice of Redemption. ................................. 18
Section 3.05 Effect of Notice of Redemption. ....................... 19
Section 3.06 Deposit of Redemption Price. .......................... 19
Section 3.07 Securities Redeemed in Part. .......................... 19
ARTICLE 4. COVENANTS................................................... 19
Section 4.01 Payment of Securities. ................................ 19
Section 4.02 Maintenance of Office or Agency. ...................... 19
Section 4.03 Reports. .............................................. 20
Section 4.04 Compliance Certificate. ............................... 20
Section 4.05 Taxes. ................................................ 20
Section 4.06 Stay, Extension and Usury Laws. ....................... 20
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
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Section 4.07 Corporate Existence. .................................. 21
Section 4.08 Payments for Consent. ................................. 21
Section 4.09 Designation of Restricted and Unrestricted
Subsidiaries. ...................................... 21
Section 4.10 Layered Debt. ......................................... 22
ARTICLE 5. SUCCESSORS.................................................. 23
Section 5.01 Merger, Consolidation, or Sale of Property. ........... 23
Section 5.02 Successor Corporation Substituted. .................... 24
ARTICLE 6. DEFAULTS AND REMEDIES....................................... 24
Section 6.01 Events of Default. .................................... 24
Section 6.02 Acceleration. ......................................... 26
Section 6.03 Other Remedies. ....................................... 26
Section 6.04 Waiver of Past Defaults. .............................. 26
Section 6.05 Control by Majority. .................................. 26
Section 6.06 Limitation on Suits. .................................. 27
Section 6.07 Rights of Holders to Receive Payment. ................. 27
Section 6.08 Collection Suit by Trustee. ........................... 27
Section 6.09 Trustee May File Proofs of Claim. ..................... 27
Section 6.10 Priorities. ........................................... 28
Section 6.11 Undertaking for Costs. ................................ 28
ARTICLE 7. TRUSTEE..................................................... 28
Section 7.01 Duties of Trustee. .................................... 28
Section 7.02 Rights of Trustee. .................................... 29
Section 7.03 Individual Rights of Trustee. ......................... 29
Section 7.04 Trustee's Disclaimer. ................................. 30
Section 7.05 Notice of Defaults. ................................... 30
Section 7.06 Reports by Trustee to Holders. ........................ 30
Section 7.07 Compensation and Indemnity. ........................... 30
Section 7.08 Replacement of Trustee. ............................... 31
Section 7.09 Successor Trustee by Merger, Etc. ..................... 32
Section 7.10 Eligibility; Disqualification; Different Trustees
for Different Series. .............................. 32
Section 7.11 Preferential Collection of Claims Against Company. .... 32
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.................... 32
Section 8.01 Applicability of Article. ............................. 32
Section 8.02 Legal Defeasance. ..................................... 32
Section 8.03 Covenant Defeasance. .................................. 33
ii
TABLE OF CONTENTS
(CONTINUED)
PAGE
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Section 8.04 Conditions to Legal or Covenant Defeasance. ........... 33
Section 8.05 Deposited Money and Government Securities To Be
Held in Trust; Other Miscellaneous Provisions. ..... 34
Section 8.06 Repayment to Company. ................................. 34
Section 8.07 Reinstatement. ........................................ 34
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER............................ 35
Section 9.01 Without Consent of Holders of Securities. ............. 35
Section 9.02 With Consent of Holders of Securities. ................ 36
Section 9.03 With Consent of Holders of Senior Debt. ............... 37
Section 9.04 Effect of Supplemental Indenture. ..................... 37
Section 9.05 Compliance with Trust Indenture Act. .................. 37
Section 9.06 Revocation and Effect of Consents. .................... 37
Section 9.07 Notation on or Exchange of Securities. ................ 37
Section 9.08 Trustee to Sign Amendments, Etc. ...................... 38
ARTICLE 10. SUBSIDIARY GUARANTIES....................................... 38
Section 10.01 Subsidiary Guaranty. .................................. 38
Section 10.02 Limitation on Subsidiary Guarantor Liability. ......... 39
Section 10.03 Execution and Delivery of Subsidiary Guaranty. ........ 39
Section 10.04 Release of Subsidiary Guarantor. ...................... 40
Section 10.05 Additional Subsidiary Guarantors. ..................... 40
ARTICLE 11. SUBORDINATIONS.............................................. 40
Section 11.01 Agreement to Subordinate. ............................. 40
Section 11.02 Liquidation, Dissolution, Bankruptcy. ................. 40
Section 11.03 Section 11.03 Default on Senior Debt. ................ 41
Section 11.04 Acceleration of Payment of Securities. ................ 41
Section 11.05 When Distribution Must be Paid Over. .................. 41
Section 11.06 Subrogation. .......................................... 41
Section 11.07 Relative Rights. ...................................... 41
Section 11.08 Subordination May Not be Impaired by Company. ......... 42
Section 11.09 Rights of Trustee and Paying Agent. ................... 42
Section 11.10 Distribution or Notice to Representative. ............. 42
Section 11.11 Article 11 Not to Prevent Events of Default or
Limit Right to Accelerate. ......................... 42
Section 11.12 Trust Moneys Not Subordinated. ........................ 42
Section 11.13 Trustee Entitled to Rely. ............................. 42
Section 11.14 Trustee to Effectuate Subordination. .................. 43
iii
TABLE OF CONTENTS
(CONTINUED)
PAGE
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Section 11.15 Trustee Not Fiduciary for Holders of Senior Debt. ..... 43
Section 11.16 Reliance by Holders of Senior Debt on
Subordination Provisions. .......................... 43
ARTICLE 12. SUBORDINATION OF SUBSIDIARY GUARANTEES...................... 43
Section 12.01 Agreement to Subordinate. ............................. 43
Section 12.02 Liquidation, Dissolution, Bankruptcy. ................. 43
Section 12.03 Default on Senior Debt of Subsidiary Guarantor. ....... 44
Section 12.04 Demand for Payment. ................................... 44
Section 12.05 When Distribution Must be Paid Over. .................. 44
Section 12.06 Subrogation. .......................................... 44
Section 12.07 Relative Rights. ...................................... 44
Section 12.08 Subordination May Not be Impaired by Subsidiary
Guarantor. ......................................... 45
Section 12.09 Rights of Trustee and Paying Agent. ................... 45
Section 12.10 Distribution or Notice to Representative. ............. 45
Section 12.11 Article 12 Not to Prevent Events of Default Under
a Subsidiary Guaranty or Limit Right to Demand
Payment. ........................................... 45
Section 12.12 Trustee Entitled To Rely. ............................. 45
Section 12.13 Trustee to Effectuate Subordination. .................. 45
Section 12.14 Trustee Not Fiduciary For Holders of Senior Debt
of Subsidiary Guarantor. ........................... 46
Section 12.15 Reliance by Holders of Senior Debt of a
Subsidiary Guarantor on Subordination Provisions. .. 46
ARTICLE 13. SINKING FUNDS............................................... 46
Section 13.01 Applicability of Article. ............................. 46
Section 13.02 Satisfaction of Sinking Fund Payments with
Securities. ........................................ 46
Section 13.03 Redemption of Securities for Sinking Fund. ............ 47
ARTICLE 14. SATISFACTION AND DISCHARGE.................................. 47
Section 14.01 Satisfaction and Discharge. ........................... 47
Section 14.02 Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions. ..... 48
Section 14.03 Repayment to Company. ................................. 48
ARTICLE 15. MISCELLANEOUS............................................... 48
Section 15.01 Trust Indenture Act Controls. ......................... 48
Section 15.02 Notices. .............................................. 48
Section 15.03 Communication by Holders of Securities with Other
Holders of Securities. ............................. 49
Section 15.04 Certificate and Opinion as to Conditions Precedent. ... 49
Section 15.05 Statements Required in Certificate or Opinion. ........ 49
iv
TABLE OF CONTENTS
(CONTINUED)
PAGE
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Section 15.06 Rules by Trustee and Agents. .......................... 50
Section 15.07 No Personal Liability of Directors, Officers,
Employees and Stockholders. ........................... 50
Section 15.08 Governing Law. ........................................ 50
Section 15.09 No Adverse Interpretation of Other Agreements. ........ 50
Section 15.10 Successors. ........................................... 50
Section 15.11 Severability. ......................................... 50
Section 15.12 Counterpart Originals. ................................ 50
Section 15.13 Table of Contents, Headings, Etc. ..................... 50
EXHIBIT A ................................................................ 1
FORM OF NOTATION OF GUARANTEE ............................................ 1
CROSS-REFERENCE TABLE* ................................................... II
EXHIBITS
Exhibit A FORM OF NOTATION OF GUARANTEE.......................... A-1
v
