Form of Subordinated Indenture] EV ENERGY PARTNERS, L.P. EV ENERGY FINANCE CORP. as Issuers, any Subsidiary Guarantors party hereto, and as Trustee INDENTURE Dated as of Debt Securities
Exhibit
4.2
[Form
of Subordinated Indenture]
EV
ENERGY PARTNERS, L.P.
EV
ENERGY FINANCE CORP.
as
Issuers,
any
Subsidiary Guarantors party hereto,
and
[__________________],
as
Trustee
INDENTURE
Dated
as of
Debt
Securities
TABLE
OF CONTENTS
|
Article
I. DEFINITIONS AND INCORPORATION BY REFERENCE
|
1
|
||
|
Section
1.01
|
Definitions.
|
1
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|
|
Section
1.02
|
Other
Definitions.
|
7
|
|
|
Section
1.03
|
Incorporation
by Reference of Trust Indenture Act.
|
7
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|
|
Section
1.04
|
Rules
of Construction.
|
7
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|
|
Article
II. DEBT SECURITIES
|
8
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||
|
Section
2.01
|
Forms
Generally.
|
8
|
|
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Section
2.02
|
Form
of Trustee’s Certificate of Authentication.
|
8
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|
|
Section
2.03
|
Principal
Amount; Issuable in Series.
|
9
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|
|
Section
2.04
|
Execution
of Debt Securities.
|
11
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|
|
Section
2.05
|
Authentication
and Delivery of Debt Securities.
|
11
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|
|
Section
2.06
|
Denomination
of Debt Securities.
|
13
|
|
|
Section
2.07
|
Registration
of Transfer and Exchange.
|
13
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|
|
Section
2.08
|
Temporary
Debt Securities.
|
14
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|
|
Section
2.09
|
Mutilated,
Destroyed, Lost or Stolen Debt Securities.
|
15
|
|
|
Section
2.10
|
Cancellation
of Surrendered Debt Securities.
|
16
|
|
|
Section
2.11
|
Provisions
of the Indenture and Debt Securities for the Sole Benefit of the
Parties
and the Holders.
|
16
|
|
|
Section
2.12
|
Payment
of Interest; Interest Rights Preserved.
|
16
|
|
|
Section
2.13
|
Securities
Denominated in Dollars.
|
17
|
|
|
Section
2.14
|
Wire
Transfers.
|
17
|
|
|
Section
2.15
|
Securities
Issuable in the Form of a Global Security.
|
17
|
|
|
Section
2.16
|
Medium
Term Securities.
|
20
|
|
|
Section
2.17
|
Defaulted
Interest.
|
20
|
|
|
Section
2.18
|
CUSIP
Numbers.
|
21
|
|
|
Article
III. REDEMPTION OF DEBT SECURITIES
|
21
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||
|
Section
3.01
|
Applicability
of Article.
|
21
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|
|
Section
3.02
|
Notice
of Redemption; Selection of Debt Securities.
|
21
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|
|
Section
3.03
|
Payment
of Debt Securities Called for Redemption.
|
23
|
|
|
Section
3.04
|
Mandatory
and Optional Sinking Funds.
|
24
|
|
|
Section
3.05
|
Redemption
of Debt Securities for Sinking Fund.
|
24
|
|
|
Article
IV. PARTICULAR COVENANTS OF THE ISSUERS
|
25
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||
|
Section
4.01
|
Payment
of Principal of, and Premium, If Any, and Interest on, Debt
Securities.
|
25
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|
|
Section
4.02
|
Maintenance
of Offices or Agencies for Registration of Transfer, Exchange and
Payment
of Debt Securities.
|
26
|
|
|
Section
4.03
|
Appointment
to Fill a Vacancy in the Office of Trustee.
|
26
|
|
|
Section
4.04
|
Duties
of Paying Agents, etc.
|
26
|
|
|
Section
4.05
|
SEC
Reports; Financial Statements.
|
27
|
|
|
Section
4.06
|
Compliance
Certificate.
|
28
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|
|
Section
4.07
|
Further
Instruments and Acts.
|
29
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|
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Section
4.08
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Existence.
|
29
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|
|
Section
4.09
|
Maintenance
of Properties.
|
29
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|
|
Section
4.10
|
Payment
of Taxes and Other Claims.
|
29
|
|
|
Section
4.11
|
Waiver
of Certain Covenants.
|
29
|
|
|
Article
V. HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
|
30
|
||
|
Section
5.01
|
Issuers
to Furnish Trustee Information as to Names and Addresses of Holders;
Preservation of Information.
|
30
|
|
|
Section
5.02
|
Communications
to Holders.
|
30
|
|
|
Section
5.03
|
Reports
by Trustee.
|
30
|
|
|
Section
5.04
|
Record
Dates for Action by Holders.
|
31
|
|
|
Article
VI. REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF
DEFAULT
|
31
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|
Section
6.01
|
Events
of Default.
|
31
|
|
|
Section
6.02
|
Collection
of Debt by Trustee, etc.
|
33
|
|
|
Section
6.03
|
Application
of Moneys Collected by Trustee.
|
34
|
|
|
Section
6.04
|
Limitation
on Suits by Holders.
|
35
|
|
|
Section
6.05
|
Remedies
Cumulative; Delay or Omission in Exercise of Rights Not a Waiver
of
Default.
|
36
|
|
|
Section
6.06
|
Rights
of Holders of Majority in Principal Amount of Debt Securities to
Direct
Trustee and to Waive Default.
|
36
|
|
|
Section
6.07
|
Trustee
to Give Notice of Events of Defaults Known to It, but May Withhold
Such
Notice in Certain Circumstances.
|
37
|
|
|
Section
6.08
|
Requirement
of an Undertaking to Pay Costs in Certain Suits under the Indenture
or
Against the Trustee.
|
37
|
|
|
Article
VII. CONCERNING THE TRUSTEE
|
37
|
||
|
Section
7.01
|
Certain
Duties and Responsibilities.
|
37
|
|
|
Section
7.02
|
Certain
Rights of Trustee. Except as otherwise provided in Section
7.01:
|
39
|
|
|
Section
7.03
|
Trustee
Not Liable for Recitals in Indenture or in Debt
Securities.
|
40
|
|
|
Section
7.04
|
Trustee,
Paying Agent or Registrar May Own Debt Securities.
|
40
|
|
|
Section
7.05
|
Moneys
Received by Trustee to Be Held in Trust.
|
40
|
|
|
Section
7.06
|
Compensation
and Reimbursement.
|
40
|
|
|
Section
7.07
|
Right
of Trustee to Rely on an Officers’ Certificate Where No Other Evidence
Specifically Prescribed.
|
41
|
|
|
Section
7.08
|
Separate
Trustee; Replacement of Trustee.
|
41
|
|
|
Section
7.09
|
Successor
Trustee by Merger.
|
42
|
|
|
Section
7.10
|
Eligibility;
Disqualification.
|
43
|
|
|
Section
7.11
|
Preferential
Collection of Claims Against Issuers.
|
43
|
|
|
Section
7.12
|
.Compliance
with Tax Laws.
|
43
|
|
|
Article
VIII. CONCERNING THE HOLDERS
|
43
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||
|
Section
8.01
|
Evidence
of Action by Holders.
|
43
|
|
|
Section
8.02
|
Proof
of Execution of Instruments and of Holding of Debt
Securities.
|
43
|
|
|
Section
8.03
|
Who
May Be Deemed Owner of Debt Securities.
|
44
|
|
|
Section
8.04
|
Instruments
Executed by Holders Bind Future Holders.
|
44
|
|
|
Article
IX. SUPPLEMENTAL INDENTURES
|
45
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||
|
Section
9.01
|
Purposes
for Which Supplemental Indenture May Be Entered into Without Consent
of
Holders.
|
45
|
|
|
Section
9.02
|
Modification
of Indenture with Consent of Holders of Debt Securities.
|
47
|
|
|
Section
9.03
|
Effect
of Supplemental Indentures.
|
48
|
|
|
Section
9.04
|
Debt
Securities May Bear Notation of Changes by Supplemental
Indentures.
|
48
|
|
|
Article
X. CONSOLIDATION, MERGER, SALE OR CONVEYANCE
|
49
|
||
|
Section
10.01
|
Consolidations
and Mergers of the Issuers.
|
49
|
|
|
Section
10.02
|
Rights
and Duties of Successor Company.
|
49
|
|
|
Article
XI. SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED
MONEYS
|
50
|
||
|
Section
11.01
|
Applicability
of Article.
|
50
|
|
|
Section
11.02
|
Satisfaction
and Discharge of Indenture; Defeasance.
|
50
|
|
|
Section
11.03
|
Conditions
of Defeasance.
|
51
|
|
|
Section
11.04
|
Application
of Trust Money.
|
52
|
|
|
Section
11.05
|
Repayment
to Issuers.
|
52
|
|
|
Section
11.06
|
Indemnity
for U.S. Government Obligations.
|
52
|
|
|
Section
11.07
|
Reinstatement.
|
53
|
|
|
Article
XII. SUBORDINATION OF DEBT SECURITIES AND GUARANTEE
|
53
|
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|
Section
12.01
|
Applicability
of Article; Agreement to Subordinate.
|
53
|
|
|
Section
12.02
|
Liquidation,
Dissolution, Bankruptcy.
|
53
|
|
|
Section
12.03
|
Default
on Senior Indebtedness.
|
54
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|
|
Section
12.04
|
Acceleration
of Payment of Debt Securities.
|
55
|
|
|
Section
12.05
|
When
Distribution Must Be Paid Over.
|
55
|
|
|
Section
12.06
|
Subrogation.
|
55
|
|
|
Section
12.07
|
Relative
Rights.
|
55
|
|
|
Section
12.08
|
Subordination
May Not Be Impaired by Issuers.
|
55
|
|
|
Section
12.09
|
Rights
of Trustee and Paying Agent.
|
55
|
|
|
Section
12.10
|
Distribution
or Notice to Representative.
|
56
|
|
|
Section
12.11
|
Article
XII Not to Prevent Defaults or Limit Right to Accelerate.
|
56
|
|
|
Section
12.12
|
Trust
Moneys Not Subordinated.
|
56
|
|
|
Section
12.13
|
Trustee
Entitled to Rely.
|
56
|
|
|
Section
12.14
|
Trustee
to Effectuate Subordination.
|
57
|
|
|
Section
12.15
|
Trustee
Not Fiduciary for Holders of Senior Indebtedness.
|
57
|
|
|
Section
12.16
|
Reliance
by Holders of Senior Indebtedness on Subordination
Provisions.
|
57
|
|
|
Article
XIII. MISCELLANEOUS PROVISIONS
|
57
|
||
|
Section
13.01
|
Successors
and Assigns of Issuers Bound by Indenture.
|
57
|
|
|
Section
13.02
|
Acts
of Board, Committee or Officer of Successor Issuer Valid.
|
57
|
|
|
Section
13.03
|
Required
Notices or Demands.
|
57
|
|
|
Section
13.04
|
Indenture
and Debt Securities to Be Construed in Accordance with the Laws
of the
State of New York.
|
59
|
|
|
Section
13.05
|
Officers’
Certificate and Opinion of Counsel to Be Furnished upon Application
or
Demand by the Issuers.
|
59
|
|
|
Section
13.06
|
Payments
Due on Legal Holidays.
|
59
|
|
|
Section
13.07
|
Provisions
Required by TIA to Control.
|
59
|
|
|
Section
13.08
|
Computation
of Interest on Debt Securities.
|
59
|
|
|
Section
13.09
|
Rules
by Trustee, Paying Agent and Registrar.
|
60
|
|
|
Section
13.10
|
No
Recourse Against Others.
|
60
|
|
|
Section
13.11
|
Severability.
|
60
|
|
|
Section
13.12
|
Effect
of Headings.
|
60
|
|
|
Section
13.13
|
Indenture
May Be Executed in Counterparts.
|
60
|
|
|
Article
XIV. GUARANTEE
|
60
|
||
|
Section
14.01
|
Unconditional
Guarantee.
|
60
|
|
|
Section
14.02
|
Execution
and Delivery of Guarantee.
|
62
|
|
|
Section
14.03
|
Limitation
on Subsidiary Guarantors’ Liability.
|
63
|
|
|
Section
14.04
|
Release
of Subsidiary Guarantors from Guarantee.
|
63
|
|
|
Section
14.05
|
Subsidiary
Guarantor Contribution.
|
64
|
|
THIS
INDENTURE dated as of is among EV Energy Partners, L.P., a Delaware limited
partnership (the “Partnership”), EV Energy Finance Corp. (“Finance Corp.,” and
together with the Partnership, the “Issuers”), any Subsidiary Guarantors (as
defined herein party hereto and [ ], a , as trustee (the
“Trustee”).
RECITALS
OF THE ISSUERS AND ANY SUBSIDIARY GUARANTORS
The
Issuers and any Subsidiary Guarantors have duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of
the
Issuers’ debentures, notes, bonds or other evidences of indebtedness to be
issued in one or more series unlimited as to principal amount (herein called
the
“Debt Securities”), which Debt Securities may be guaranteed by each of the
Subsidiary Guarantors an may be subordinated in right of payment to Senior
Indebtedness, as in this Indenture provided.
All
things necessary to make this Indenture a valid agreement of the Issuers and
any
Subsidiary Guarantors, in accordance with its terms, have been
done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH
That
in
order to declare the terms and conditions upon which the Debt Securities are
authenticated, issued and delivered, and in consideration of the premises,
and
of the purchase and acceptance of the Debt Securities by the Holders thereof,
the Issuers, any Subsidiary Guarantor and the Trustee covenant and agree with
each other, for the benefit of the respective Holders from time to time of
the
Debt Securities or any series thereof, as follows:
ARTICLE
I.
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section
1.01 Definitions.
“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control” when used
with respect to any specified 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 foregoing. The
Trustee may request and may conclusively rely upon an Officers’ Certificate to
determine whether any Person is an Affiliate of any specified
Person.
“Agent”
means any Registrar or paying agent.
“Bankruptcy
Law” means Title 11, U.S. Code or any similar federal or state law for the
relief of debtors.
“Board
of
Directors” means, (i) with respect to Finance Corp., the board of directors of
the corporation or any committee thereof duly authorized to act on behalf of
such board, (ii) with respect to the Partnership, the Board of Directors of
the
General Partner or any authorized committee of the Board of Directors of the
General Partner or any directors and/or officers of the General Partner to
whom
such Board of Directors or such committee shall have duly delegated its
authority to act hereunder. If the Partnership shall change its form of entity
to other than a limited partnership, the references to the Board of Directors
of
the General Partner shall mean the Board of Directors (or other comparable
governing body) of the Partnership.
-1-
“Business
Day” means any day other than a Legal Holiday.
“Capital
Stock” of any Person means and includes any and all shares, rights to purchase,
warrants or options (whether or not currently exercisable), participations
or
other equivalents of or interests in (however designated) the equity (which
includes, but is not limited to, common stock, preferred stock and partnership
and joint venture interests) of such Person (excluding any debt securities
that
are convertible into, or exchangeable for, such equity).
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under
any
Bankruptcy Law.
“Debt”
of
any Person at any date means any obligation created or assumed by such Person
for the repayment of borrowed money and any guarantee thereof.
“Debt
Security” or “Debt Securities” has the meaning stated in the first recital of
this Indenture and more particularly means any debt security or debt securities,
as the case may be of any series authenticated and delivered under this
Indenture.
“Default”
means any event, act or condition that is, or after notice or the passage of
time or both would be, an Event of Default.
“Depositary”
means, unless otherwise specified by the Issuers pursuant to either Section
2.03
or Section 2.15, with respect to Debt Securities of any series issuable or
issued in whole or in part in the form of one or more Global Securities, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency under the Exchange Act or other applicable
statute or regulations.
“Designated
Senior Indebtedness” means (i) any Senior Indebtedness which, at the date of
determination, has an aggregate principal amount outstanding of, or under which,
at the date of determination, the holders thereof are committed to lend up
to,
at least $100 million and (ii) any other Senior Indebtedness designated, as
provided in Section 2.03, in respect of any series of Debt
Securities.
“Dollar”
or “$” means such currency of the United States as at the time of payment is
legal tender for the payment of public and private debts.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and any successor
statute.
-2-
“Finance
Corp.” means the Person named as “Finance Corp.” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the
applicable terms of this Indenture, and thereafter “Finance Corp.” shall mean
such successor Person.
“Floating
Rate Security” means a Debt Security that provides for the payment of interest
at a variable rate determined periodically by reference to an interest rate
index specified pursuant to Section 2.03.
“GAAP”
means generally accepted accounting principles in the United States, as in
effect from time to time.
“General
Partner” means EV Management, LLC, a Delaware limited liability company, and its
successors and permitted assigns as general partner of EV Energy GP, L.P.,
a
Delaware limited partnership, and its successors and permitted assigns as
general partner of the Partnership or as the business entity with the ultimate
authority to manage the business and operations of the Partnership.
“Global
Security” means with respect to any series of Debt Securities issued hereunder,
a Debt Security which is executed by the Issuers and authenticated and delivered
by the Trustee to the Depositary or pursuant to the Depositary’s instruction,
all in accordance with this Indenture and any Indentures supplemental hereto,
or
resolution of the Board of Directors and set forth in an Officers’ Certificate,
which shall be registered in the name of the Depositary or its nominee and
which
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all the Outstanding Debt Securities of such series or
any
portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal
is
due and interest rate or method of determining interest.
“Guarantee”
means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Debt or other obligation of any other Person and
any
obligation, direct or indirect, contingent or otherwise, of such Person (a)
to
purchase or pay (or advance or supply funds for the purchase or payment of)
such
Debt or other obligation of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for purposes of assuring
in any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole
or
in part); provided, however, that the term “guarantee” shall not include
endorsements for collection or deposit in the ordinary course of business.
The
term “guarantee” used as a verb has a corresponding meaning.
“Holder,”
“Holder of Debt Securities” or other similar terms means, a Person in whose name
a Debt Security is registered in the Debt Security Register (as defined in
Section 2.07(a)).
“Indenture”
means this instrument as originally executed, or, if amended or supplemented
as
herein provided, as so amended or supplemented and shall include the form and
terms of particular series of Debt Securities as contemplated hereunder, whether
or not a supplemental Indenture is entered into with respect
thereto.
“Issuers”
means the Partnership and Finance Corp.
-3-
“Issuer
Order” means a written request or order signed on behalf of each of the Issuers
by one of its Officers and delivered to the Trustee.
“Legal
Holiday” means a Saturday, a Sunday or a day on which banking institutions in
the City of Houston, Texas, City of New York, New York 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 for the intervening period.
“Lien”
means, with respect to any asset, any mortgage, lien, security interest, pledge,
charge or other encumbrance of any kind in respect of such asset, whether or
not
filed, recorded or otherwise perfected under applicable law.
“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the
Secretary or any Vice President of such Person (or, if such Person is a limited
partnership, the general partner of such Person, except it shall be the General
Partner in the case of the Partnership so long as it is a limited
partnership).
“Officers’
Certificate” means a certificate signed on behalf of each Issuer by any two of
its Officers, one of whom must be the principal executive officer, the principal
financial officer or the principal accounting officer of such Issuer, that
meets
the requirements of Section 13.05 hereof.
“Opinion
of Counsel” means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Partnership or
the
Trustee.
“Original
Issue Discount Debt Security” means any Debt Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section
6.01.
“Outstanding,”
when used with respect to any series of Debt Securities, means, as of the date
of determination, all Debt Securities of that series theretofore authenticated
and delivered under this Indenture, except:
(a) Debt
Securities of that series theretofore canceled by the Trustee or delivered
to
the Trustee for cancellation;
(b) Debt
Securities of that series for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any paying agent
(other than an Issuer) in trust or set aside and segregated in trust by the
Issuers (if an Issuer shall act as its own paying agent) for the Holders of
such
Debt Securities; provided, that, if such Debt Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(c) Debt
Securities of that series which have been paid pursuant to Section 2.09 or
in
exchange for or in lieu of which other Debt Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Debt Securities
in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Debt Securities are held by a protected purchaser
in whose hands such Debt Securities are valid obligations of the
Issuers;
-4-
provided,
however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Debt Securities of any series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Debt
Securities owned by either of the Issuers or any other obligor upon the Debt
Securities or any Affiliate of the Partnership or of such other obligor shall
be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
a Trust Officer actually knows to be so owned shall be so disregarded. Debt
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Debt Securities and that the
pledgee is not an Issuer or any other obligor upon the Debt Securities or an
Affiliate of the Partnership or of such other obligor. In determining whether
the Holders of the requisite principal amount of Outstanding Debt Securities
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue Discount Debt
Security that shall be deemed to be Outstanding for such purposes shall be
the
amount of the principal thereof that would be due and payable as of the date
of
such determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.01.
“Partnership”
means the Person named as the “Partnership” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Partnership” shall mean
such successor Person.
“Person”
means any individual, corporation, partnership, joint venture, limited liability
company, incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
“Redemption
Date,” when used with respect to any Debt Security to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture.
“Representative”
means the trustee, agent or representative (if any) for an issue of Senior
Debt.
“SEC”
means the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended, and any successor
statute.
“Senior
Indebtedness,” unless otherwise provided with respect to the Debt Securities of
a series as contemplated by Section 2.03, means (1) all Debt of the Subsidiary
Guarantors or the Issuers, whether currently outstanding or hereafter issued,
unless, by the terms of the instrument creating or evidencing such Debt, it
is
provided that such Debt is subordinate or not superior in right of payment
to
the Debt Securities, in the case of the Issuers, or the Guarantee, in the case
of the Subsidiary Guarantors, or to other Debt which is pari passu with or
subordinated to the Debt Securities, in the case of the Issuers, or the
Guarantee, in the case of the Subsidiary Guarantors, and (2) any modifications,
refunding, deferrals, renewals, or extensions of any such Debt or securities,
notes or other evidence of Debt issued in exchange for such Debt; provided
that
in no event shall “Senior Indebtedness” include (a) Debt evidenced by the Debt
Securities or any Guarantee, (b) Debt of any of the Subsidiary Guarantors or
the
Issuers owed or owing to any Subsidiary of the Partnership, (c) Debt of any
of
the Subsidiary Guarantors owed or owing to the Issuers, (d) Debt to trade
creditors, (e) any liability for taxes owed or owing by any of the Subsidiary
Guarantors or the Issuers or (f) Debt of any Subsidiary Guarantor in the event
there is no series of Debt Securities Outstanding that is entitled to the
benefits of a Guarantee.
-5-
“Stated
Maturity” means, with respect to any security, the date specified in such
security as the fixed date on which the payment of principal of such security
is
due and payable, including pursuant to any mandatory redemption provision (but
excluding any provision providing for the repurchase of such security at the
option of the holder thereof upon the happening of any contingency beyond the
control of the issuer unless such contingency has occurred).
“Subsidiary”
of any Person means:
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(1)
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any
corporation, association or other business entity of which more than
50%
of the total voting power of equity interests entitled, without regard
to
the occurrence of any contingency, to vote in the election of directors,
managers, trustees or equivalent Persons thereof is at the time of
determination owned or controlled, directly or indirectly, by such
Person
or one or more of the other Subsidiaries of such Person or combination
thereof; or
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(2)
|
in
the case of a partnership, more than 50% of the partners’ equity
interests, considering all partners’ equity interests as a single class,
is at such time of determination owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries
of
such Person or combination thereof.
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“Subsidiary
Guarantors” means any Subsidiary of the Partnership (except Finance Corp.) who
may execute this Indenture, or a supplement hereto, for the purpose of providing
a Guarantee of Debt Securities pursuant to this Indenture until a successor
Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Subsidiary Guarantors” shall mean such successor
Person.
“TIA”
means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb),
as in effect on the date of this Indenture as originally executed and, to the
extent required by law, as amended.
“Trustee”
initially means [ ] and any other Person or Persons appointed as such from
time
to time pursuant to Section 7.08, and, subject to the provisions of Article
VII,
includes its or their successors and assigns. If at any time there is more
than
one such Person, “Trustee” as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to the Debt Securities of that
series.
-6-
“Trust
Officer” means any officer or assistant officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
“United
States” means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
“U.S.
Government Obligations” means direct obligations of the United States of
America, obligations on which the payment of principal and interest is fully
guaranteed by the United States of America or obligations or guarantees for
the
payment of which the full faith and credit of the United States of America
is
pledged.
“Yield
to
Maturity” means the yield to maturity, calculated at the time of issuance of a
series of Debt Securities, or, if applicable, at the most recent redetermination
of interest on such series and calculated in accordance with accepted financial
practice.
Section
1.02 Other
Definitions.
|
Term
|
Defined
in Section
|
|
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‘Debt
Security Register”
|
Section
2.07
|
|
|
“Defaulted
Interest”
|
Section
2.17
|
|
|
“Events
of Default”
|
Section
6.01
|
|
|
“Funding
Guarantor”
|
Section
14.05
|
|
|
“Guarantee”
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Section
14.01
|
|
|
“Place
of Payment”
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Section
2.03
|
|
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“Registrar”
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Section
2.07
|
|
|
“Successor
Company”
|
Section
10.01
|
Section
1.03 Incorporation
by Reference of Trust Indenture Act.
Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
All
terms
used in this Indenture that are defined by the TIA, defined by TIA reference
to
another statute or defined by SEC rule under the TIA have the meanings so
assigned to them.
Section
1.04 Rules
of Construction.
Unless
the context otherwise requires:
|
(a)
|
a
term has the meaning assigned to
it;
|
|
(b)
|
an
accounting term not otherwise defined has the meaning assigned to
it in
accordance with GAAP;
|
|
(c)
|
“or”
is not exclusive;
|
|
(d)
|
words
in the singular include the plural, and in the plural include the
singular;
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-7-
|
(e)
|
provisions
apply to successive events and
transactions;
|
|
(f)
|
if
the applicable series of Debt Securities are subordinated pursuant
to
Article VII, unsecured Debt shall not be deemed to be subordinate
or
junior to secured Debt merely by virtue of its nature as unsecured
Debt;
and
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(g)
|
the
principal amount of any noninterest bearing or other discount security
at
any date shall be the principal amount thereof that would be shown
on a
balance sheet of the issuer dated such date prepared in accordance
with
GAAP.
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ARTICLE
II.
DEBT
SECURITIES
Section
2.01 Forms
Generally.
The
Debt
Securities of each series shall be in substantially the form established without
the approval of any Holder by or pursuant to a resolution of the Board of
Directors of each Issuer or in one or more Indentures supplemental hereto,
in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as the Issuers may deem appropriate (and, if not
contained in a supplemental Indenture entered into in accordance with Article
IX, as are not prohibited by the provisions of this Indenture) or as may be
required or appropriate to comply with any law or with any rules made pursuant
thereto or with any rules of any securities exchange on which such series of
Debt Securities may be listed, or to conform to general usage, or as may,
consistently herewith, be determined by the officers executing such Debt
Securities as evidenced by their execution of the Debt Securities.
The
definitive Debt Securities of each series shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner,
all
as determined by the officers executing such Debt Securities, as evidenced
by
their execution of such Debt Securities.
Section
2.02 Form
of Trustee’s Certificate of Authentication.
The
Trustee’s certificate of authentication on all Debt Securities authenticated by
the Trustee shall be in substantially the following form:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Debt Securities of the series designated therein referred to in
the
within-mentioned Indenture.
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[_________________________],
As
Trustee
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||
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| By: | ||
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Authorized Signatory |
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-8-
Section
2.03 Principal
Amount; Issuable in Series.
The
aggregate principal amount of Debt Securities which may be issued, executed,
authenticated, delivered and outstanding under this Indenture is
unlimited.
The
Debt
Securities may be issued in one or more series in fully registered form. There
shall be established, without the approval of any Holders, in or pursuant to
a
resolution of the Board of Directors of each Issuer and set forth in an
Officers’ Certificate, or established in one or more Indentures supplemental
hereto, prior to the issuance of Debt Securities of any series any or all of
the
following:
(a) the
title
of the Debt Securities of the series (which shall distinguish the Debt
Securities of the series from all other Debt Securities);
(b) any
limit
upon the aggregate principal amount of the Debt Securities of the series which
may be authenticated and delivered under this Indenture (except for Debt
Securities authenticated and delivered upon registration of transfer of, or
in
exchange for, or in lieu of, other Debt Securities of the series pursuant to
this Article II);
(c) the
date
or dates on which the principal of and premium, if any, on the Debt Securities
of the series are payable;
(d) the
rate
or rates (which may be fixed or variable) at which the Debt Securities of the
series shall bear interest, if any, or the method of determining such rate
or
rates, the date or dates from which such interest shall accrue, the interest
payment dates on which such interest shall be payable, or the method by which
such date will be determined, the record dates for the determination of Holders
thereof to whom such interest is payable; and the basis upon which interest
will
be calculated if other than that of a 360-day year of twelve thirty-day
months;
(e) the
place
or places, if any, in addition to or instead of the corporate trust office
of
the Trustee, where the principal of, and premium, if any, and interest on,
Debt
Securities of the series shall be payable (“Place of Payment”);
(f) the
price
or prices at which, the period or periods within which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in whole
or
in part, at the option of the Issuers or otherwise;
(g) whether
Debt Securities of the series are entitled to the benefits of any Guarantee
of
any Subsidiary Guarantors pursuant to this Indenture;
(h) the
obligation, if any, of the Issuers to redeem, purchase or repay Debt Securities
of the series pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof, and the price or prices at which and the period
or
periods within which and the terms and conditions upon which Debt Securities
of
the series shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligations;
(i) the
terms, if any, upon which the Debt Securities of the series may be convertible
into or exchanged for capital stock (which may be represented by depositary
shares), other Debt Securities or warrants for capital stock or Debt or other
securities of any kind of either of the Issuers or any other obligor and the
terms and conditions upon which such conversion or exchange shall be effected,
including the initial conversion or exchange price or rate, the conversion
or
exchange period and any other provision in addition to or in lieu of those
described herein;
-9-
(j) if
other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which Debt Securities of the series shall be
issuable;
(k) if
the
amount of principal of or any premium or interest on Debt Securities of the
series may be determined with reference to an index or pursuant to a formula,
the manner in which such amounts will be determined;
(l) if
the
principal amount payable at the Stated Maturity of Debt Securities of the series
will not be determinable as of any one or more dates prior to such Stated
Maturity, the amount which will be deemed to be such principal amount as of
any
such date for any purpose, including the principal amount thereof which will
be
due and payable upon any maturity other than the Stated Maturity or which will
be deemed to be Outstanding as of any such date (or, in any such case, the
manner in which such deemed principal amount is to be determined);
(m) any
changes or additions to Article XI, including the addition of additional
covenants that may be subject to the covenant defeasance option pursuant to
Section 11.02(b);
(n) if
other
than the principal amount thereof, the portion of the principal amount of Debt
Securities of the series which shall be payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.01 or provable in bankruptcy
pursuant to Section 6.02;
(o) the
terms, if any, of the transfer, mortgage, pledge or assignment as security
for
the Debt Securities of the series of any properties, assets, moneys, proceeds,
securities or other collateral, including whether certain provisions of the
TIA
are applicable and any corresponding changes to provisions of this Indenture
as
currently in effect;
(p) any
addition to or change in the Events of Default with respect to the Debt
Securities of the series and any change in the right of the Trustee or the
Holders to declare the principal of, and premium and interest on, such Debt
Securities due and payable;
(q) if
the
Debt Securities of the series shall be issued in whole or in part in the form
of
a Global Security or Securities, the terms and conditions, if any, upon which
such Global Security or Securities may be exchanged in whole or in part for
other individual Debt Securities in definitive registered form; and the
Depositary for such Global Security or Securities and the form of any legend
or
legends to be borne by any such Global Security or Securities in addition to
or
in lieu of the legend referred to in Section 2.15(a);
-10-
(r) any
trustees, authenticating or paying agents, transfer agents or
registrars;
(s) the
applicability of, and any addition to or change in the covenants and definitions
currently set forth in this Indenture or in the terms currently set forth in
Article X, including conditioning any merger, conveyance, transfer or lease
permitted by Article X upon the satisfaction of any Debt coverage standard
by
the Issuers and Successor Company (as defined in Article X);
(t) the
subordination, if any, of the Debt Securities of the series pursuant to Article
XII and any changes or additions to Article XII or designation of any Designated
Senior Indebtedness;
(u) with
regard to Debt Securities of the series that do not bear interest, the dates
for
certain required reports to the Trustee; and
(v) any
other
terms of the Debt Securities of the series (which terms shall not be prohibited
by the provisions of this Indenture).
All
Debt
Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors and as set forth in such Officers’
Certificate or in any such Indenture supplemental hereto.
Section
2.04 Execution
of Debt Securities.
The
Debt
Securities shall be signed on behalf of each of the Issuers by at least one
of
its Officers. Such signatures upon the Debt Securities may be the manual or
facsimile signatures of the present or any future such authorized officers
and
may be imprinted or otherwise reproduced on the Debt Securities.
Only
such
Debt Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, signed manually by the Trustee,
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee upon any Debt Security executed
on behalf of each of the Issuers by at least one of its Officers shall be
conclusive evidence that the Debt Security so authenticated has been duly
authenticated and delivered hereunder.
In
case
any Officer of either Issuer who shall have signed any of the Debt Securities
shall cease to be such Officer before the Debt Securities so signed shall have
been authenticated and delivered by the Trustee, or disposed of by the Issuers,
such Debt Securities nevertheless may be authenticated and delivered or disposed
of as though the Person who signed such Debt Securities had not ceased to be
such Officer; and any Debt Security may be signed on behalf of either Issuer
by
such Persons as, at the actual date of the execution of such Debt Security,
shall be the proper Officers of such Issuer, although at the date of such Debt
Security or of the execution of this Indenture any such Person was not such
Officer.
Section
2.05 Authentication
and Delivery of Debt Securities.
At
any
time and from time to time after the execution and delivery of this Indenture,
the Issuers may deliver to the Trustee for authentication Debt Securities of
any
series executed by the Issuers, and the Trustee shall thereupon authenticate
and
deliver said Debt Securities to or upon an Issuer Order. In authenticating
such
Debt Securities, and accepting the additional responsibilities under this
Indenture in relation to such Debt Securities, the Trustee shall be entitled
to
receive, and (subject to Section 7.01) shall be fully protected in relying
upon:
(a) a
copy of
any resolution or resolutions of the Board of Directors of each Issuer,
certified by the Secretary or Assistant Secretary of each of the General Partner
and Finance Corp., authorizing the terms of issuance of any series of Debt
Securities;
-11-
(b) an
executed supplemental Indenture, if any;
(c) an
Officers’ Certificate; and
(d) an
Opinion of Counsel prepared in accordance with Section 12.05 which shall also
state:
(i) that
the
form of such Debt Securities has been established by or pursuant to a resolution
of the Board of Directors of each Issuer or by a supplemental Indenture as
permitted by Section 2.01 in conformity with the provisions of this
Indenture;
(ii) that
the
terms of such Debt Securities have been established by or pursuant to a
resolution of the Board of Directors or by a supplemental Indenture as permitted
by Section 2.03 in conformity with the provisions of this
Indenture;
(iii) that
such
Debt Securities, when authenticated and delivered by the Trustee and issued
by
the Issuers in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of
the
Issuers, enforceable in accordance with their terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
the
enforcement of creditors’ rights generally and rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability;
(iv) that
the
Issuers have the power to issue such Debt Securities and has duly taken all
necessary action with respect to such issuance;
(v) that
the
issuance of such Debt Securities will not contravene the organizational
documents of the Issuers or result in any material violation of any of the
terms
or provisions of any law or regulation or of any material indenture, mortgage
or
other agreement known to such counsel by which the Issuers are
bound;
(vi) that
authentication and delivery of such Debt Securities and the execution and
delivery of any supplemental Indenture will not violate the terms of this
Indenture; and
(vii) such
other matters as the Trustee may reasonably request.
-12-
Such
Opinion of Counsel need express no opinion as to whether a court in the United
States would render a money judgment in a currency other than that of the United
States.
The
Trustee shall have the right to decline to authenticate and deliver any Debt
Securities under this Section 2.05 if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in
good
faith by its board of directors or trustees, executive committee or a trust
committee of directors, trustees or Officers (or any combination thereof) shall
determine that such action would expose the Trustee to personal liability to
existing Holders.
The
Trustee may appoint an authenticating agent reasonably acceptable to the Issuers
to authenticate Debt Securities of any series. Unless limited by the terms
of
such appointment, an authenticating agent may authenticate Debt 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 any Registrar, paying agent or
agent
for service of notices and demands.
Unless
otherwise provided in the form of Debt Security for any series, each Debt
Security shall be dated the date of its authentication.
Section
2.06 Denomination
of Debt Securities.
Unless
otherwise provided in the form of Debt Security for any series, the Debt
Securities of each series shall be issuable only as fully registered Debt
Securities in such Dollar denominations as shall be specified or contemplated
by
Section 2.03. In the absence of any such specification with respect to the
Debt
Securities of any series, the Debt Securities of such series shall be issuable
in denominations of $1,000 and any integral multiple thereof.
Section
2.07 Registration
of Transfer and Exchange.
(a) The
Issuers shall keep or cause to be kept a register for each series of Debt
Securities issued hereunder (hereinafter collectively referred to as the “Debt
Security Register”), in which, subject to such reasonable regulations as it may
prescribe, the Issuers shall provide for the registration of all Debt Securities
and the transfer of Debt Securities as in this Article II provided. At all
reasonable times the Debt Security Register shall be open for inspection by
the
Trustee. Subject to Section 2.15, upon due presentment for registration of
transfer of any Debt Security at any office or agency to be maintained by the
Issuers in accordance with the provisions of Section 4.02, the Issuers shall
execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Debt Security or Debt Securities of authorized
denominations for a like aggregate principal amount. In no event may Debt
Securities be issued as, exchanged for, bearer securities.
Unless
and until otherwise determined by the Issuers by resolutions of each Issuer’s
Board of Directors, the Debt Security Register shall be kept at the principal
corporate trust office of the Trustee and, for this purpose, the Trustee shall
be designated “Registrar.”
Debt
Securities of any series (other than a Global Security, except as set forth
below) may be exchanged for a like aggregate principal amount of Debt Securities
of the same series of other authorized denominations. Subject to Section 2.15,
Debt Securities to be exchanged shall be surrendered at the office or agency
to
be maintained by the Issuers as provided in Section 4.02, and the Issuers shall
execute and the Trustee shall authenticate and deliver in exchange therefor
the
Debt Security or Debt Securities which the Holder making the exchange shall
be
entitled to receive.
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(b) All
Debt
Securities presented or surrendered for registration of transfer, exchange
or
payment shall (if so required by the Issuers, the Trustee or the Registrar)
be
duly endorsed or be accompanied by a written instrument or instruments of
transfer, in form satisfactory to the Issuers, the Trustee and the Registrar,
duly executed by the Holder or his attorney duly authorized in
writing.
All
Debt
Securities issued in exchange for or upon transfer of Debt Securities shall
be
the valid obligations of the Issuers, evidencing the same debt, and entitled
to
the same benefits under this Indenture as the Debt Securities surrendered for
such exchange or transfer.
No
service charge shall be made for any exchange or registration of transfer of
Debt Securities (except as provided by Section 2.09), but the Issuers may
require payment of a sum sufficient to cover any tax, fee, assessment or other
governmental charge that may be imposed in relation thereto, other than those
expressly provided in this Indenture to be made at the Issuers’ own expense or
without expense or without charge to the Holders.
The
Issuers shall not be required (i) to issue, register the transfer of or exchange
any Debt Securities for a period of 15 days next preceding any mailing of notice
of redemption of Debt Securities of such series or (ii) to register the transfer
of or exchange any Debt Securities selected, called or being called for
redemption.
Prior
to
the due presentation for registration of transfer of any Debt Security, the
Issuers, the Subsidiary Guarantors, the Trustee, any paying agent or any
Registrar may deem and treat the Person in whose name a Debt Security is
registered as the absolute owner of such Debt Security for the purpose of
receiving payment of or on account of the principal of, and premium, if any,
and
(subject to Section 2.12) interest on, such Debt Security and for all other
purposes whatsoever, whether or not such Debt Security is overdue, and none
of
the Issuers, the Subsidiary Guarantors, the Trustee, any paying agent or any
Registrar shall be affected by notice to the contrary.
None
of
the Issuers, the Subsidiary Guarantors, the Trustee, any agent of the Trustee,
any paying agent or any Registrar will have any responsibility or liability
for
any aspect of the records relating to, or payments made on account of,
beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section
2.08 Temporary
Debt Securities.
Pending
the preparation of definitive Debt Securities of any series, the Issuers may
execute and the Trustee shall authenticate and deliver temporary Debt Securities
(printed, lithographed, photocopied, typewritten or otherwise produced) of
any
authorized denomination, and substantially in the form of the definitive Debt
Securities in lieu of which they are issued, in registered form with such
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the Issuers with the concurrence of
the
Trustee. Temporary Debt Securities may contain such reference to any provisions
of this Indenture as may be appropriate. Every temporary Debt Security shall
be
executed by the Issuers and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Debt Securities.
-14-
If
temporary Debt Securities of any series are issued, the Issuers will cause
definitive Debt Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Debt Securities of such series,
the
temporary Debt Securities of such series shall be exchangeable for definitive
Debt Securities of such series upon surrender of the temporary Debt Securities
of such series at the office or agency of the Issuers at a Place of Payment
for
such series, without charge to the Holder thereof, except as provided in Section
2.07 in connection with a transfer. Upon surrender for cancellation of any
one
or more temporary Debt Securities of any series, the Issuers shall execute
and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor. Until so exchanged, temporary Debt Securities
of any series shall in all respects be entitled to the same benefits under
this
Indenture as definitive Debt Securities of such series.
Upon
any
exchange of a portion of a temporary Global Security for a definitive Global
Security or for the individual Debt Securities represented thereby pursuant
to
Section 2.07 or this Section 2.08, the temporary Global Security shall be
endorsed by the Trustee to reflect the reduction of the principal amount
evidenced thereby, whereupon the principal amount of such temporary Global
Security shall be reduced for all purposes by the amount to be exchanged and
endorsed.
Section
2.09 Mutilated,
Destroyed, Lost or Stolen Debt Securities.
If
(a)
any mutilated Debt Security is surrendered to the Trustee at its corporate
trust
office or (b) the Issuers and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Debt Security, and there is delivered
to the Issuers and the Trustee such security or indemnity as may be required
by
them to save each of them and any paying agent harmless, and neither the Issuers
nor the Trustee receives notice that such Debt Security has been acquired by
a
protected purchaser, then the Issuers shall execute and, upon an Issuer Order,
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Debt Security, a new Debt Security
of
the same series of like tenor, form, terms and principal amount, bearing a
number not contemporaneously Outstanding. Upon the issuance of any substituted
Debt Security, the Issuers or the Trustee may require the payment of a sum
sufficient to cover any tax, fee, assessment or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
In case any Debt Security which has matured or is about to mature or which
has
been called for redemption shall become mutilated or be destroyed, lost or
stolen, the Issuers may, instead of issuing a substituted Debt Security, pay
or
authorize the payment of the same (without surrender thereof except in the
case
of a mutilated Debt Security) if the applicant for such payment shall furnish
the Issuers and the Trustee with such security or indemnity as either may
require to save it harmless from all risk, however remote, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Issuers and
the
Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
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Every
substituted Debt Security of any series issued pursuant to the provisions of
this Section 2.09 by virtue of the fact that any Debt Security is destroyed,
lost or stolen shall constitute an original additional contractual obligation
of
the Issuers, whether or not the destroyed, lost or stolen Debt Security shall
be
found at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debt Securities of that
series duly issued hereunder. All Debt Securities shall be held and owned upon
the express condition that the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities, and shall preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
Section
2.10 Cancellation
of Surrendered Debt Securities.
All
Debt
Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to an Issuer or any paying agent or a Registrar,
be delivered to the Trustee for cancellation by it, or if surrendered to the
Trustee, shall be canceled by it, and no Debt Securities shall be issued in
lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. All canceled Debt Securities held by the Trustee shall be destroyed
(subject to the record retention requirements of the Exchange Act) and
certification of their destruction delivered to the Issuers, unless otherwise
directed. On request of the Issuers, the Trustee shall deliver to the Issuers
canceled Debt Securities held by the Trustee. If either of the Issuers shall
acquire any of the Debt Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the Debt represented thereby unless and
until
the same are delivered or surrendered to the Trustee for cancellation. The
Issuers may not issue new Debt Securities to replace Debt Securities it has
redeemed, paid or delivered to the Trustee for cancellation.
Section
2.11 Provisions
of the Indenture and Debt Securities for the Sole Benefit of the Parties and
the
Holders.
Nothing
in this Indenture or in the Debt Securities, expressed or implied, shall give
or
be construed to give to any Person, other than the parties hereto, the holders
of any Senior Indebtedness, the Holders or any Registrar or paying agent, any
legal or equitable right, remedy or claim under or in respect of this Indenture,
or under any covenant, condition or provision herein contained; all its
covenants, conditions and provisions being for the sole benefit of the parties
hereto, the Holders and any Registrar and paying agents.
Section
2.12 Payment
of Interest; Interest Rights Preserved.
(a) Interest
on any Debt Security that is payable and is punctually paid or duly provided
for
on any interest payment date shall be paid to the Person in whose name such
Debt
Security is registered at the close of business on the regular record date
for
such interest notwithstanding the cancellation of such Debt Security upon any
transfer or exchange subsequent to the regular record date. Payment of interest
on Debt Securities shall be made at the corporate trust office of the Trustee
(except as otherwise specified pursuant to Section 2.03), or at the option
of
the Issuers, by check mailed to the address of the Person entitled thereto
as
such address shall appear in the Debt Security Register or, if provided pursuant
to Section 2.03 and in accordance with arrangements satisfactory to the Trustee,
at the option of the Holder by wire transfer to an account designated by the
Holder.
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(b) Subject
to the foregoing provisions of this Section 2.12 and Section 2.17, each Debt
Security of a particular series delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Debt Security of
the
same series shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Debt Security.
Section
2.13 Securities
Denominated in Dollars.
Except
as
otherwise specified pursuant to Section 2.03 for Debt Securities of any series,
payment of the principal of, and premium, if any, and interest on, Debt
Securities of such series will be made in Dollars.
Section
2.14 Wire
Transfers.
Notwithstanding
any other provision to the contrary in this Indenture, the Issuers may make
any
payment of moneys required to be deposited with the Trustee on account of
principal of, or premium, if any, or interest on, the Debt Securities (whether
pursuant to optional or mandatory redemption payments, interest payments or
otherwise) by wire transfer in immediately available funds to an account
designated by the Trustee before 11:00 a.m., New York City time, on the date
such moneys are to be paid to the Holders of the Debt Securities in accordance
with the terms hereof.
Section
2.15 Securities
Issuable in the Form of a Global Security.
(a) If
the
Issuers shall establish pursuant to Section 2.01 and Section 2.03 that the
Debt
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Issuers shall execute and the
Trustee or its agent shall, in accordance with Section 2.05, authenticate and
deliver, such Global Security or Securities, which shall represent, and shall
be
denominated in an amount equal to the aggregate principal amount of, the
Outstanding Debt Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Issuers shall specify
in
an Officers’ Certificate, shall be registered in the name of the Depositary for
such Global Security or Securities or its nominee, shall be delivered by the
Trustee or its agent to the Depositary or pursuant to the Depositary’s
instruction and shall bear a legend substantially to the following
effect:
“UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO
HEREIN.”
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or
such
other legend as may then be required by the Depositary for such Global Security
or Securities.
(b) Notwithstanding
any other provision of this Section 2.15 or of Section 2.07 to the contrary,
and
subject to the provisions of paragraph (c) below, unless the terms of a Global
Security expressly permit such Global Security to be exchanged in whole or
in
part for definitive Debt Securities in registered form, a Global Security may
be
transferred, in whole but not in part and in the manner provided in Section
2.07, only by the Depositary to a nominee of the Depositary for such Global
Security, or by a nominee of the Depositary to the Depositary or another nominee
of the Depositary, or by the Depositary or a nominee of the Depositary to a
successor Depositary for such Global Security selected or approved by the
Issuers, or to a nominee of such successor Depositary.
(c) (i)
If at
any time the Depositary for a Global Security or Securities notifies the Issuers
that it is unwilling or unable to continue as Depositary for such Global
Security or Securities or if at any time the Depositary for the Debt Securities
for such series shall no longer be eligible or in good standing under the
Exchange Act or other applicable statute, rule or regulation, the Issuers shall
appoint a successor Depositary with respect to such Global Security or
Securities. If a successor Depositary for such Global Security or Securities
is
not appointed by the Issuers within 90 days after the Issuers receive such
notice or becomes aware of such ineligibility, the Issuers shall execute, and
the Trustee or its agent, upon receipt of an Issuer Order for the authentication
and delivery of such individual Debt Securities of such series in exchange
for
such Global Security or Securities, will authenticate and deliver, individual
Debt Securities of such series of like tenor and terms in definitive form in
an
aggregate principal amount equal to the principal amount of the Global Security
or Securities in exchange for such Global Security or Securities.
(ii) If
an
Event of Default occurs and the Depositary for a Global Security or Securities
notifies the Trustee of its decision to require that the Debt Securities of
any
series or portion thereof issued or issuable in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities,
the Issuers shall appoint a successor Depositary with respect to such Global
Security or Securities. In such event the Issuers will execute, and the Trustee,
upon receipt of an Issuer Order for the authentication and delivery of
individual Debt Securities of such series in exchange in whole or in part for
such Global Security or Securities, will authenticate and deliver individual
Debt Securities of such series of like tenor and terms in definitive form in
an
aggregate principal amount equal to the principal amount of such series or
portion thereof in exchange for such Global Security or Securities.
(iii) If
specified by the Issuers pursuant to Section 2.01 and Section 2.03 with respect
to Debt Securities issued or issuable in the form of a Global Security, the
Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Debt Securities of such series
of
like tenor and terms in definitive form on such terms as are acceptable to
the
Issuers, the Trustee and such Depositary. Thereupon the Issuers shall execute,
and the Trustee or its agent upon receipt of an Issuer Order for the
authentication and delivery of definitive Debt Securities of such series shall
authenticate and deliver, without service charge, to each Person specified
by
such Depositary a new Debt Security or Securities of the same series of like
tenor and terms and of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Person’s
beneficial interest in the Global Security; and to such Depositary a new Global
Security of like tenor and terms and in an authorized denomination equal to
the
difference, if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Debt Securities delivered to
Holders thereof.
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(iv) In
any
exchange provided for in any of the preceding three paragraphs, the Issuers
will
execute and the Trustee or its agent will authenticate and deliver individual
Debt Securities. Upon the exchange of the entire principal amount of a Global
Security for individual Debt Securities, such Global Security shall be canceled
by the Trustee or its agent. Except as provided in the preceding paragraph,
Debt
Securities issued in exchange for a Global Security pursuant to this Section
2.15 shall be registered in such names and in such authorized denominations
as
the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee or
the
Registrar. The Trustee or the Registrar shall deliver such Debt Securities
to
the Persons in whose names such Debt Securities are so registered.
(v) Payments
in respect of the principal of and interest on any Debt Securities registered
in
the name of the Depositary or its nominee will be payable to the Depositary
or
such nominee in its capacity as the registered owner of such Global Security.
The Issuers, any Subsidiary Guarantors and the Trustee may treat the Person
in
whose name the Debt Securities, including the Global Security, are registered
as
the owner thereof for the purpose of receiving such payments and for any and
all
other purposes whatsoever. None of the Issuers, any Subsidiary Guarantors,
the
Trustee, any Registrar, the paying agent or any agent of the Issuers, any
Subsidiary Guarantors or the Trustee will have any responsibility or liability
for any aspect of the records relating to or payments made on account of the
beneficial ownership interests of the Global Security by the Depositary or
its
nominee or any of the Depositary’s direct or indirect participants, or for
maintaining, supervising or reviewing any records of the Depositary, its nominee
or any of its direct or indirect participants relating to the beneficial
ownership interests of the Global Security, the payments to the beneficial
owners of the Global Security of amounts paid to the Depositary or its nominee,
or any other matter relating to the actions and practices of the Depositary,
its
nominee or any of its direct or indirect participants. None of the Issuers,
any
Subsidiary Guarantors, the Trustee or any such agent will be liable for any
delay by the Depositary, its nominee, or any of its direct or indirect
participants in identifying the beneficial owners of the Debt Securities, and
the Issuers, any Subsidiary Guarantors and the Trustee may conclusively rely
on,
and will be protected in relying on, instructions from the Depositary or its
nominee for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Debt Securities to be
issued).
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Section
2.16 Medium
Term Securities.
Notwithstanding
any contrary provision herein, if all Debt Securities of a series are not to
be
originally issued at one time, it shall not be necessary for each of the Issuers
to deliver to the Trustee an Officers’ Certificate, resolutions of each such
Issuer’s Board of Directors, supplemental Indenture, Opinion of Counsel or
written order or any other document otherwise required pursuant to Section
2.01,
Section 2.03, Section 2.05 or Section 13.05 at or prior to the time of
authentication of each Debt Security of such series if such documents are
delivered to the Trustee or its agent at or prior to the authentication upon
original issuance of the first such Debt Security of such series to be issued;
provided, that any subsequent request by the Issuers to the Trustee to
authenticate Debt Securities of such series upon original issuance shall
constitute a representation and warranty by the Issuers that, as of the date
of
such request, the statements made in the Officers’ Certificate delivered
pursuant to Section 2.05 or 13.05
shall be
true and correct as if made on such date and that the Opinion of Counsel
delivered at or prior to such time of authentication of an original issuance
of
Debt Securities shall specifically state that it shall relate to all subsequent
issuances of Debt Securities of such series that are identical to the Debt
Securities issued in the first issuance of Debt Securities of such
series.
An
Issuer
Order delivered by the Issuers to the Trustee in the circumstances set forth
in
the preceding paragraph, may provide that Debt Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time upon the telephonic or written order of Persons
designated in such written order (any such telephonic instructions to be
promptly confirmed in writing by such Person) and that such Persons are
authorized to determine, consistent with the Officers’ Certificate, supplemental
Indenture or resolution of the Board of Directors relating to such written
order, such terms and conditions of such Debt Securities as are specified in
such Officers’ Certificate, supplemental Indenture or such
resolution.
Section
2.17 Defaulted
Interest.
Any
interest on any Debt Security of a particular series which is payable, but
is
not punctually paid or duly provided for, on the dates and in the manner
provided in the Debt Securities of such series and in this Indenture (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the Holder
thereof on the relevant record date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Issuers, at their election in each
case, as provided in clause (i) or (ii) below:
(i) The
Issuers may elect to make payment of any Defaulted Interest to the Persons
in
whose names the Debt Securities of such series are registered at the close
of
business on a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Issuers shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on
each such Debt Security of such series and the date of the proposed payment,
and
at the same time the Issuers shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as
in this clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall be not more than 15
days
and not less than 10 days prior to the date of the proposed payment and not
less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Issuers of such special record
date and, in the name and at the expense of the Issuers, shall cause notice
of
the proposed payment of such Defaulted Interest and the special record date
therefor to be mailed, first class postage pre-paid, to each Holder thereof
at
its address as it appears in the Debt Security Register, not less than 10 days
prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the Debt
Securities of such series are registered at the close of business on such
special record date.
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(ii) The
Issuers may make payment of any Defaulted Interest on the Debt Securities of
such series in any other lawful manner not inconsistent with the requirements
of
any securities exchange on which the Debt Securities of such series may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Issuers to the Trustee of the proposed payment pursuant
to
this clause, such manner of payment shall be deemed practicable by the
Trustee.
Section
2.18 CUSIP
Numbers.
The
Issuers in issuing the Debt Securities may use “CUSIP” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the accuracy of such numbers either
as printed on the Debt 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 Debt Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Issuers will promptly notify the
Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE
III.
REDEMPTION
OF DEBT SECURITIES
Section
3.01 Applicability
of Article.
The
provisions of this Article shall be applicable to the Debt Securities of any
series which are redeemable before their Stated Maturity except as otherwise
specified as contemplated by Section 2.03 for Debt Securities of such
series.
Section
3.02 Notice
of
Redemption; Selection of Debt Securities.
In
case
the Issuers shall desire to exercise the right to redeem all or, as the case
may
be, any part of the Debt Securities of any series in accordance with their
terms, by resolution of the Board of Directors of each Issuer or a supplemental
Indenture, the Issuers shall fix a date for redemption and shall give notice
of
such redemption at least 30 and not more than 60 days prior to the date fixed
for redemption to the Holders of Debt Securities of such series so to be
redeemed as a whole or in part, in the manner provided in Section 13.03. The
notice if given in the manner herein provided shall be conclusively presumed
to
have been duly given, whether or not the Holder receives such notice. In any
case, failure to give such notice or any defect in the notice to the Holder
of
any Debt Security of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any
other
Debt Security of such series.
-21-
Each
such
notice of redemption shall specify (i) the date fixed for redemption, (ii)
the
redemption price at which Debt Securities of such series are to be redeemed
(or
the method of calculating such redemption price), (iii) the Place or Places
of
Payment that payment will be made upon presentation and surrender of such Debt
Securities, (iv) that any interest accrued to the date fixed for redemption
will
be paid as specified in said notice, (v) that the redemption is for a sinking
fund payment (if applicable), (vi) that, unless otherwise specified in such
notice, if the Issuers default in making such redemption payment or if the
Debt
Securities of that series are subordinated pursuant to the terms of Article
XII,
the paying agent is prohibited from making such payment pursuant to the terms
of
this Indenture, (vii) that on and after said date any interest thereon or on
the
portions thereof to be redeemed will cease to accrue, (viii) that in the case
of
Original Issue Discount Securities original issue discount accrued after the
date fixed for redemption will cease to accrue, (ix) the terms of the Debt
Securities of that series pursuant to which the Debt Securities of that series
are being redeemed and (x) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or printed on
the
Debt Securities of that series. If less than all the Debt Securities of a series
are to be redeemed the notice of redemption shall specify the certificate
numbers of any Debt Securities of that series to be redeemed that are not in
global form. In case any Debt Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Debt Security, a new Debt Security or Debt
Securities of that series in principal amount equal to the unredeemed portion
thereof, will be issued.
At
least
five days before the giving of any notice of redemption, unless the Trustee
consents to a shorter period, the Issuers shall give written notice to the
Trustee of the Redemption Date, the principal amount of Debt Securities to
be
redeemed and the series and terms of the Debt Securities pursuant to which
such
redemption will occur. Such notice shall be accompanied by an Officers’
Certificate and an Opinion of Counsel from the Issuers to the effect that such
redemption will comply with the conditions herein, and such notice may be
revoked at any time prior to the giving of a notice of redemption to the Holders
pursuant to this Section 3.02. If fewer than all the Debt Securities of a series
are to be redeemed, the record date relating to such redemption shall be
selected by the Issuers and given in writing to the Trustee, which record date
shall be not less than three days after the date of notice to the
Trustee.
By
11
a.m., New York City time, on the Redemption Date for any Debt Securities, the
Issuers shall deposit with the Trustee or with a paying agent (or, if an Issuer
is acting as its own paying agent, segregate and hold in trust) an amount of
money in Dollars (except as provided pursuant to Section 2.03) sufficient to
pay
the redemption price of such Debt Securities or any portions thereof that are
to
be redeemed on that date, together with any interest accrued to the Redemption
Date.
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If
less
than all the Debt Securities of like tenor and terms of a series are to be
redeemed (other than pursuant to mandatory sinking fund redemptions), the
Trustee shall select, on a pro rata basis, by lot or by such other method as
in
its sole discretion it shall deem appropriate and fair, the Debt Securities
of
that series or portions thereof (in multiples of $1,000) to be redeemed. In
any
case where more than one Debt Security of such series is registered in the
same
name, the Trustee in its discretion may treat the aggregate principal amount
so
registered as if it were represented by one Debt Security of such series. The
Trustee shall promptly notify the Issuers in writing of the Debt Securities
selected for redemption and, in the case of any Debt Securities selected for
partial redemption, the principal amount thereof to be redeemed. If any Debt
Security called for redemption shall not be so paid upon surrender thereof on
such Redemption Date, the principal, premium, if any, and interest shall bear
interest until paid from the Redemption Date at the rate borne by the Debt
Securities of that series. If less than all the Debt Securities of unlike tenor
and terms of a series are to be redeemed, the particular Debt Securities to
be
redeemed shall be selected by the Issuers. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
Section
3.03 Payment
of Debt Securities Called for Redemption.
If
notice
of redemption has been given as provided in Section 3.02, the Debt Securities
or
portions of Debt Securities of the series with respect to which such notice
has
been given shall become due and payable on the date and at the Place or Places
of Payment stated in such notice at the applicable redemption price, together
with any interest accrued to the date fixed for redemption, and on and after
said date (unless the Issuers shall default in the payment of such Debt
Securities at the applicable redemption price, together with any interest
accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue, and
any
original issue discount in the case of Original Issue Discount Securities shall
cease to accrue. On presentation and surrender of such Debt Securities at the
Place or Places of Payment in said notice specified, the said Debt Securities
or
the specified portions thereof shall be paid and redeemed by the Issuers at
the
applicable redemption price, together with any interest accrued thereon to
the
date fixed for redemption.
Any
Debt
Security that is to be redeemed only in part shall be surrendered at the Place
of Payment with, if the Issuers, the Registrar or the Trustee so requires,
due
endorsement by, or a written instrument of transfer in form satisfactory to
the
Issuers, the Registrar and the Trustee duly executed by, the Holder thereof
or
his attorney duly authorized in writing, and the Issuers shall execute, and
the
Trustee shall authenticate and deliver to the Holder of such Debt Security
without service charge, a new Debt Security or Debt Securities of the same
series, of like tenor and form, of any authorized denomination as requested
by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered; except
that if a Global Security is so surrendered, the Issuers shall execute, and
the
Trustee shall authenticate and deliver to the Depositary for such Global
Security, without service charge, a new Global Security in a denomination equal
to and in exchange for the unredeemed portion of the principal of the Global
Security so surrendered. In the case of a Debt Security providing appropriate
space for such notation, at the option of the Holder thereof, the Trustee,
in
lieu of delivering a new Debt Security or Debt Securities as aforesaid, may
make
a notation on such Debt Security of the payment of the redeemed portion
thereof.
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Section
3.04 Mandatory
and Optional Sinking Funds.
The
minimum amount of any sinking fund payment provided for by the terms of Debt
Securities of any series, resolution of the Board of Directors or a supplemental
Indenture is herein referred to as a “mandatory sinking fund payment,” and any
payment in excess of such minimum amount provided for by the terms of Debt
Securities of any series, resolution of the Board of Directors or a supplemental
Indenture is herein referred to as an “optional sinking fund
payment.”
In
lieu
of making all or any part of any mandatory sinking fund payment with respect
to
any Debt Securities of a series in cash, the Issuers may at their option (a)
deliver to the Trustee Debt Securities of that series theretofore purchased
or
otherwise acquired by the Issuers or (b) receive credit for the principal amount
of Debt Securities of that series which have been redeemed either at the
election of the Issuers pursuant to the terms of such Debt Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Debt Securities, resolution or supplemental Indenture; provided,
that such Debt Securities have not been previously so credited. Such Debt
Securities shall be received and credited for such purpose by the Trustee at
the
redemption price specified in such Debt Securities, resolution or supplemental
Indenture for redemption through operation of the sinking fund and the amount
of
such mandatory sinking fund payment shall be reduced accordingly.
Section
3.05 Redemption
of Debt Securities for Sinking Fund.
Not
less
than 60 days prior to each sinking fund payment date for any series of Debt
Securities, the Issuers will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, any resolution or supplemental Indenture,
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
Debt Securities of that series pursuant to this Section 3.05 (which Debt
Securities, if not previously redeemed, will accompany such certificate) and
whether the Issuers intend to exercise its right to make any permitted optional
sinking fund payment with respect to such series. Such certificate shall also
state that no Event of Default has occurred and is continuing with respect
to
such series. Such certificate shall be irrevocable and upon its delivery the
Issuers shall be obligated to make the cash payment or payments therein referred
to, if any, by 11 a.m., New York City time, on the next succeeding sinking
fund
payment date. Failure of the Issuers to deliver such certificate (or to deliver
the Debt Securities specified in this paragraph) shall not constitute a Default,
but such failure shall require that the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely
in
cash and shall be sufficient to redeem the principal amount of such Debt
Securities subject to a mandatory sinking fund payment without the option to
deliver or credit Debt Securities as provided in this Section 3.05 and without
the right to make any optional sinking fund payment, if any, with respect to
such series.
Any
sinking fund payment or payments (mandatory or optional) made in cash plus
any
unused balance of any preceding sinking fund payments made in cash which shall
equal or exceed $100,000 (or a lesser sum if the Issuers shall so request)
with
respect to the Debt Securities of any particular series shall be applied by
the
Trustee on the sinking fund payment date on which such payment is made (or,
if
such payment is made before a sinking fund payment date, on the sinking fund
payment date following the date of such payment) to the redemption of such
Debt
Securities at the redemption price specified in such Debt Securities, resolution
or supplemental Indenture for operation of the sinking fund together with any
accrued interest to the date fixed for redemption. Any sinking fund moneys
not
so applied or allocated by the Trustee to the redemption of Debt Securities
shall be added to the next cash sinking fund payment received by the Trustee
for
such series and, together with such payment, shall be applied in accordance
with
the provisions of this Section 3.05. Any and all sinking fund moneys with
respect to the Debt Securities of any particular series held by the Trustee
on
the last sinking fund payment date with respect to Debt Securities of such
series and not held for the payment or redemption of particular Debt Securities
shall be applied by the Trustee, together with other moneys, if necessary,
to be
deposited sufficient for the purpose, to the payment of the principal of the
Debt Securities of that series at its Stated Maturity.
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The
Trustee shall select the Debt Securities to be redeemed upon such sinking fund
payment date in the manner specified in the last paragraph of Section 3.02
and
the Issuers shall cause notice of the redemption thereof to be given in the
manner provided in Section 3.02 except
that the notice of redemption shall also state that the Debt Securities are
being redeemed by operation of the sinking fund. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms
and
in the manner stated in Section 3.03.
The
Trustee shall not redeem any Debt Securities of a series with sinking fund
moneys or mail any notice of redemption of such Debt Securities by operation
of
the sinking fund for such series during the continuance of a Default in payment
of interest on such Debt Securities or of any Event of Default (other than
an
Event of Default occurring as a consequence of this paragraph) with respect
to
such Debt Securities, except that if the notice of redemption of any such Debt
Securities shall theretofore have been mailed in accordance with the provisions
hereof, the Trustee shall redeem such Debt Securities if cash sufficient for
that purpose shall be deposited with the Trustee for that purpose in accordance
with the terms of this Article III. Except as aforesaid, any moneys in the
sinking fund for such series at the time when any such Default or Event of
Default shall occur and any moneys thereafter paid into such sinking fund shall,
during the continuance of such Default or Event of Default, be held as security
for the payment of such Debt Securities; provided, however, that in case such
Default or Event of Default shall have been cured or waived as provided herein,
such moneys shall thereafter be applied on the next sinking fund payment date
for such Debt Securities on which such moneys may be applied pursuant to the
provisions of this Section 3.05.
ARTICLE
IV.
PARTICULAR
COVENANTS OF THE ISSUERS
Section
4.01 Payment
of Principal of, and Premium, If Any, and Interest on, Debt
Securities.
The
Issuers, for the benefit of each series of Debt Securities, will duly and
punctually pay or cause to be paid the principal of, and premium, if any, and
interest on, each of the Debt Securities at the place, at the respective times
and in the manner provided herein or in the Debt Securities. Each installment
of
interest on any Debt Securities not in global form may at the Issuers’ option be
paid by mailing checks for such interest payable to the Person entitled thereto
pursuant to Section
2.07(a)
to the
address of such Person as it appears on the Debt Security Register.
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Principal
of and premium and interest on Debt Securities of any series shall be considered
paid on the date due if, by 11 a.m., New York City time, on such date the
Trustee or any paying agent holds in accordance with this Indenture money
sufficient to pay all principal, premium and interest then due and, in the
case
of Debt Securities subordinated pursuant to the terms of Article XII, the
Trustee or such paying agent, as the case may be, is not prohibited from paying
such money to the Holders on that date pursuant to the terms of this
Indenture.
The
Issuers shall pay interest on overdue principal or premium, if any, at the
rate
specified therefor in the Debt Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Section
4.02 Maintenance
of Offices or Agencies for Registration of Transfer, Exchange and Payment of
Debt Securities.
The
Issuers will maintain in each Place of Payment for any series of Debt Securities
an office or agency where Debt Securities of such series may be presented or
surrendered for payment, and it shall also maintain (in or outside such Place
of
Payment) an office or agency where Debt Securities of such series may be
surrendered for transfer or exchange and where notices and demands to or upon
the Issuers in respect of the Debt Securities of such series and this Indenture
may be served. The Issuers will give prompt written notice to the Trustee of
the
location, and any change in the location, of such office or agency. If at any
time the Issuers shall fail to maintain any such required office or agency
or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the office of the
Trustee where its corporate trust business is principally administered in the
United States, and the Issuers hereby appoint the Trustee as their agent to
receive all presentations, surrenders, notices and demands.
The
Issuers may also from time to time designate different or additional offices
or
agencies to be maintained for such purposes (in or outside of such Place of
Payment), and may from time to time rescind any such designation; provided,
however, that no such designation or rescission shall in any manner relieve
the
Issuers of their obligations described in the preceding paragraph. The Issuers
will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of
any
such different or additional office or agency.
Section
4.03 Appointment
to Fill a Vacancy in the Office of Trustee.
The
Issuers, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.08, a Trustee, so that there
shall at all times be a Trustee hereunder with respect to each series of Debt
Securities.
Section
4.04 Duties
of Paying Agents, etc.
(a) The
Issuers shall cause each paying agent, if any, other than the Trustee, to
execute and deliver to the Trustee an instrument in which such agent shall
agree
with the Trustee, subject to the provisions of this Section 4.04,
(i) that
it
will hold all sums held by it as such agent for the payment of the principal
of,
and premium, if any, or interest on, the Debt Securities of any series (whether
such sums have been paid to it by the Issuers or by any other obligor on the
Debt Securities of such series) in trust for the benefit of the Holders of
the
Debt Securities of such series;
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(ii) that
it
will give the Trustee notice of any failure by the Issuers (or by any other
obligor on the Debt Securities of such series) to make any payment of the
principal of, and premium, if any, or interest on, the Debt Securities of such
series when the same shall be due and payable; and
(iii) that
it
will at any time during the continuance of an Event of Default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held by it
as
such agent.
(b) If
either
of the Issuers shall act as its own paying agent, it will, on or before each
due
date of the principal of, and premium, if any, or interest on, the Debt
Securities of any series, set aside, segregate and hold in trust for the benefit
of the Holders of the Debt Securities of such series a sum sufficient to pay
such principal, premium, if any, or interest so becoming due. The Issuers will
promptly notify the Trustee of any failure by either of the Issuers to take
such
action or the failure by any other obligor on such Debt Securities to make
any
payment of the principal of, and premium, if any, or interest on, such Debt
Securities when the same shall be due and payable.
(c) Anything
in this Section 4.04 to the contrary notwithstanding, either of the Issuers
may,
at any time, for the purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid to the Trustee
all
sums held in trust by it or any paying agent, as required by this Section 4.04,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by such Issuer or such paying agent.
(d) Whenever
the Issuers shall have one or more paying agents with respect to any series
of
Debt Securities, they will, prior to each due date of the principal of, and
premium, if any, or interest on, any Debt Securities of such series, deposit
with any such paying agent a sum sufficient to pay the principal, premium or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless any such paying agent is the Trustee)
the
Issuers will promptly notify the Trustee of its action or failure so to
act.
(e) Anything
in this Section 4.04 to the contrary notwithstanding, the agreement to hold
sums
in trust as provided in this Section 4.04 is subject to the provisions of
Section 11.05.
Section
4.05 SEC
Reports; Financial Statements.
(a) The
Partnership shall, so long as any of the Debt Securities are Outstanding, file
with the Trustee, within 30 days after it files the same with the SEC, copies
of
the annual reports and the information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) that the Partnership is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. If the Partnership is not subject
to
the requirements of such Section 13 or 15(d), the Partnership shall file with
the Trustee, within 30 days after it would have been required to file the same
with the SEC, financial statements, including any notes thereto (and with
respect to annual reports, an auditors’ report by a firm of established national
reputation), and a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations,” both comparable to that which the Partnership would
have been required to include in such annual reports, information, documents
or
other reports if the Partnership had been subject to the requirements of such
Section
13
or
15
(d).
The
Issuers shall also comply with the provisions of TIA Section 314
(a).
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(b) The
Partnership shall provide the Trustee with a sufficient number of copies of
all
reports and other documents and information that the Trustee may be required
to
deliver to Holders under this Section.
(c) The
Partnership shall, so long as any of the Notes are Outstanding, deliver to
the
Trustee, within 30 days of any Officer of the Partnership becoming aware of
the
occurrence of any Event of Default, an Officers’ Certificate specifying such
Event of Default and what action the Partnership is taking or proposes to take
with respect thereto.
Section
4.06 Compliance
Certificate.
(a) Each
of
the Issuers and any Subsidiary Guarantor shall, so long as any of the Debt
Securities are Outstanding, deliver to the Trustee, within 120 days after the
end of each fiscal year of the Partnership, an Officers’ Certificate stating
that a review of the activities of the Partnership and its Subsidiaries during
the preceding fiscal year has been made under the supervision of the Officers
signing the certificate with a view to determining whether each of the Issuers
and any Subsidiary Guarantor 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 knowledge each of the Issuers
and any Subsidiary Guarantor 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 hereof,
without regard to any grace period or requirement of notice required by this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which such Officer may have knowledge
and what action the Issuers or any Subsidiary Guarantor is taking or proposes
to
take with respect thereto) and that to the best of his knowledge no event has
occurred and remains in existence by reason of which payments on account of
the
principal of, or premium, if any, or interest, if any, on the Debt Securities
are prohibited or, if such event has occurred, a description of the event and
what action the Partnership or any Subsidiary Guarantor is taking or proposes
to
take with respect thereto.
(b) The
Partnership shall, so long as any of the Debt Securities are Outstanding,
deliver to the Trustee within 30 days after the occurrence of any Default or
Event of Default under this Indenture, an Officers’ Certificate specifying such
Default or Event of Default, the status thereof and what action the Partnership
is taking or proposes to take with respect thereto.
-28-
Section
4.07 Further
Instruments and Acts.
The
Partnership will, upon request of the Trustee, execute and deliver such further
instruments and do such further acts as may reasonably be necessary or proper
to
carry out more effectually the purposes of this Indenture.
Section
4.08 Existence.
Except
as
permitted by Article X hereof, the Partnership shall do or cause to be done
all
things necessary to preserve and keep in full force and effect its existence
and
all rights (charter and statutory) and franchises of the Partnership, provided
that the Partnership shall not be required to preserve any such right or
franchise, if its Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Partnership.
Section
4.09 Maintenance
of Properties.
The
Partnership shall cause all properties owned by the Partnership or any of its
Subsidiaries or used or held for use in the conduct of its business or the
business of any such Subsidiary to be maintained and kept in good condition,
repair and working order (reasonable wear and tear excepted) and supplied with
all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Partnership may be necessary so that the business carried on
in
connection therewith may be properly and advantageously conducted at all times;
provided that nothing in this Section shall prevent the Partnership from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Partnership, desirable in the conduct
of its business or the business of any such Subsidiary and not disadvantageous
in any material respect to the Holders.
Section
4.10 Payment
of Taxes and Other Claims.
The
Partnership shall pay or discharge or cause to be paid or discharged, before
the
same shall become delinquent, (i) all taxes, assessments and governmental
charges levied or imposed upon the Partnership or any of its Subsidiaries or
upon the income, profits or property of the Partnership or any of its
Subsidiaries, and (ii) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a Lien upon the property of the
Partnership or any of its Subsidiaries; provided that the Partnership shall
not
be required to pay or discharge or cause to be paid or discharged any such
tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
Section
4.11 Waiver
of Certain Covenants.
The
Issuers and the Subsidiary Guarantors may, with respect to the Debt Securities
of any series, omit in any particular instance to comply with any covenant
set
forth in this Article IV (except Section 4.01 through Section 4.08) or made
applicable to such Debt Securities pursuant to Section 2.03, if, before or
after
the time for such compliance, the Holders of at least a majority in principal
amount of the Outstanding Debt Securities of each series affected, waive such
compliance in such instance with such covenant, but no such waiver shall extend
to or affect such covenant except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Issuers and the
Subsidiary Guarantors and the duties of the Trustee in respect of any such
covenant shall remain in full force and effect.
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ARTICLE
V.
HOLDERS’
LISTS AND REPORTS BY THE TRUSTEE
Section
5.01 Issuers
to Furnish Trustee Information as to Names and Addresses of Holders;
Preservation of Information.
The
Issuers covenant and agree that they will furnish or cause to be furnished
to
the Trustee with respect to the Debt Securities of each series:
(a) not
more
than 10 days after each record date with respect to the payment of interest,
if
any, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such record date, and
(b) at
such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Issuers of any such request, a list of similar form and contents
as of a date not more than 15 days prior to the time such list is
furnished;
(c) provided,
however, that so long as the Trustee shall be the Registrar, such lists shall
not be required to be furnished.
The
Trustee shall preserve, in as current a form as is reasonably practicable,
all
information as to the names and addresses of the Holders (i) contained in the
most recent list furnished to it as provided in this Section 5.01 or (ii)
received by it in the capacity of paying agent or Registrar (if so acting)
hereunder.
The
Trustee may destroy any list furnished to it as provided in this Section 5.01
upon receipt of a new list so furnished.
Section
5.02 Communications
to Holders.
Holders
may communicate pursuant to Section 312(b) of the TIA with other Holders
with respect to their rights under this Indenture or the Debt Securities. The
Issuers, the Trustee, the Registrar and anyone else shall have the protection
of
Section 312(c) of the TIA.
Section
5.03 Reports
by Trustee.
Within
60
days after each January 31, beginning with the first January 31 following the
date of this Indenture, and in any event on or before April 1 in each year,
the
Trustee shall mail to Holders a brief report dated as of such January 31 that
complies with TIA Section 313 (a); provided, however, that if no event described
in TIA Section 313 (a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted. The Trustee also shall comply
with TIA Section 313 (b).
Reports
pursuant to this Section 5.03 shall be transmitted by mail:
(a) to
all
Holders, as the names and addresses of such Holders appear in the Debt Security
Register; and
(b) except
in
the cases of reports under Section 313(b)(2) of the TIA, to each Holder of
a
Debt Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section
5.01.
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A
copy of
each report at the time of its mailing to Holders shall be filed with the
Securities and Exchange Commission and each stock exchange (if any) on which
the
Debt Securities of any series are listed. The Issuers agree to notify promptly
the Trustee whenever the Debt Securities of any series become listed on any
stock exchange and of any delisting thereof.
Section
5.04 Record
Dates for Action by Holders.
If
the
Issuers shall solicit from the Holders of Debt Securities of any series any
action (including the making of any demand or request, the giving of any
direction, notice, consent or waiver or the taking of any other action), the
Issuers may, at their option, by resolution of their respective Boards of
Directors, fix in advance a record date for the determination of Holders of
Debt
Securities entitled to take such action, but the Issuers shall have no
obligation to do so. Any such record date shall be fixed at the Issuers’
discretion. If such a record date is fixed, such action may be sought or given
before or after the record date, but only the Holders of Debt Securities of
record at the close of business on such record date shall be deemed to be
Holders of Debt Securities for the purpose of determining whether Holders of
the
requisite proportion of Debt Securities of such series Outstanding have
authorized or agreed or consented to such action, and for that purpose the
Debt
Securities of such series Outstanding shall be computed as of such record
date.
ARTICLE
VI.
REMEDIES
OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section
6.01 Events
of Default.
If
any
one or more of the following shall have occurred and be continuing with respect
to Debt Securities of any series (each of the following, an “Event of
Default”):
(a) default
in the payment of any installment of interest upon any Debt Securities of that
series as and when the same shall become due and payable, whether or not such
payment shall be prohibited by Article XII, if applicable, and continuance
of
such default for a period of 30 days; or
(b) default
in the payment of the principal of or premium, if any, on any Debt Securities
of
that series as and when the same shall become due and payable, whether at Stated
Maturity, upon redemption, by declaration, upon required repurchase or
otherwise, whether or not such payment shall be prohibited by Article XII,
if
applicable; or
(c) default
in the payment of any sinking fund payment with respect to any Debt Securities
of that series as and when the same shall become due and payable;
or
(d) failure
on the part of the Issuers, or if any series of Debt Securities Outstanding
under this Indenture is entitled to the benefits of the Guarantee, any of the
Subsidiary Guarantors, duly to observe or perform any other of the covenants
or
agreements on the part of the Issuers, or if applicable, any of the Subsidiary
Guarantors, in the Debt Securities of that series, in any resolution of the
Board of Directors authorizing the issuance of that series of Debt Securities,
in this Indenture with respect to such series or in any supplemental Indenture
with respect to such series (other than a covenant a default in the performance
of which is elsewhere in this Section specifically dealt with), continuing
for a
period of 60 days after the date on which written notice specifying such failure
and requiring the Issuers, or if applicable, the Subsidiary Guarantors, to
remedy the same shall have been given to the Issuers, or if applicable, the
Subsidiary Guarantors, by the Trustee or to the Issuers, or if applicable,
the
Subsidiary Guarantors, and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Debt Securities of that series at the time
Outstanding; or
-31-
(e) either
of
the Issuers, or if any series of Debt Securities Outstanding under this
Indenture is entitled to the benefits of the Guarantee, any of the Subsidiary
Guarantors, pursuant to or within the meaning of any Bankruptcy
Law,
(i) commences
a voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary
case,
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of
its
property; or
(iv) makes
a
general assignment for the benefit of its creditors;
(f) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(i) is
for
relief against either of the Issuers, or if any series of Debt Securities
Outstanding under this Indenture is entitled to the benefits of the Guarantee,
any of the Subsidiary Guarantors, as debtor in an involuntary case,
(ii) appoints
a Custodian of either of the Issuers, or if any series of Debt Securities
Outstanding under this Indenture is entitled to the benefits of the Guarantee,
any of the Subsidiary Guarantors, or a Custodian for all or substantially all
of
the property of either of the Issuers, or if applicable, any of the Subsidiary
Guarantors, or
(iii) orders
the liquidation of either of the Issuers, or if any series of Debt Securities
Outstanding under this Indenture is entitled to the benefits of the Guarantee,
any of the Subsidiary Guarantors, and the order or decree remains unstayed
and
in effect for 60 days;
(g) if
any
series of Debt Securities Outstanding under this Indenture is entitled to the
benefits of the Guarantee, the Guarantee of any of the Subsidiary Guarantors
ceases to be in full force and effect with respect to Debt Securities of that
series (except as otherwise provided in this Indenture) or is declared null
and
void in a judicial proceeding or any of the Subsidiary Guarantors denies or
disaffirms its obligations under this Indenture or such Guarantee;
or
(h) any
other
Event of Default provided with respect to Debt Securities of that series; then
and in each and every case that an Event of Default described in clause (a),
(b), (c), (d), (g), or (h) with respect to Debt Securities of that series at
the
time Outstanding occurs and is continuing, unless the principal of, premium,
if
any, and accrued and unpaid interest on all the Debt Securities of that series
shall have already become due and payable, either the Trustee or the Holders
of
not less than 25% in aggregate principal amount of the Debt Securities of that
series then Outstanding hereunder, by notice in writing to the Issuers (and
to
the Trustee if given by Holders), may declare the principal of (or, if the
Debt
Securities of that series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms of that
series), premium, if any, and interest on all the Debt Securities of that series
to be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, anything in this Indenture
or
in the Debt Securities of that series contained to the contrary notwithstanding.
If an Event of Default described in clause (e) or (f) occurs with respect to
either of the Issuers, then and in each and every such case, unless the
principal of and accrued and unpaid interest on all the Debt Securities shall
have become due and payable, the principal of (or, if the Debt Securities of
that series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms thereof), premium, if any,
and
interest on all the Debt Securities then Outstanding hereunder shall ipso facto
become and be immediately due and payable without any declaration or other
act
on the part of the Trustee or any Holders, anything in this Indenture or in
the
Debt Securities contained to the contrary notwithstanding.
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The
Holders of a majority in aggregate principal amount of the Debt Securities
of a
particular series by written notice to the Trustee may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment
or
decree of a court of competent jurisdiction already rendered and if all existing
Events of Default with respect to that series have been cured or waived except
nonpayment of principal, premium, if any, or interest that has become due solely
because of acceleration. Upon any such rescission, the parties hereto shall
be
restored respectively to their several positions and rights hereunder, and
all
rights, remedies and powers of the parties hereto shall continue as though
no
such proceeding had been taken.
Section
6.02 Collection
of Debt by Trustee, etc.
If
an
Event of Default occurs and is continuing, the Trustee, in its own name and
as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so
due
and unpaid or enforce the performance of any provision of the Debt Securities
of
the affected series or this Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment
or
final decree against any of the Subsidiary Guarantors or the Issuers or any
other obligor upon the Debt Securities of such series (and collect in the manner
provided by law out of the property of any of the Subsidiary Guarantors or
the
Issuers or any other obligor upon the Debt Securities of such series wherever
situated the moneys adjudged or decreed to be payable).
In
case
there shall be pending proceedings for the bankruptcy or for the reorganization
of any of the Subsidiary Guarantors or the Issuers or any other obligor upon
the
Debt Securities of any series under any Bankruptcy Law, or in case a Custodian
shall have been appointed for its property, or in case of any other similar
judicial proceedings relative to any of the Subsidiary Guarantors or the Issuers
or any other obligor upon the Debt Securities of any series, its creditors
or
its property, the Trustee, irrespective of whether the principal of Debt
Securities of any series shall then be due and payable as therein expressed
or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 6.02, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal, premium,
if
any, and interest (or, if the Debt Securities of such series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the Debt
Securities of such series, and to file such other papers or documents as may
be
necessary or advisable in order to have the claims of the Trustee (including
any
claim for reasonable compensation to the Trustee, its agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities incurred, and
all
advances made, by the Trustee except as a result of its negligence or bad faith)
and of the Holders thereof allowed in any such judicial proceedings relative
to
any of the Subsidiary Guarantors or the Issuers, or any other obligor upon
the
Debt Securities of such series, its creditors or its property, and to collect
and receive any moneys or other property payable or deliverable on any such
claims, and to distribute all amounts received with respect to the claims of
such Holders and of the Trustee on their behalf, and any receiver, assignee
or
trustee in bankruptcy or reorganization is hereby authorized by each of such
Holders to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to such Holders, to pay to
the
Trustee such amount as shall be sufficient to cover reasonable compensation
to
the Trustee, its agents, attorneys and counsel, and all other reasonable
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith.
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All
rights of action and of asserting claims under this Indenture, or under any
of
the Debt Securities of any series, may be enforced by the Trustee without the
possession of any such Debt Securities, or the production thereof in any trial
or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment (except for any amounts payable
to
the Trustee pursuant to Section 7.06) shall be for the ratable benefit of the
Holders of all the Debt Securities in respect of which such action was
taken.
In
case
of an Event of Default hereunder the Trustee may in its discretion proceed
to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section
6.03 Application
of Moneys Collected by Trustee.
Any
moneys or other property collected by the Trustee pursuant to Section 6.02
with
respect to Debt Securities of any series shall be applied, after giving effect
to the provisions of Article XII, if applicable, in the order following, at
the
date or dates fixed by the Trustee for the distribution of such moneys or other
property, upon presentation of the several Debt Securities of such series in
respect of which moneys or other property have been collected, and the notation
thereon of the payment, if only partially paid, and upon surrender thereof
if
fully paid:
FIRST:
To
the payment of all money due the Trustee pursuant to Section 7.06;
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SECOND:
In case the principal of the Outstanding Debt Securities in respect of which
such moneys have been collected shall not have become due, to the payment of
interest on the Debt Securities of such series in the order of the maturity
of
the installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments of
interest at the rate or Yield to Maturity (in the case of Original Issue
Discount Debt Securities) borne by the Debt Securities of such series, such
payments to be made ratably to the Persons entitled thereto, without
discrimination or preference;
THIRD:
In
case the principal of the Outstanding Debt Securities in respect of which such
moneys have been collected shall have become due, by declaration or otherwise,
to the payment of the whole amount then owing and unpaid upon the Debt
Securities of such series for principal and premium, if any, and interest,
with
interest on the overdue principal and premium, if any, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments
of
interest at the rate or Yield to Maturity (in the case of Original Issue
Discount Debt Securities) borne by the Debt Securities of such series; and,
in
case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Debt Securities of such series, then to the payment of
such
principal and premium, if any, and interest, without preference or priority
of
principal and premium, if any, over interest, or of interest over principal
and
premium, if any, or of any installment of interest over any other installment
of
interest, or of any Debt Security of such series over any Debt Security of
such
series, ratably to the aggregate of such principal and premium, if any, and
interest; and
FOURTH:
The remainder, if any, shall be paid to the Subsidiary Guarantors or the
Issuers, as applicable, or to whomsoever may be lawfully entitled to receive
the
same, or as a court of competent jurisdiction may direct.
The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 6.03. At least 15 days before such record date, the
Issuers shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
Section
6.04 Limitation
on Suits by Holders.
No
Holder
of any Debt Security of any series shall have any right by virtue or by availing
of any provision of this Indenture to institute any action or proceeding at
law
or in equity or in bankruptcy or otherwise, upon or under or with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of an Event of Default with respect to Debt Securities
of
that same series and of the continuance thereof and unless the Holders of not
less than 25% in aggregate principal amount of the Outstanding Debt Securities
of that series shall have made written request upon the Trustee to institute
such action or proceedings in respect of such Event of Default in its own name
as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity or security as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity or security
shall have failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 6.06; it being understood and intended, and being expressly
covenanted by the Holder of every Debt Security with every other Holder and
the
Trustee, that no one or more Holders shall have any right in any manner whatever
by virtue or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any Holders, or to obtain or seek to obtain priority
over or preference to any other such Holder, or to enforce any right under
this
Indenture, except in the manner herein provided and for the equal, ratable
and
common benefit of all such Holders. For the protection and enforcement of the
provisions of this Section 6.04, each and every Holder and the Trustee shall
be
entitled to such relief as can be given either at law or in equity.
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Notwithstanding
any other provision in this Indenture, however, the right of any Holder of
any
Debt Security to receive payment of the principal of, and premium, if any,
and
(subject to Section 2.12) interest on, such Debt Security, on or after the
respective due dates expressed in such Debt Security, and to institute suit
for
the enforcement of any such payment on or after such respective dates, shall
not
be impaired or affected without the consent of such Holder.
Section
6.05 Remedies
Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of
Default.
All
powers and remedies given by this Article VI to the Trustee or to the Holders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of
any thereof or of any other powers and remedies available to the Trustee or
the
Holders, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and
no
delay or omission of the Trustee or of any Holder to exercise any right or
power
accruing upon any Default occurring and continuing as aforesaid, shall impair
any such right or power, or shall be construed to be a waiver of any such
Default or an acquiescence therein; and, subject to the provisions of Section
6.04, every power and remedy given by this Article VI or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as shall
be
deemed expedient, by the Trustee or by the Holders.
Section
6.06 Rights
of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee
and to Waive Default.
The
Holders of not less than a majority in aggregate principal amount of the Debt
Securities of any series at the time Outstanding shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or of exercising any right, trust or power conferred on the
Trustee, with respect to the Debt Securities of such series; provided, however,
that such direction shall not be otherwise than in accordance with law and
the
provisions of this Indenture, and that subject to the provisions of Section
7.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee being advised by counsel shall determine that the action so
directed may not lawfully be taken or is inconsistent with any provision of
this
Indenture, or if the Trustee shall by a responsible officer or officers
determine that the action so directed would involve it in personal liability
or
would be unduly prejudicial to Holders of Debt Securities of such series not
taking part in such direction; and provided, further, however, that nothing
in
this Indenture contained shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by such Holders. The Holders of not less than a majority in aggregate
principal amount of the Debt Securities of any series at the time Outstanding
may on behalf of the Holders of all the Debt Securities of that series waive
any
past Default or Event of Default and its consequences for that series, except
a
Default or Event of Default in the payment of the principal of, and premium,
if
any, or interest on, any of the Debt Securities and a Default or Event of
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Holder affected thereby. In case of any such waiver,
such Default shall cease to exist, any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture, and the
Subsidiary Guarantors, the Issuers, the Trustee and the Holders of the Debt
Securities of that series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent
or
other Default or Event of Default or impair any right consequent
thereon.
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Section
6.07 Trustee
to Give Notice of Events of Defaults Known to It, but May Withhold Such Notice
in Certain Circumstances.
The
Trustee shall, within 90 days after the occurrence of an Event of Default,
or if
later, within 30 days after the Trustee obtains actual knowledge of the Event
of
Default, with respect to a series of Debt Securities give to the Holders
thereof, in the manner provided in Section 13.03, notice of all Events of
Default with respect to such series known to the Trustee, unless such Events
of
Default shall have been cured or waived before the giving of such notice;
provided, that, except in the case of an Event of Default in the payment of
the
principal of, or premium, if any, or interest on, any of the Debt Securities
of
such series or in the making of any sinking fund payment with respect to the
Debt Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or
a committee of directors or responsible officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders thereof.
Section
6.08 Requirement
of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against
the Trustee.
All
parties to this Indenture agree, and each Holder of any Debt Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of
an
undertaking to pay the costs of such suit in the manner and to the extent
provided in the TIA, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys’ fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 6.08 shall not apply to any suit instituted by the Trustee, to any
suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 25 percent in principal amount of the Outstanding Debt Securities of that
series or to any suit instituted by any Holder for the enforcement of the
payment of the principal of, or premium, if any, or interest on, any Debt
Security on or after the due date for such payment expressed in such Debt
Security.
ARTICLE
VII.
CONCERNING
THE TRUSTEE
Section
7.01 Certain
Duties and Responsibilities.
The
Trustee, prior to the occurrence of an Event of Default and after the curing
or
waiving of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured
or
waived), the Trustee shall exercise such of the rights and powers vested in
it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of
his own affairs.
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No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, its
own bad faith or its own willful misconduct, except that:
(a) this
paragraph shall not be construed to limit the effect of the first paragraph
of
this Section 7.01;
(b) prior
to
the occurrence of an Event of Default with respect to the Debt Securities of
a
series and after the curing or waiving of all Events of Default with respect
to
such series which may have occurred:
(c) (i) the
duties and obligations of the Trustee with respect to Debt Securities of any
series shall be determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable except for the performance of such duties
and obligations with respect to such series as are specifically set forth in
this Indenture, and no implied covenants or obligations with respect to such
series shall be read into this Indenture against the Trustee;
(ii) in
the
absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty
to
examine the same to determine whether or not they conform to the requirements
of
this Indenture; but the Trustee shall examine the evidence furnished to it
pursuant to Section 4.05 and Section 4.06 to determine whether or not such
evidence conforms to the requirement of this Indenture;
(iii) the
Trustee shall not be liable for an error of judgment made in good faith by
a
responsible officer, unless it shall be proved that the Trustee was negligent
in
ascertaining the pertinent facts; and
(iv) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it with respect to Debt Securities of any series in good faith in
accordance with the direction of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of that series
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon
the Trustee, under this Indenture with respect to Debt Securities of such
series.
None
of
the provisions of this Indenture shall require the Trustee to expend or risk
its
own funds or otherwise incur any personal financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
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Whether
or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
Section
7.02 Certain
Rights of Trustee.
Except
as otherwise provided in Section 7.01:
(a) the
Trustee may rely and shall be protected in acting or refraining from acting
upon
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note or other paper or
document (whether in its original or facsimile form) believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any
request, direction, order or demand of either of the Issuers mentioned herein
shall be sufficiently; evidenced by an Issuer Order (unless other evidence
in
respect thereof be herein specifically prescribed); and any resolution of the
Board of Directors of an Issuer may be evidenced to the Trustee by a copy
thereof certified by its Secretary or an Assistant Secretary;
(c) the
Trustee may consult with counsel, and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of
the
Holders of Debt Securities of any series pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be
incurred therein or thereby;
(e) the
Trustee shall not be liable for any action taken or omitted by it in good faith
and reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(f) prior
to
the occurrence of an Event of Default and after the curing of all Events of
Default which may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, approval or other paper or document, unless requested in writing to
do so
by the Holders of a majority in aggregate principal amount of the then
Outstanding Debt Securities of a series affected by such matter; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such
investigation is not, in the opinion of the Trustee, reasonably assured to
the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding, and the reasonable expense of
every
such investigation shall be paid by the Issuers or, if paid by the Trustee,
shall be repaid by the Issuers upon demand;
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(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it with due care hereunder; and
(h) if
any
property other than cash shall at any time be subject to a Lien in favor of
the
Holders, the Trustee, if and to the extent authorized by a receivership or
bankruptcy court of competent jurisdiction or by the supplemental instrument
subjecting such property to such Lien, shall be entitled to make advances for
the purpose of preserving such property or of discharging tax Liens or other
prior Liens or encumbrances thereon.
Section
7.03 Trustee
Not Liable for Recitals in Indenture or in Debt Securities.
The
recitals contained herein, in the Debt Securities (except the Trustee’s
certificate of authentication) shall be taken as the statements of the Issuers,
and the Trustee assumes no responsibility for the correctness of the same.
The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities of any series, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Debt Securities and perform its obligations hereunder, and
that
the statements made by it or to be made by it in a Statement of Eligibility
and
Qualification on Form T-1 supplied to the Issuers are true and accurate. The
Trustee shall not be accountable for the use or application by the Issuers
of
any of the Debt Securities or of the proceeds thereof.
Section
7.04 Trustee,
Paying Agent or Registrar May Own Debt Securities.
The
Trustee or any paying agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and subject to
the
provisions of the TIA relating to conflicts of interest and preferential claims
may otherwise deal with the Issuers with the same rights it would have if it
were not Trustee, paying agent or Registrar.
Section
7.05 Moneys
Received by Trustee to Be Held in Trust.
Subject
to the provisions of Section 11.05, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes
for
which they were received, but 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 moneys received by it hereunder. So long as no Event of Default shall
have occurred and be continuing, all interest allowed on any such moneys shall
be paid from time to time to the Issuers upon an Issuer Order.
Section
7.06 Compensation
and Reimbursement.
The
Issuers covenant and agree to pay in Dollars to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation for all services
rendered by it hereunder (which shall not be limited by any provision of law
in
regard to the compensation of a trustee of an express trust), and, except as
otherwise expressly provided herein, the Issuers will pay or reimburse in
Dollars the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents, attorneys and counsel and of all
Persons not regularly in its employ), including without limitation, Section
6.02, except any such expense, disbursement or advances as may arise from its
negligence, willful misconduct or bad faith. The Issuers also covenant to
indemnify in Dollars the Trustee for, and to hold it harmless against, any
loss,
liability or expense incurred without negligence, willful misconduct or bad
faith on the part of the Trustee, arising out of or in connection with the
acceptance or administration of this trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any claim of liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Issuers under this Section 7.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional Debt hereunder and shall
survive the satisfaction and discharge of this Indenture. The Issuers and the
Holders agree that such additional Debt shall be secured by a Lien prior to
that
of the Debt Securities upon all property and funds held or collected by the
Trustee, as such, except funds held in trust for the payment of principal of,
and premium, if any, or interest on, particular Debt Securities.
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When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(e) or Section 6.01(f) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under
any
Bankruptcy Law.
Section
7.07 Right
of Trustee to Rely on an Officers’ Certificate Where No Other Evidence
Specifically Prescribed.
Except
as
otherwise provided in Section 7.01, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting
any action hereunder, such matter (unless other evidence in respect thereof
be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers’ Certificate delivered to the Trustee and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full
warrant to the Trustee for any action taken, suffered or omitted by it under
the
provisions of this Indenture upon the faith thereof.
Section
7.08 Separate
Trustee; Replacement of Trustee.
The
Issuers may, but need not, appoint a separate Trustee for any one or more series
of Debt Securities. The Trustee may resign with respect to one or more or all
series of Debt Securities at any time by giving notice to the Issuers. The
Holders of a majority in principal amount of the Debt Securities of a particular
series may remove the Trustee for such series and only such series by so
notifying the Trustee and may appoint a successor Trustee. The Issuers shall
remove the Trustee if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged bankrupt or insolvent;
(c) a
Custodian takes charge of the Trustee or its property; or
(d) the
Trustee otherwise becomes incapable of acting.
If
the
Trustee resigns, is removed by the Issuers or by the Holders of a majority
in
principal amount of the Debt Securities of a particular series and such Holders
do not reasonably promptly appoint a successor Trustee, or if a vacancy exists
in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Issuers shall promptly appoint
a successor Trustee. No resignation or removal of the Trustee and no appointment
of a successor Trustee shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of this Section 7.08.
-41-
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Issuers. Thereupon the resignation or removal of
the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders of Debt
Securities of each applicable series. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject
to
the Lien provided for in Section 7.06.
If
a
successor Trustee does not take office within 60 days after the retiring Trustee
gives notice of resignation or is removed, the retiring Trustee or the Holders
of 25% in principal amount of the Debt Securities of any applicable series
may
petition any court of competent jurisdiction for the appointment of a successor
Trustee for the Debt Securities of such series.
If
the
Trustee fails to comply with Section 7.10, any Holder of Debt Securities of
any
applicable series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee for the Debt
Securities of such series.
Notwithstanding
the replacement of the Trustee pursuant to this Section 7.08, the Issuers’
obligations under Section 7.06 shall continue for the benefit of the retiring
Trustee.
In
the
case of the appointment hereunder of a separate or successor Trustee with
respect to the Debt Securities of one or more series, the Issuers, any retiring
Trustee and each successor or separate Trustee with respect to the Debt
Securities of any applicable series shall execute and deliver an Indenture
supplemental hereto (i) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Debt Securities of any series as
to
which any such retiring Trustee is not retiring shall continue to be vested
in
such retiring Trustee and (ii) that 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
separate, retiring or successor 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
7.09 Successor
Trustee by Merger.
If
the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
or
banking association without any further act shall be the successor
Trustee.
In
case
at the time such successor or successors to the Trustee by merger, conversion,
consolidation or transfer shall succeed to the trusts created by this Indenture
any of the Debt Securities shall have been authenticated but not delivered,
any
such successor to the Trustee may adopt the certificate of authentication of
any
predecessor Trustee, and deliver such Debt Securities so authenticated; and
in
case at that time any of the Debt Securities shall not have been authenticated,
any successor to the Trustee may authenticate such Debt Securities either in
the
name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force
which
it is anywhere in the Debt Securities or in this Indenture provided that the
certificate of the Trustee shall have.
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Section
7.10 Eligibility;
Disqualification.
The
Trustee shall at all times satisfy the requirements of Section 310(a) of the
TIA. The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. No obligor upon the Debt Securities of a particular series or Person
directly or indirectly controlling, controlled by or under common control with
such obligor shall serve as Trustee for the Debt Securities of such series.
The
Trustee shall comply with Section 310(b) of the TIA; provided, however, that
there shall be excluded from the operation of Section 310(b)(1) of the TIA
this
Indenture or any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Issuers
are
outstanding if the requirements for such exclusion set forth in Section
310(b)(1) of the TIA are met.
Section
7.11 Preferential
Collection of Claims Against Issuers.
The
Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned
or
been removed shall be subject to Section 311(a) of the TIA to the extent
indicated therein.
Section
7.12 .Compliance
with Tax Laws.
The
Trustee hereby agrees to comply with all U.S. Federal income tax information
reporting and withholding requirements applicable to it with respect to payments
of premium (if any) and interest on the Debt Securities, whether acting as
Trustee, Registrar, paying agent or otherwise with respect to the Debt
Securities.
ARTICLE
VIII.
CONCERNING
THE HOLDERS
Section
8.01 Evidence
of Action by Holders.
Whenever
in this Indenture it is provided that the Holders of a specified percentage
in
aggregate principal amount of the Debt Securities of any or all series may
take
action (including the making of any demand or request, the giving of any
direction, notice, consent or waiver or the taking of any other action) the
fact
that at the time of taking any such action the Holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by Holders in Person or by
agent
or proxy appointed in writing, (b) by the record of the Holders voting in favor
thereof at any meeting of Holders duly called and held in accordance with the
provisions of Section 5.02, (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders or (d) in the
case
of Debt Securities evidenced by a Global Security, by any electronic
transmission or other message, whether or not in written format, that complies
with the Depositary’s applicable procedures.
Section
8.02 Proof
of Execution of Instruments and of Holding of Debt Securities.
Subject
to the provisions of Section 7.01, Section 7.02 and Section 13.09, proof of
the
execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations
as
may be prescribed by the Trustee or in such manner as shall be satisfactory
to
the Trustee. The ownership of Debt Securities of any series shall be proved
by
the Debt Security Register or by a certificate of the Registrar for such series.
The Trustee may require such additional proof of any matter referred to in
this
Section 8.02 as it shall deem necessary.
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Section
8.03 Who
May Be Deemed Owner of Debt Securities.
Prior
to
due presentment for registration of transfer of any Debt Security, the Issuers,
the Subsidiary Guarantors, the Trustee, any paying agent and any Registrar
may
deem and treat the Person in whose name any Debt Security shall be registered
upon the books of the Issuers as the absolute owner of such Debt Security
(whether or not such Debt Security shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and premium, if any, and (subject
to Section 2.12) interest on such Debt Security and for all other purposes,
and
none of the Issuers, the Subsidiary Guarantors or the Trustee nor any paying
agent nor any Registrar shall be affected by any notice to the contrary; and
all
such payments so made to any such Holder for the time being, or upon his order,
shall be valid and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Debt
Security.
None
of
the Issuers, the Subsidiary Guarantors, the Trustee, any paying agent or any
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing
any
records relating to such beneficial ownership interests.
Section
8.04 Instruments
Executed by Holders Bind Future Holders.
At
any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the Holders of the percentage
in
aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action and subject to the following
paragraph, any Holder of a Debt Security which is shown by the evidence to
be
included in the Debt Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its corporate trust
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Debt Security. Except as aforesaid any such action
taken
by the Holder of any Debt Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Debt Security and of
any
Debt Security issued upon transfer thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is
made
upon such Debt Security or such other Debt Securities. Any action taken by
the
Holders of the percentage in aggregate principal amount of the Debt Securities
of any series specified in this Indenture in connection with such action shall
be conclusively binding upon the Issuers, the Subsidiary Guarantors, the Trustee
and the Holders of all the Debt Securities of such series.
The
Issuers may, but shall not be obligated to, fix a record date for the purpose
of
determining the Holders of Debt Securities entitled to give their consent or
take any other action required or permitted to be taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders of Debt Securities at such
record date (or their duly designated proxies), and only those Persons, shall
be
entitled to give such consent or to revoke any consent previously given or
to
take any such action, whether or not such Persons continue to be Holders of
Debt
Securities after such record date. No such consent shall be valid or effective
for more than 120 days after such record date unless the consent of the Holders
of the percentage in aggregate principal amount of the Debt Securities of such
series specified in this Indenture shall have been received within such 120-day
period.
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ARTICLE
IX.
SUPPLEMENTAL
INDENTURES
Section
9.01 Purposes
for Which Supplemental Indenture May Be Entered into Without Consent of
Holders.
The
Issuers and any Subsidiary Guarantors, when authorized by resolutions of each
Issuer’s Board of Directors, and the Trustee may from time to time and at any
time, without the consent of Holders, enter into an Indenture or Indentures
supplemental hereto (which shall conform to the provisions of the TIA as in
force at the date of the execution thereof) for one or more of the following
purposes:
(a) to
evidence the succession pursuant to Article X of another Person to either of
the
Issuers, or successive successions, and the assumption by the Successor Company
(as defined in Section 10.01) of the covenants, agreements and obligations
of
its predecessor Issuer in this Indenture and in the Debt
Securities;
(b) to
surrender any right or power herein conferred upon the Issuers or the Subsidiary
Guarantors, to add to the covenants of the Issuers or the Subsidiary Guarantors
such further covenants, restrictions, conditions or provisions for the
protection of the Holders of all or any series of Debt Securities (and if such
covenants are to be for the benefit of less than all series of Debt Securities,
stating that such covenants are expressly being included solely for the benefit
of such series) as the Board of Directors shall consider to be for the
protection of the Holders of such Debt Securities, and to make the occurrence,
or the occurrence and continuance, of a Default in any of such additional
covenants, restrictions, conditions or provisions a Default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental Indenture may
provide for a particular period of grace after Default (which period may be
shorter or longer than that allowed in the case of other Defaults) or may
provide for an immediate enforcement upon such Default or may limit the remedies
available to the Trustee upon such Default or may limit the right of the Holders
of a majority in aggregate principal amount of any or all series of Debt
Securities to waive such Default;
(c) to
cure
any ambiguity or omission or to correct or supplement any provision contained
herein, in any supplemental Indenture or in any Debt Securities of any series
that may be defective or inconsistent with any other provision contained herein,
in any supplemental Indenture or in the Debt Securities of such series; to
convey, transfer, assign, mortgage or pledge any property to or with the
Trustee, or to make such other provisions in regard to matters or questions
arising under this Indenture as shall not adversely affect the interests of
any
Holders of Debt Securities of any series;
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(d) to
permit
the qualification of this Indenture or any Indenture supplemental hereto under
the TIA as then in effect, except that nothing herein contained shall permit
or
authorize the inclusion in any Indenture supplemental hereto of the provisions
referred to in Section 316(a)(2) of the TIA;
(e) to
change
or eliminate any restrictions on the payment of principal of, or premium, if
any, on, Debt Securities; provided, that any such action shall not adversely
affect the interests of the Holders of Debt Securities of any series in any
material respect or permit or facilitate the issuance of Debt Securities of
any
series in uncertificated form;
(f) to
reflect the release of any Subsidiary Guarantor in accordance with Article
XIV;
(g) in
the
case of any Debt Securities subordinated pursuant to Article XII, to make any
change in Article XII that would limit or terminate the benefits available
to
any holder of Senior Indebtedness (or Representatives therefor) under Article
XII;
(h) to
add
Subsidiary Guarantors with respect to any or all of the Debt Securities or
to
secure any or all of the Debt Securities or the Guarantee;
(i) to
make
any change that does not adversely affect the rights hereunder of any
Holder;
(j) to
add
to, change or eliminate any of the provisions of this Indenture in respect
of
one or more series of Debt Securities; provided, however, that any such
addition, change or elimination not otherwise permitted under this Section
9.01
shall neither apply to any Debt Security of any series created prior to the
execution of such supplemental Indenture and entitled to the benefit of such
provision nor modify the rights of the Holder of any such Debt Security with
respect to such provision or shall become effective only when there is no such
Debt Security Outstanding;
(k) to
evidence and provide for the acceptance of appointment hereunder by a successor
or separate Trustee with respect to the Debt 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; and
(l) to
establish the form or terms of Debt Securities of any series as permitted by
Section 2.01 and Section 2.03.
The
Trustee is hereby authorized to join with the Issuers and the Subsidiary
Guarantors in the execution of any such supplemental Indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any
such supplemental Indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
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Any
supplemental Indenture authorized by the provisions of this Section 9.01 may
be
executed by the Issuers, the Subsidiary Guarantors and the Trustee without
the
consent of the Holders of any of the Debt Securities at the time Outstanding,
notwithstanding any of the provisions of Section 9.02.
In
the
case of Debt Securities subordinated pursuant to Article XII, an amendment
under
this Section 9.01 may not make any change that adversely affects the rights
under Article XII of any holder of Senior Indebtedness then outstanding unless
the holders of such Senior Indebtedness (or any group or Representative thereof
authorized to give a consent) consent to such change.
Section
9.02 Modification
of Indenture with Consent of Holders of Debt Securities.
Without
notice to any Holder but with the consent (evidenced as provided in Section
8.01) of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Debt Securities of each series affected by such supplemental
Indenture (including consents obtained in connection with a tender offer or
exchange offer for any such series of Debt Securities), the Issuers and the
Subsidiary Guarantors, when authorized by resolutions of each Issuer’s Board of
Directors, and the Trustee may from time to time and at any time enter into
an
Indenture or Indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Indenture or of any supplemental Indenture or of
modifying in any manner the rights of the Holders of the Debt Securities of
such
series; provided, that no such supplemental Indenture, without the consent
of
the Holders of each Debt Security so affected, shall: reduce the percentage
in
principal amount of Debt Securities of any series whose Holders must consent
to
an amendment; reduce the rate of or extend the time for payment of interest
on
any Debt Security; reduce the principal of or extend the Stated Maturity of
any
Debt Security; reduce any premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed
in accordance with Article III; make any Debt Security payable in currency
other
than the Dollar; impair the right of any Holder to receive payment of premium,
if any, principal of and interest on such Holder’s Debt 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 Debt Securities; in the case of any Debt
Security subordinated pursuant to Article XII, make any change in Article XII
that adversely affects the rights of any Holder under Article XII; release
any
security that may have been granted in respect of the Debt Securities, other
than in accordance with this Indenture; make any change in Section 6.06 or
this
Section 9.02; or, except as provided in Section 11.02(b) or Section 14.04,
release the Subsidiary Guarantors other than as provided in this Indenture
or
modify the Guarantee in any manner adverse to the Holders.
A
supplemental Indenture which changes or eliminates any covenant or other
provision of this Indenture which has been expressly included solely for the
benefit of one or more particular series of Debt Securities or which modifies
the rights of the Holders of Debt Securities of such series with respect to
such
covenant or other provision, shall be deemed not to affect the rights under
this
Indenture of the Holders of Debt Securities of any other series.
Upon
the
request of the Issuers, accompanied by a copy of resolutions of the Board of
Directors of each Issuer authorizing the execution of any such supplemental
Indenture, and upon the filing with the Trustee of evidence of the consent
of
Holders as aforesaid, the Trustee shall join with the Issuers and the Subsidiary
Guarantors in the execution of such supplemental Indenture unless such
supplemental Indenture 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 supplemental
Indenture.
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It
shall
not be necessary for the consent of the Holders under this Section 9.02 to
approve the particular form of any proposed supplemental Indenture, but it
shall
be sufficient if such consent shall approve the substance thereof.
In
the
case of any Debt Securities subordinated pursuant to Article XII, an amendment
under this Section 9.02 may not make any change that adversely affects the
rights under Article XII of any holder of Senior Indebtedness then outstanding
unless the holders of such Senior Indebtedness (or any group or Representative
thereof authorized to give a consent) consent to such change.
After
an
amendment under this Section 9.02 requiring the consent of the Holders of any
series of Debt Securities becomes effective, the Issuers shall mail to Holders
of that series of Debt Securities of each series affected thereby a notice
briefly describing such amendment. The failure to give such notice to any such
Holders, or any defect therein, shall not impair or affect the validity of
an
amendment under this Section 9.02 with respect to other Holders.
Section
9.03 Effect
of Supplemental Indentures.
Upon
the
execution of any supplemental Indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended
in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Issuers, the Subsidiary Guarantors and the Holders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental Indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
The
Trustee, subject to the provisions of Section 7.01 and Section 7.02, may receive
an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that
any such supplemental Indenture complies with the provisions of this Article
IX.
Section
9.04 Debt
Securities May Bear Notation of Changes by Supplemental
Indentures.
Debt
Securities of any series authenticated and delivered after the execution of
any
supplemental Indenture pursuant to the provisions of this Article IX may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental Indenture. New Debt
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental Indenture may be prepared and executed by
the
Issuers, authenticated by the Trustee and delivered in exchange for the Debt
Securities of such series then Outstanding. Failure to make the appropriate
notation or to issue a new Debt Security of such series shall not affect the
validity of such amendment.
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ARTICLE
X.
CONSOLIDATION,
MERGER, SALE OR CONVEYANCE
Section
10.01 Consolidations
and Mergers of the Issuers.
Neither
of the Issuers may consolidate or amalgamate with or merge with or into any
Person, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all its assets to any Person, whether in a single transaction
or a
series of related transactions, unless: (a) either (i) such Issuer shall be
the
surviving Person in the case of a merger or (ii) the resulting, surviving or
transferee Person if other than such Issuer (the “Successor Company”), shall be
a partnership, limited liability company or corporation organized and existing
under the laws of the United States, any State thereof or the District of
Columbia and the Successor Company shall expressly assume, by an Indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of such Issuer under this Indenture and
the
Debt Securities according to their tenor; (b) immediately after giving effect
to
such transaction or series of transactions (and treating any Debt which becomes
an obligation of the Successor Company or any Subsidiary of such Issuer as
a
result of such transaction as having been incurred by the Successor Company
or
such Subsidiary at the time of such transaction or series of transactions),
no
Default or Event of Default would occur or be continuing; (c) if such Issuer
is
not the continuing Person, then each Subsidiary Guarantor, unless it has become
the Successor Company, shall confirm that its Guarantee shall continue to apply
to the obligations under the Debt Securities and this Indenture; and (d) the
Issuers shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, amalgamation, merger
or disposition and such supplemental Indenture (if any) comply with this
Indenture.
Section
10.02 Rights
and Duties of Successor Company.
In
case
of any consolidation, amalgamation or merger where such Issuer is not the
continuing Person, or disposition of all or substantially all of the assets
of
such Issuer in accordance with Section 10.01, the Successor Company shall
succeed to and be substituted for such Issuer with the same effect as if it
had
been named herein as the respective party to this Indenture, and the predecessor
entity shall be released from all liabilities and obligations under this
Indenture and the Debt Securities, except that no such release will occur in
the
case of a lease of all or substantially all of such Issuer’s assets. The
Successor Company thereupon may cause to be signed, and may issue either in
its
own name or in the name of such Issuer, any or all the Debt Securities issuable
hereunder which theretofore shall not have been signed by or on behalf of such
Issuer and delivered to the Trustee; and, upon the order of the Successor
Company, instead of such Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debt Securities which previously shall have been signed and
delivered by or on behalf of such Issuer to the Trustee for authentication,
and
any Debt Securities which the Successor Company thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Debt Securities
so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all such Debt Securities had been
issued at the date of the execution hereof.
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In
case
of any such consolidation, amalgamation, merger, sale or disposition such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities thereafter to be issued as may be appropriate.
ARTICLE
XI.
SATISFACTION
AND DISCHARGE OF
INDENTURE;
DEFEASANCE; UNCLAIMED MONEYS
Section
11.01 Applicability
of Article.
The
provisions of this Article XI relating to discharge or defeasance of Debt
Securities shall be applicable to each series of Debt Securities except as
otherwise specified pursuant to Section 2.03 for Debt Securities of such
series.
Section
11.02 Satisfaction
and Discharge of Indenture; Defeasance.
(a) If
at any
time the Issuers shall have delivered to the Trustee for cancellation all Debt
Securities of any series theretofore authenticated and delivered (other than
any
Debt Securities of such series which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.09 and
Debt
Securities for whose payment money has theretofore been deposited in trust
and
thereafter repaid to the Issuers as provided in Section 11.05) or all Debt
Securities of such series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice
of
redemption, and the Issuers shall deposit with the Trustee as trust funds the
entire amount in cash sufficient to pay at final maturity or upon redemption
all
Debt Securities of such series not theretofore delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or
to
become due on such date of maturity or Redemption Date, as the case may be,
and
if in either case the Issuers shall also pay or cause to be paid all other
sums
payable hereunder by the Issuers, then this Indenture shall cease to be of
further effect (except as to any surviving rights of registration of transfer
or
exchange of such Debt Securities herein expressly provided for) with respect
to
the Debt Securities of such series, and the Trustee, on demand of the Issuers
accompanied by an Officers’ Certificate and an Opinion of Counsel and at the
cost and expense of the Issuers, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to the Debt
Securities of such series.
(b) Subject
to 11.02(c), Section 11.03 and Section 11.07, the Issuers at any time may
terminate, with respect to Debt Securities of a particular series, all its
obligations under the Debt Securities of such series and this Indenture with
respect to the Debt Securities of such series (“legal defeasance option”) or the
operation of (w) Section 4.09 and Section 4.10, (x) any covenant made
applicable to such Debt Securities pursuant to Section 2.03, (y) Section
6.01(d), Section 6.01(g) and Section 6.01(h) and (z) as they relate to the
Subsidiary Guarantors only, Section 6.01(e) and Section 6.01(f) (“covenant
defeasance option”). If the Issuers exercise either their legal defeasance
option or their covenant defeasance option with respect to Debt Securities
of a
particular series that are entitled to the benefit of the Guarantee, the
Guarantee will terminate with respect to that series of Debt Securities. The
Issuers may exercise their legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
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If
the
Issuers exercise their legal defeasance option, payment of the Debt Securities
of the defeased series may not be accelerated because of an Event of Default.
If
the Issuers exercise their covenant defeasance option, payment of the Debt
Securities of the defeased series may not be accelerated because of an Event
of
Default specified in Section 6.01(d), Section 6.01(g) and Section 6.01(h) and,
with respect to the Subsidiary Guarantors only, Section 6.01(e) and Section
6.01(f).
Upon
satisfaction of the conditions set forth herein and upon request of the Issuers,
the Trustee shall acknowledge in writing the discharge of those obligations
that
the Issuers terminate.
(c) Notwithstanding
clauses (a) and (b) above, the Issuers’ obligations in Section 2.07, Section
2.09, Section 4.02, Section 4.03, Section 4.04, the last sentence of Section
4.05(a), Section 4.06(a), Section 5.01, Section 7.06, Section 11.05, Section
11.06 and Section 11.07 shall survive until the Debt Securities of the defeased
series have been paid in full. Thereafter, the Issuers’ obligations in Section
7.06, Section 11.05 and Section 11.06 shall survive.
Section
11.03 Conditions
of Defeasance.
The
Issuers may exercise their legal defeasance option or its covenant defeasance
option with respect to Debt Securities of a particular series only
if:
(a) the
Issuers irrevocably deposit in trust with the Trustee money or U.S. Government
Obligations for the payment of principal of, and premium, if any, and interest
on, the Debt Securities of such series to final maturity or redemption, as
the
case may be;
(b) the
Issuers deliver to the Trustee a certificate from a nationally recognized firm
of independent accountants expressing their opinion that the payments of
principal and interest when due and without reinvestment on the deposited U.S.
Government Obligations plus any deposited money without investment will provide
cash at such times and in such amounts as will be sufficient to pay the
principal, premium, if any, and interest when due on all the Debt Securities
of
such series to final maturity or redemption, as the case may be;
(c) 91
days
pass after the deposit is made and during the 91-day period no Default specified
in Section 6.01(e) or Section 6.01(f) with respect to the Issuers occurs which
is continuing at the end of the period;
(d) no
Default has occurred and is continuing on the date of such deposit and after
giving effect thereto;
(e) the
deposit does not constitute a default under any other agreement binding on
the
Issuers and, if the Debt Securities of such series are subordinated pursuant
to
Article XII, is not prohibited by Article XII;
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(f) the
Issuers deliver 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;
(g) in
the
event of the legal defeasance option, the Issuers shall have delivered to the
Trustee an Opinion of Counsel stating that the Issuers have received from the
Internal Revenue Service a ruling, or since the date of this Indenture there
has
been a change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the
Holders of Debt Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance and will
be
subject to Federal income tax on the same amounts, in the same manner and at
the
same times as would have been the case if such defeasance had not
occurred;
(h) in
the
event of the covenant defeasance option, the Issuers shall have delivered to
the
Trustee an Opinion of Counsel to the effect that the Holders of Debt Securities
of such series will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not occurred; and
(i) the
Issuers deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance and
discharge of the Debt Securities of such series as contemplated by this Article
XI have been complied with.
Before
or
after a deposit, the Issuers may make arrangements satisfactory to the Trustee
for the redemption of Debt Securities of such series at a future date in
accordance with Article III.
Section
11.04 Application
of Trust Money.
The
Trustee shall hold in trust money or U.S. Government Obligations deposited
with
it pursuant to this Article XI. It shall apply the deposited money and the
money
from U.S. Government Obligations through any paying agent and in accordance
with
this Indenture to the payment of principal of, and premium, if any, and interest
on, the Debt Securities of the defeased series. In the event the Debt Securities
of the defeased series are subordinated pursuant to Article XII, money and
securities so held in trust are not subject to Article XII.
Section
11.05 Repayment
to Issuers.
The
Trustee and any paying agent shall promptly turn over to the Issuers upon
request any excess money or securities held by them at any time.
Subject
to any applicable abandoned property law, the Trustee and any paying agent
shall
pay to the Issuers upon request any money held by them for the payment of
principal, premium or interest that remains unclaimed for two years, and,
thereafter, Holders entitled to such money must look to the Issuers for payment
as general creditors.
Section
11.06 Indemnity
for U.S. Government Obligations.
The
Issuers shall pay and shall indemnify the Trustee and the Holders against any
tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
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Section
11.07 Reinstatement.
If
the
Trustee or any paying agent is unable to apply any money or U.S. Government
Obligations in accordance with this Article XI by reason of any legal proceeding
or by reason of any order or judgment of any court or government authority
enjoining, restraining or otherwise prohibiting such application, the Issuers’
obligations under this Indenture and the Debt Securities of the defeased series
shall be revived and reinstated as though no deposit had occurred pursuant
to
this Article XI until such time as the Trustee or any paying agent is permitted
to apply all such money or U.S. Government Obligations in accordance with this
Article XI.
ARTICLE
XII.
SUBORDINATION
OF DEBT SECURITIES AND GUARANTEE
Section
12.01 Applicability
of Article; Agreement to Subordinate.
The
provisions of this Article XII shall only be applicable to the Debt Securities
of any series (Debt Securities of such series referred to in this Article XII
as
“Subordinated Debt Securities”) designated, pursuant to Section 2.03, as
subordinated to Senior Indebtedness and any related Guarantee of such
Subordinated Debt Securities. Each Holder by accepting a Subordinated Debt
Security agrees that the Debt evidenced by such Subordinated Debt Security
and
any related Guarantee of such Subordinated Debt Security is subordinated in
right of payment, to the extent and in the manner provided in this Article
XII,
to the prior payment of all Senior Indebtedness and that the subordination
is
for the benefit of and enforceable by the holders of Senior Indebtedness. All
provisions of this Article XII shall be subject to Section 2.12.
Section
12.02 Liquidation,
Dissolution, Bankruptcy.
Upon
any
payment or distribution of the assets of any of the Issuers or the Subsidiary
Guarantors to creditors (i) upon a liquidation or a dissolution of any of the
Issuers or the Subsidiary Guarantors or (ii) in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to any of the Issuers
or
the Subsidiary Guarantors or its property:
(a) holders
of Senior Indebtedness of the Issuers or any Subsidiary Guarantor, as the case
may be, shall be entitled to receive payment in full in cash of such Senior
Indebtedness of such Person (including interest (if any), accruing on or after
the commencement of a proceeding in bankruptcy, whether or not allowed as a
claim against any of the Issuers or the Subsidiary Guarantors, as the case
may
be, in such bankruptcy proceeding) before Holders of Subordinated Debt
Securities and any related Guarantee shall be entitled to receive any payment
of
principal of, or premium, if any, or interest on, the Subordinated Debt
Securities from the Issuers, or any payment in respect of the Guarantee from
the
Subsidiary Guarantors; and
(b) until
the
Senior Indebtedness of the Issuers or any Subsidiary Guarantor, as the case
may
be, is paid in full, any distribution to which Holders of Subordinated Debt
Securities and any related Guarantee would be entitled but for this Article
XII
shall be made to holders of Senior Indebtedness of the Issuers or the Subsidiary
Guarantors, as the case may be, as their interests may appear, except that
such
Holders may receive capital stock and any debt securities that are subordinated
to Senior Indebtedness of any of the Issuers or the Subsidiary Guarantors,
as
the case may be, to at least the same extent as the Subordinated Debt Securities
of the Issuers or the related Guarantee of any Subsidiary Guarantor,
respectively.
-53-
Section
12.03 Default
on Senior Indebtedness.
The
Issuers and the Subsidiary Guarantors may not pay the principal of, or premium,
if any, or interest on, the Subordinated Debt Securities or any related
Guarantee or make any deposit pursuant to Article XI and may not repurchase,
redeem or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund pursuant to Section 3.05, by the
delivery of Subordinated Debt Securities by the Issuers to the Trustee pursuant
to the first paragraph of Section 3.05) any Subordinated Debt Securities
(collectively, “pay the Subordinated Debt Securities”) if any principal, premium
or interest in respect of Senior Indebtedness of such Person is not paid within
any applicable grace period (including at maturity) or any other default on
Senior Indebtedness of such Person occurs and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms unless and until the
default has been cured or waived and any such acceleration has been rescinded
or
such Senior Indebtedness has been paid in full in cash; provided, however,
that
the Issuers and the Subsidiary Guarantors may make payments on the Subordinated
Debt Securities or any related Guarantee without regard to the foregoing if
the
Issuers and the Trustee receive written notice approving such payment from
the
Representative of each issue of Designated Senior Indebtedness. During the
continuance of any other default with respect to any Designated Senior
Indebtedness pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or the expiration of any applicable grace periods,
the
Issuers and the Subsidiary Guarantors may not make payments on the Subordinated
Debt Securities or any related Guarantee for a period (a “Payment Blockage
Period”) commencing upon the receipt by the Issuers and the Trustee (and if such
Designated Senior Indebtedness is Debt of a Subsidiary Guarantor, the Subsidiary
Guarantor) of written notice of such default from the Representative of any
Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period (a “Blockage Notice”) and ending 179 days thereafter (or earlier
if such Payment Blockage Period is terminated by written notice to the Trustee
and the Issuers (and if such Designated Senior Indebtedness is Debt of a
Subsidiary Guarantor, the Subsidiary Guarantor) from the Person or Persons
who
gave such Blockage Notice, by repayment in full in cash of such Designated
Senior Indebtedness or because the default giving rise to such Blockage Notice
is no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in
Section 12.02 and the first sentence of this Section 12.03), unless the holders
of such Designated Senior Indebtedness or the Representative of such holders
shall have accelerated the maturity of such Designated Senior Indebtedness,
the
Issuers and the Subsidiary Guarantors may resume payments on the Subordinated
Debt Securities and related Guarantees after such Payment Blockage Period.
Not
more than one Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to any number of issues
of
Designated Senior Indebtedness during such period, unless otherwise specified
pursuant to Section 2.03 for the Subordinated Debt Securities of a series;
provided, however, that in no event may the total number of days during which
any Payment Blockage Period or Periods is in effect exceed 179 days in the
aggregate during any 360 consecutive day period. For purposes of this Section
12.03, no default or event of default which existed or was continuing on the
date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage Period shall
be,
or be made, the basis of the commencement of a subsequent Payment Blockage
Period by the Representative of such Designated Senior Indebtedness, whether
or
not within a period of 360 consecutive days, unless such default or event of
default shall have been cured or waived for a period of not less than 90
consecutive days.
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Section
12.04 Acceleration
of Payment of Debt Securities.
If
payment of the Subordinated Debt Securities is accelerated because of an Event
of Default, the Issuers shall promptly notify the holders of the Designated
Senior Indebtedness (or their Representatives) of the acceleration.
Section
12.05 When
Distribution Must Be Paid Over.
If
a
distribution is made to Holders of Subordinated Debt Securities or a related
Guarantee that because of this Article XII should not have been made to them,
the Holders who receive such distribution shall hold it in trust for holders
of
Senior Indebtedness and pay it over to them as their interests may
appear.
Section
12.06 Subrogation.
After
all
Senior Indebtedness is paid in full and until the Subordinated Debt Securities
are paid in full, Holders thereof shall be subrogated to the rights of holders
of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness. A distribution made under this Article XII to holders of Senior
Indebtedness which otherwise would have been made to Holders of Subordinated
Debt Securities is not, as between the Issuers or the Subsidiary Guarantors,
as
the case may be, and such Holders, a payment by the Issuers or the Subsidiary
Guarantors, as the case may be, on Senior Indebtedness.
Section
12.07 Relative
Rights.
This
Article XII defines the relative rights of Holders of Subordinated Debt
Securities and holders of Senior Indebtedness. Nothing in this Indenture
shall:
(a) impair,
as between the Issuers or the Subsidiary Guarantors, as the case may be, and
Holders of Subordinated Debt Securities, the obligation of the Issuers or the
Subsidiary Guarantors, as the case may be, which is absolute and unconditional,
to pay principal of, and premium, if any, and interest on, the Subordinated
Debt
Securities in accordance with their terms; or
(b) prevent
the Trustee or any Holder of Subordinated Debt Securities from exercising its
available remedies upon an Event of Default, subject to the rights of holders
of
Senior Indebtedness to receive distributions otherwise payable to Holders of
Subordinated Debt Securities.
Section
12.08 Subordination
May Not Be Impaired by Issuers.
No
right
of any holder of Senior Indebtedness to enforce the subordination of the Debt
evidenced by the Subordinated Debt Securities and the Guarantee in respect
thereof shall be impaired by any act or failure to act by any of the Issuers
or
the Subsidiary Guarantors or by its failure to comply with this
Indenture.
Section
12.09 Rights
of Trustee and Paying Agent.
Notwithstanding
Section 12.02 and Section 12.03, the Trustee or any paying agent may continue
to
make payments on Subordinated Debt 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 of the Trustee receives notice satisfactory
to it
that payments may not be made under this Article XII. The Issuers, the
Registrar, any paying agent, a Representative or a holder of Senior Indebtedness
may give the notice; provided, however, that, if an issue of Senior Indebtedness
has a Representative, only the Representative may give the notice on behalf
of
the Holders of the Senior Indebtedness of that issue.
-55-
The
Trustee in its individual or any other capacity may hold Senior Indebtedness
with the same rights it would have if it were not Trustee. The Registrar and
any
paying agent may do the same with like rights. The Trustee shall be entitled
to
all the rights set forth in this Article XII with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness; and nothing in Article XII shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article XII
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.06.
Section
12.10 Distribution
or Notice to Representative.
Whenever
a distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given to their
Representative (if any).
Section
12.11 Article
XII Not to Prevent Defaults or Limit Right to Accelerate.
The
failure to make a payment pursuant to the Subordinated Debt Securities, whether
directly or pursuant to the Guarantee, by reason of any provision in this
Article XII shall not be construed as preventing the occurrence of a Default.
Nothing in this Article XII shall have any effect on the right of the Holders
or
the Trustee to accelerate the maturity of either the Subordinated Debt
Securities or the Debt Securities, as the case may be.
Section
12.12 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 XI by the Trustee
for
the payment of principal of, and premium, if any, and interest on, the
Subordinated Debt Securities or the Debt Securities shall not be subordinated
to
the prior payment of any Senior Indebtedness or subject to the restrictions
set
forth in this Article XII, and none of the Holders thereof shall be obligated
to
pay over any such amount to the Issuers, the Subsidiary Guarantors or any holder
of Senior Indebtedness of the Issuers or the Subsidiary Guarantors or any other
creditor of the Issuers or the Guarantor.
Section
12.13 Trustee
Entitled to Rely.
Upon
any
payment or distribution pursuant to this Article XII, the Trustee and the
Holders shall be entitled to rely 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, upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or
to
such Holders or upon the Representatives for the holders of Senior Indebtedness
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Indebtedness and other Debt
of any of the Issuers or the Subsidiary Guarantors, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other
facts pertinent thereto or to this Article XII. 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 Indebtedness to participate in any payment
or distribution pursuant to this Article XII, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as
to
the amount of Senior Indebtedness 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 XII, 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 Section 7.01 and Section 7.02 shall be applicable
to
all actions or omissions of actions by the Trustee pursuant to this Article
XII.
-56-
Section
12.14 Trustee
to Effectuate Subordination.
Each
Holder by accepting a Subordinated Debt Security 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 of Subordinated
Debt Securities and the holders of Senior Indebtedness as provided in this
Article XII and appoints the Trustee as attorney-in-fact for any and all such
purposes.
Section
12.15 Trustee
Not Fiduciary for Holders of Senior Indebtedness.
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall mistakenly
pay over or distribute to Holders of Subordinated Debt Securities or any of
the
Issuers or the Subsidiary Guarantors or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled by virtue of this
Article XII or otherwise.
Section
12.16 Reliance
by Holders of Senior Indebtedness on Subordination Provisions.
Each
Holder by accepting a Subordinated Debt Security 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 Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Subordinated Debt Securities, to acquire and continue to hold,
or to continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
ARTICLE
XIII.
MISCELLANEOUS
PROVISIONS
Section
13.01 Successors
and Assigns of Issuers Bound by Indenture.
All
the
covenants, stipulations, promises and agreements in this Indenture contained
by
or in behalf of the Issuers, the Subsidiary Guarantors or the Trustee shall
bind
their respective successors and assigns, whether so expressed or
not.
Section
13.02 Acts
of Board, Committee or Officer of Successor Issuer Valid.
Any
act
or proceeding by any provision of this Indenture authorized or required to
be
done or performed by any board, committee or officer of either of the Issuers
shall and may be done and performed with like force and effect by the like
board, committee or officer of any Successor Company.
Section
13.03 Required
Notices or Demands.
Any
notice or communication by the Issuers, 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 registered or certified mail (return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
other’s address:
If
to the
Issuers or any Subsidiary Guarantor:
EV
Energy
Partners, L.P.
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention:
Chief Financial Officer
If
to the
Trustee:
[____________________________
-57-
The
Issuers, any Subsidiary Guarantor or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All
notices and communications 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; on the first Business Day
on
or after being sent, if telecopied and the sender receives confirmation of
successful transmission; and the next Business Day after timely delivery to
the
courier, if sent by overnight air courier guaranteeing next day
delivery.
Any
notice required or permitted to a Holder by the Issuers, any Subsidiary
Guarantor or the Trustee pursuant to the provisions of this Indenture shall
be
deemed to be properly mailed by being deposited postage prepaid in a post office
letter box in the United States addressed to such Holder at the address of
such
Holder as shown on the Debt Security Register. Any report pursuant to Section
313 of the TIA shall be transmitted in compliance with subsection (c)
therein.
Notwithstanding
the foregoing, any notice to Holders of Floating Rate Securities regarding
the
determination of a periodic rate of interest, if such notice is required
pursuant to Section 2.03, shall be sufficiently given if given in the manner
specified pursuant to Section 2.03.
In
the
event of suspension of regular mail service or by reason of any other cause
it
shall be impracticable to give notice by mail, then such notification as shall
be given with the approval of the Trustee shall constitute sufficient notice
for
every purpose hereunder.
In
the
event it shall be impracticable to give notice by publication, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
Failure
to mail a notice or communication to a Holder or any defect in it or any defect
in any notice by publication as to a Holder shall not affect the sufficiency
of
such notice with respect to other Holders. If a notice or communication is
mailed or published in the manner provided above, it is conclusively presumed
duly given.
-58-
Section
13.04 Indenture
and Debt Securities to Be Construed in Accordance with the Laws of the State
of
New York.
THIS
INDENTURE, EACH DEBT SECURITY AND THE GUARANTEE SHALL BE DEEMED TO BE NEW YORK
CONTRACTS, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SAID STATE.
Section
13.05 Officers’
Certificate and Opinion of Counsel to Be Furnished upon Application or Demand
by
the Issuers.
Upon
any
application or demand by the Issuers to the Trustee to take any action under
any
of the provisions of this Indenture, each of the Issuers shall furnish to the
Trustee an Officers’ Certificate stating that all conditions precedent provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need
be
furnished.
Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for
in
this Indenture shall include (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 has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section
13.06 Payments
Due on Legal Holidays.
In
any
case where the date of maturity of interest on or principal of and premium,
if
any, on the Debt Securities of a series or the date fixed for redemption or
repayment of any Debt Security or the making of any sinking fund payment shall
not be a Business Day at any Place of Payment for the Debt Securities of such
series, then payment of interest or principal and premium, if any, or the making
of such sinking fund payment need not be made on such date at such Place of
Payment, but may be made on the next succeeding Business Day at such Place
of
Payment with the same force and effect as if made on the date of maturity or
the
date fixed for redemption, and no interest shall accrue for the period after
such date. If a record date is not a Business Day, the record date shall not
be
affected.
Section
13.07 Provisions
Required by TIA to Control.
If
and to
the extent that any provision of this Indenture limits, qualifies or conflicts
with another provision included in this Indenture which is required to be
included in this Indenture by any of Sections
310
to
318,
inclusive, of the TIA, such required provision shall control.
Section
13.08 Computation
of Interest on Debt Securities.
Interest,
if any, on the Debt Securities shall be computed on the basis of a 360-day
year
of twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
-59-
Section
13.09 Rules
by Trustee, Paying Agent and Registrar.
The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and any paying agent may make reasonable rules for their
functions.
Section
13.10 No
Recourse Against Others.
The
General Partner and its directors, officers, employees and members, as such,
shall have no liability for any obligations of the Subsidiary Guarantors or
the
Issuers under the Debt Securities, this Indenture or the Guarantee or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. By accepting a Debt Security, each Holder shall be deemed to have
waived and released all such liability. The waiver and release shall be part
of
the consideration for the issue of the Debt Securities.
Section
13.11 Severability.
In
case
any provision in this Indenture or the Debt 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
13.12 Effect
of Headings.
The
article and section headings herein and in the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
13.13 Indenture
May Be Executed in Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall
be
an original; but such counterparts shall together constitute but one and the
same instrument.
ARTICLE
XIV.
GUARANTEE
Section
14.01 Unconditional
Guarantee.
(a) Notwithstanding
any provision of this Article XIV to the contrary, the provisions of this
Article XIV shall be applicable only to, and inure solely to the benefit of,
the
Debt Securities of any series designated, pursuant to Section 2.03, as entitled
to the benefits of the Guarantee of each of the Subsidiary
Guarantors.
(b) For
value
received, each of the Subsidiary Guarantors hereby fully, unconditionally and
absolutely guarantees (the “Guarantee”) to the Holders and to the Trustee the
due and punctual payment of the principal of, and premium, if any, and interest
on the Debt Securities and all other amounts due and payable under this
Indenture and the Debt Securities by the Issuers, when and as such principal,
premium, if any, and interest shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise, according to the terms of the Debt Securities and this Indenture,
subject to (i) the limitations set forth in Section 14.03 and (ii) in the case
of the Guarantee of the Subordinated Debt Securities, to the subordination
provisions contained in Article XII.
(c) Failing
payment when due of any amount guaranteed pursuant to the Guarantee, for
whatever reason, each of the Subsidiary Guarantors will be jointly and severally
obligated to pay the same immediately, subject, in the case of the Guarantee
of
the Subordinated Debt Securities, to the subordination provisions contained
in
Article XII. The Guarantee hereunder (other than the Guarantee of Subordinated
Debt Securities) is intended to be a general, unsecured, senior obligation
of
each of the Subsidiary Guarantors and will rank pari passu in right of payment
with all Debt of each Subsidiary Guarantor that is not, by its terms, expressly
subordinated in right of payment to the Guarantee. Each of the Subsidiary
Guarantors hereby agrees that its obligations hereunder shall be full,
unconditional and absolute, irrespective of the validity, regularity or
enforceability of the Debt Securities, the Guarantee (including the Guarantee
of
any other Subsidiary Guarantor) or this Indenture, the absence of any action
to
enforce the same, any waiver or consent by any Holder of the Debt Securities
with respect to any provisions hereof or thereof, the recovery of any judgment
against either of the Issuers or any other Subsidiary Guarantor, or any action
to enforce the same or any other circumstances which might otherwise constitute
a legal or equitable discharge or defense of any of the Subsidiary Guarantors.
Each of the Subsidiary Guarantors hereby agrees that in the event of a default
in payment of the principal of, or premium, if any, or interest on the Debt
Securities, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise, legal proceedings may be instituted by the
Trustee on behalf of the Holders or, subject to Section 6.04, by the Holders,
on
the terms and conditions set forth in this Indenture, directly against such
Subsidiary Guarantor to enforce the Guarantee without first proceeding against
either of the Issuers or any other Subsidiary Guarantor.
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(d) The
obligations of each of the Subsidiary Guarantors under this Article XIV shall
be
as aforesaid full, unconditional and absolute and shall not be impaired,
modified, released or limited by any occurrence or condition whatsoever,
including, without limitation, (A) any compromise, settlement, release, waiver,
renewal, extension, indulgence or modification of, or any change in, any of
the
obligations and liabilities of any of the Issuers or the Subsidiary Guarantors
contained in the Debt Securities or this Indenture, (B) any impairment,
modification, release or limitation of the liability of any of the Issuers
or
the Subsidiary Guarantors or any of their estates in bankruptcy, or any remedy
for the enforcement thereof, resulting from the operation of any present or
future provision of any applicable Bankruptcy Law, as amended, or other statute
or from the decision of any court, (C) the assertion or exercise by any of
the
Issuers, the Subsidiary Guarantors or the Trustee of any rights or remedies
under the Debt Securities or this Indenture or their delay in or failure to
assert or exercise any such rights or remedies, (D) the assignment or the
purported assignment of any property as security for the Debt Securities,
including all or any part of the rights of any of the Issuers or the Subsidiary
Guarantors under this Indenture, (E) the extension of the time for payment
by
any of the Issuers or the Subsidiary Guarantors of any payments or other sums
or
any part thereof owing or payable under any of the terms and provisions of
the
Debt Securities or this Indenture or of the time for performance by any of
the
Issuers or the Subsidiary Guarantors of any other obligations under or arising
out of any such terms and provisions or the extension or the renewal of any
thereof, (F) the modification or amendment (whether material or otherwise)
of
any duty, agreement or obligation of any of the Issuers or the Subsidiary
Guarantors set forth in this Indenture, (G) the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or substantially
all
of the assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceeding
affecting, any of the Issuers or the Subsidiary Guarantors or any of their
respective assets, or the disaffirmance of the Debt Securities, the Guarantee
or
this Indenture in any such proceeding, (H) the release or discharge of any
of
the Issuers or the Subsidiary Guarantors from the performance or observance
of
any agreement, covenant, term or condition contained in any of such instruments
by operation of law, (I) the unenforceability of the Debt Securities, the
Guarantee or this Indenture or (J) any other circumstances (other than payment
in full or discharge of all amounts guaranteed pursuant to the Guarantee) which
might otherwise constitute a legal or equitable discharge of a surety or
guarantor.
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(e) Each
of
the Subsidiary Guarantors hereby (A) waives diligence, presentment, demand
of
payment, filing of claims with a court in the event of the merger, insolvency
or
bankruptcy of any of the Issuers or the Subsidiary Guarantors, and all demands
whatsoever, (B) acknowledges that any agreement, instrument or document
evidencing the Guarantee may be transferred and that the benefit of its
obligations hereunder shall extend to each holder of any agreement, instrument
or document evidencing the Guarantee without notice to it and (C) covenants
that
the Guarantee will not be discharged except by complete performance of the
Guarantee. Each of the Subsidiary Guarantors further agrees that if at any
time
all or any part of any payment theretofore applied by any Person to the
Guarantee is, or must be, rescinded or returned for any reason whatsoever,
including without limitation, the insolvency, bankruptcy or reorganization
of
any of the Issuers or the Subsidiary Guarantors, the Guarantee shall, to the
extent that such payment is or must be rescinded or returned, be deemed to
have
continued in existence notwithstanding such application, and the Guarantee
shall
continue to be effective or be reinstated, as the case may be, as though such
application had not been made.
(f) Each
of
the Subsidiary Guarantors shall be subrogated to all rights of the Holders
and
the Trustee against the Issuers in respect of any amounts paid by such
Subsidiary Guarantor pursuant to the provisions of this Indenture, provided,
however, that such Subsidiary Guarantor, shall not be entitled to enforce or
to
receive any payments arising out of, or based upon, such right of subrogation
until all of the Debt Securities and the Guarantee shall have been paid in
full
or discharged.
Section
14.02 Execution
and Delivery of Guarantee.
To
further evidence the Guarantee set forth in Section 14.01, each of the
Subsidiary Guarantors hereby agrees that a notation relating to such Guarantee,
substantially in the form attached hereto as Annex A, shall be endorsed on
each
Debt Security entitled to the benefits of the Guarantee authenticated and
delivered by the Trustee and executed by either manual or facsimile signature
of
an Officer of such Subsidiary Guarantor. Each of the Subsidiary Guarantors
hereby agrees that the Guarantee set forth in Section 14.01 shall remain in
full
force and effect notwithstanding any failure to endorse on each Debt Security
a
notation relating to the Guarantee. If any Officer of any Subsidiary Guarantor
whose signature is on this Indenture or a Debt Security no longer holds that
office at the time the Trustee authenticates such Debt Security or at any time
thereafter, the Guarantee of such Debt Security shall be valid nevertheless.
The
delivery of any Debt Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of the Subsidiary Guarantors.
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The
Trustee hereby accepts the trusts in this Indenture upon the terms and
conditions herein set forth.
Section
14.03 Limitation
on Subsidiary Guarantors’ Liability.
(a) Each
Subsidiary Guarantor and by its acceptance hereof each Holder of a Debt Security
entitled to the benefits of the Guarantee hereby confirm that it is the
intention of all such parties that the guarantee by such Subsidiary Guarantor
pursuant to the Guarantee not constitute a fraudulent transfer or conveyance
for
purposes of any Federal or state law. To effectuate the foregoing intention,
the
Holders of a Debt Security entitled to the benefits of the Guarantee and the
Subsidiary Guarantors hereby irrevocably agree that the obligations of each
Subsidiary Guarantor under the Guarantee shall be limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities
of
such Subsidiary Guarantor and to any collections from or payments made by or
on
behalf of any other Subsidiary Guarantor in respect of the obligations of such
other Subsidiary Guarantor under the Guarantee, not result in the obligations
of
such Subsidiary Guarantor under the Guarantee constituting a fraudulent
conveyance or fraudulent transfer under Federal or state law.
Section
14.04 Release
of Subsidiary Guarantors from Guarantee.
(a) Notwithstanding
any other provisions of this Indenture, the Guarantee of any Subsidiary
Guarantor may be released upon the terms and subject to the conditions set
forth
in Section 11.02(b) and in this Section 14.04. Provided that no Default shall
have occurred and shall be continuing under this Indenture, the Guarantee
incurred by a Subsidiary Guarantor pursuant to this Article XIV shall be
unconditionally released and discharged (i) automatically upon (A) any sale,
exchange or transfer, whether by way of merger or otherwise, to any Person
that
is not an Affiliate of the Partnership, of all of the Partnership’s direct or
indirect limited partnership or other equity interests in such Subsidiary
Guarantor (provided such sale, exchange or transfer is not prohibited by this
Indenture) or (B) the merger of such Subsidiary Guarantor into either of the
Issuers or any other Subsidiary Guarantor or the liquidation and dissolution
of
such Subsidiary Guarantor (in each case to the extent not prohibited by this
Indenture) or (ii) upon the Issuers’ delivery of a written notice to the Trustee
of the release or discharge of all guarantees by such Subsidiary Guarantor
of
any Debt of the Issuers other than obligations arising under this Indenture
and
any Debt Securities issued hereunder, except a discharge or release by or as
a
result of payment under such guarantees.
(b) The
Trustee shall deliver an appropriate instrument evidencing any release of a
Subsidiary Guarantor from the Guarantee upon receipt of a written request of
the
Issuers accompanied by an Officers’ Certificate and an Opinion of Counsel to the
effect that the Subsidiary Guarantor is entitled to such release in accordance
with the provisions of this Indenture. Any Subsidiary Guarantor not so released
shall remain liable for the full amount of principal of (and premium, if any)
and interest on the Debt Securities entitled to the benefits of the Guarantee
as
provided in this Indenture, subject to the limitations of Section
14.03.
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Section
14.05 Subsidiary
Guarantor Contribution.
In
order
to provide for just and equitable contribution among the Subsidiary Guarantors,
the Subsidiary Guarantors hereby agree, inter se, that in the event any payment
or distribution is made by any Subsidiary Guarantor (a “Funding Guarantor”)
under the Guarantee, such Funding Guarantor shall be entitled to a contribution
from each other Subsidiary Guarantor (if any) in a pro rata amount based on
the
net assets of each Subsidiary Guarantor (including the Funding Guarantor) for
all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Issuers’ obligations with respect to the Debt Securities or any
other Subsidiary Guarantor’s obligations with respect to the
Guarantee.
[Remainder
of This Page Intentionally Left Blank.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the day and year first above written.
| EV ENERGY PARTNERS, L.P. | ||
|
|
By:
|
EV ENERGY GP, L.P.,
its
General Partner
|
|
|
By:
|
EV MANAGEMENT, LLC,
its
General Partner
|
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| EV ENERGY FINANCE CORP. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| [NAME OF SUBSIDIARY GUARANTOR(S)] | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
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ANNEX
A
NOTATION
OF GUARANTEE
Each
of
the Subsidiary Guarantors (which term includes any successor Person under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture,
the
due and punctual payment of the principal of, and premium, if any, and interest
on the Debt Securities and all other amounts due and payable under the Indenture
and the Debt Securities by the Issuers.
The
obligations of the Subsidiary Guarantors to the Holders of Debt Securities
and
to the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth in Article XIV of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee.
| [NAME OF SUBSIDIARY GUARANTOR(S)] | ||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
|
||
|
Title:
|
||
|
|
||
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