Exhibit 4.2
INDENTURE
dated as of November 21, 2000
among
ARBY'S FRANCHISE TRUST,
as Issuer,
AMBAC ASSURANCE CORPORATION,
as Insurer
and
BNY MIDWEST TRUST COMPANY, A BANK OF NEW YORK COMPANY
as Indenture Trustee
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Definitions....................................................
SECTION 1.02 Interpretation.................................................
ARTICLE TWO
THE NOTES
SECTION 2.01 Forms Generally................................................
SECTION 2.02 Forms of Notes and Certificates of Authentication..............
SECTION 2.03 Authorized Amount; Denominations...............................
SECTION 2.04 Execution, Authentication, Delivery and Dating.................
SECTION 2.05 Registration of Notes, Registration of Transfers and Exchange..
SECTION 2.06 Mutilated, Defaced, Destroyed, Lost or Stolen Notes............
SECTION 2.07 Payment of Principal and Interest; Principal and Interest Rights
Preserved......................................................
SECTION 2.08 Persons Deemed Owners..........................................
SECTION 2.09 Cancellation...................................................
SECTION 2.10 Tax Purposes...................................................
SECTION 2.11 Withholding Tax................................................
SECTION 2.12 Actions Under the Policy.......................................
SECTION 2.13 Subrogation Rights of the Insurer; Payment of Reimbursements...
SECTION 2.14 Additional Covenant of the Insurer.............................
SECTION 2.15 Policy Account.................................................
ARTICLE THREE
REPRESENTATIONS AND COVENANTS
SECTION 3.01 Payment of Principal and Interest..............................
SECTION 3.02 Maintenance of Office or Agency................................
SECTION 3.03 Money for Note Payments to Be Held in Trust....................
SECTION 3.04 Existence of the Issuer........................................
SECTION 3.05 Protection of Trust Estate.....................................
SECTION 3.06 Performance of Obligations.....................................
SECTION 3.07 Negative Covenants.............................................
SECTION 3.08 Issuer May Not Consolidate, Etc., Without Consent..............
SECTION 3.09 Successor Substituted..........................................
SECTION 3.10 No Other Business..............................................
SECTION 3.11 Indebtedness...................................................
SECTION 3.12 Representations and Warranties.................................
SECTION 3.13 Note Interest Amount; Note Principal Amount....................
SECTION 3.14 Affirmative Covenants..........................................
SECTION 3.15 Further Assurances.............................................
SECTION 3.16 Financial Covenants............................................
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture........................
SECTION 4.02 Application of Trust Money.....................................
SECTION 4.03 Reinstatement..................................................
ARTICLE FIVE
REMEDIES
SECTION 5.01 Events of Default..............................................
SECTION 5.02 Insurer Defaults...............................................
SECTION 5.03 [Reserved].....................................................
SECTION 5.04 [Reserved].....................................................
SECTION 5.05 Acceleration of Maturity; Rescission and Annulment.............
SECTION 5.06 Enforcement; Recourse Limited to Collateral....................
SECTION 5.07 Application of Monies Collected by Indenture Trustee...........
SECTION 5.08 Waiver of Appraisement, Valuation, Stay and Right to Marshaling.
SECTION 5.09 Remedies Cumulative; Delay or Omission Not a Waiver............
SECTION 5.10 Control by the Insurer.........................................
ARTICLE SIX
THE INDENTURE TRUSTEE
SECTION 6.01 Certain Duties and Responsibilities............................
SECTION 6.02 Notice of Default..............................................
SECTION 6.03 Certain Rights of Indenture Trustee............................
SECTION 6.04 Not Responsible for Recitals or Issuance of Notes..............
SECTION 6.05 May Hold Notes.................................................
SECTION 6.06 Money Held in Trust............................................
SECTION 6.07 Compensation and Reimbursement.................................
SECTION 6.08 Resignation and Removal; Appointment of Successor..............
SECTION 6.09 Acceptance of Appointment by Successor.........................
SECTION 6.10 Merger, Conversion, Consolidation or Succession to Business of
Indenture Trustee..............................................
SECTION 6.11 Limitation of Liability........................................
ARTICLE SEVEN
[RESERVED]
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.01 Supplemental Indentures Without Consent of Noteholders.........
SECTION 8.02 Consents to Supplemental Indentures............................
SECTION 8.03 Execution of Supplemental Indentures...........................
SECTION 8.04 Effect of Supplemental Indentures..............................
SECTION 8.05 Reference in Notes to Supplemental Indenture...................
ARTICLE NINE
REDEMPTION OF NOTES
SECTION 9.01 Optional Redemption, Election to Redeem.........................
SECTION 9.02 Notice to Indenture Trustee, and Insurer of Optional Redemption.
SECTION 9.03 Notice of Optional Redemption or Maturity by the Issuer.........
SECTION 9.04 Notes Payable on Optional Redemption Date.......................
SECTION 9.05 Mandatory Redemption............................................
ARTICLE TEN
COLLECTION OF FUNDS AND MAINTENANCE OF ACCOUNTS
SECTION 10.01 Segregation of Money..........................................
SECTION 10.02 Collection Account; Canadian Sub-Account......................
SECTION 10.03 Disbursement of Monies from Collection Account. Distribution of
Available Funds...............................................
SECTION 10.04 Reports.......................................................
SECTION 10.05 [Reserved]....................................................
SECTION 10.06 Notices to the Insurer and the Rating Agencies................
SECTION 10.07 Debt Service Reserve Account..................................
SECTION 10.08 Seasonality Coverage Account..................................
SECTION 10.09 Indemnification Account.......................................
ARTICLE ELEVEN
SUBSTITUTION OF DEBTOR
SECTION 11.01 Conditions to Substitution....................................
SECTION 11.02 No Regard to Consequences for Individual Holders..............
SECTION 11.03 Effect of Substitution........................................
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01 Form of Documents Delivered to Indenture Trustee..............
SECTION 12.02 Governing Law.................................................
SECTION 12.03 Notices, Etc. to Indenture Trustee, Issuer, Insurer, the
Ratings Agencies and the Servicers............................
SECTION 12.04 Notices and Reports to Noteholders; Waiver of Notice..........
SECTION 12.05 Effect of Headings and Table of Contents......................
SECTION 12.06 Successors and Assigns........................................
SECTION 12.07 Severability..................................................
SECTION 12.08 Benefits of Indenture.........................................
SECTION 12.09 Counterparts..................................................
SECTION 12.10 Submission to Jurisdiction....................................
SECTION 12.11 Resignation or Removal of a Servicer..........................
SECTION 12.12 Calculations..................................................
SECTION 12.13 Prescription..................................................
SECTION 12.14 No Petition...................................................
EXHIBIT A-1 FORM OF TEMPORARY REGULATION S GLOBAL NOTE
EXHIBIT A-2 FORM OF PERMANENT REGULATION S GLOBAL NOTE
EXHIBIT B FORM OF RULE 144A GLOBAL NOTE
EXHIBIT C FORM OF DEFINITIVE NOTE
EXHIBIT D FORM OF REGISTERED NOTE
EXHIBIT E FORM OF CLEARANCE CERTIFICATE FOR DELIVERY OF PERMANENT
REGULATION S GLOBAL NOTES
EXHIBIT F FORM OF CERTIFICATE OF NON- U.S. OWNERSHIP
EXHIBIT G FORM OF TRANSFEROR CERTIFICATE FOR TRANSFER OF NOTES (RULE 144A)
EXHIBIT H FORM OF TRANSFEREE CERTIFICATE FOR TRANSFER OF NOTES (RULE 144A)
EXHIBIT I FORM OF TRANSFEROR CERTIFICATE FOR TRANSFER OF NOTES
(REGULATION S)
EXHIBIT J FORM OF TRANFEREE CERTIFICATE FOR TRANSFER OF NOTES
(REGULATION S)
EXHIBIT K FORM OF DTC NOTICE TO INVESTORS
EXHIBIT L TARGETED PRINCIPAL AMORTIZATION SCHEDULE
EXHIBIT M FORMS OF REPORTS
INDENTURE, dated as of November 21, 2000, among ARBY'S
FRANCHISE TRUST, a business trust formed under the laws of the State of Delaware
(the "Issuer"), AMBAC ASSURANCE CORPORATION, a Wisconsin stock insurance
corporation (the "Insurer"), and BNY MIDWEST TRUST COMPANY, A BANK OF NEW YORK
COMPANY, an Illinois banking corporation, as indenture trustee (in such
capacity, together with its permitted successors and assigns in such capacity,
the "Indenture Trustee").
PRELIMINARY STATEMENT
The Issuer is duly authorized to execute and deliver this
Indenture to provide for the Notes issuable as provided in this Indenture. All
covenants and agreements made by the Issuer herein are for the benefit and
security of the Secured Parties. Concurrently with the execution of this
Indenture and the issuance of the Notes and subject to the terms and conditions
contained in the Insurance Agreement, the Insurer will issue and deliver to and
in favor of the Indenture Trustee for the benefit of the Noteholders the Policy
which, subject to certain terms and conditions contained therein,
unconditionally and irrevocably guarantees the payment of interest payable on
each Payment Date (other than Additional Interest) and payment of any Aggregate
Outstanding Principal Amount remaining on the Legal Final Payment Date to the
Noteholders. The Issuer is entering into this Indenture, and the Indenture
Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
All things necessary to make this Indenture a valid agreement
of the Issuer in accordance with its terms have been done.
GRANTING CLAUSES
To secure (A) the payment of the principal of and interest on
the Notes authenticated and delivered hereunder, (B) the payment of amounts due
and payable to the Insurer as provided herein and in the Insurance Agreement
(including but not limited to the Premium), (C) the payment to the Indenture
Trustee of all Indenture Trustee Fees if and when due and payable as provided in
this Indenture and (D) the payment and performance of all other obligations,
covenants and liabilities of the Issuer arising under this Indenture, the Notes
and the Insurance Agreement, the Issuer hereby Grants a security interest to the
Indenture Trustee, for the benefit and security of the Secured Parties, in all
of its right, title and interest, whether now owned or hereafter acquired, in
and to all accounts, contract rights, general intangibles, chattel paper,
instruments, financial assets, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit, and certificated and
uncertificated securities consisting of, arising from, or relating to: (i) the
Franchisee Payments and Franchise Documents, including the present and
continuing exclusive right, remedy, power and authority to exercise each and
every right, remedy, power and authority of the Issuer under or in respect of
the Franchisee Payments and Franchise Documents but excluding the Pre-Cut-Off
Date Franchisee Payments; (ii) the present and continuing exclusive right, power
and authority, subject to the provisions of the Servicing Agreements, to make
claim for, collect, receive and make receipt for any of the sums, amounts,
income, revenues, issues, profits and proceeds under, on account of or with
respect to, the Franchise Assets (excluding the Pre-Cut-Off Date Franchisee
Payments), including, without limitation, all payments made in respect thereof,
voluntary or involuntary, whether upon maturity, prepayment, acceleration,
conversion, liquidation, casualty or otherwise and paid from any source
(including both timely and delinquent payments); (iii) all monies and securities
from time to time held by the Indenture Trustee in any Account created under the
terms of this Indenture and all interest, profits, proceeds, or other income
derived from such moneys and securities; (iv) the Transaction Documents,
including the present and continuing exclusive right, power and authority to
exercise each and every right, remedy, power and authority of the Issuer
thereunder; (v) the present and continuing exclusive right, power and authority,
subject to the provisions of the Servicing Agreements and this Indenture, to
give and receive notices and other communications, to make waivers or other
agreements in respect of, or to make claims for and demand performance on, under
or pursuant to any of the Franchise Assets, to bring actions and proceedings
thereunder or for the enforcement thereof, and to exercise all remedies, powers,
privileges and options and to do any and all things which the Issuer is or may
become entitled to do under or in respect of the Franchise Assets; (vi) any and
all property of every name and nature, now or hereafter transferred, mortgaged,
pledged or assigned as security or additional security for payment or
performance of any obligation of the Franchisees to the Issuer under the
Franchise Documents or otherwise, and the liabilities, obligations and the
indebtedness evidenced thereby or reflected therein; and (vii) all income,
revenues, issues, products, revisions, substitutions, replacements, profit and
proceeds of and from all of the foregoing (collectively, the "Collateral").
The Indenture Trustee acknowledges each such Grant, accepts
the trusts hereunder in accordance with the provisions hereof and agrees to
perform the duties expressly set forth herein.
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Definitions. As used herein the following terms
have the following meanings:
"Account" shall mean any account or fund, and any subaccount
thereof, established under Article Ten hereof.
"Accountants' Certificate" shall mean a certificate of any
firm of independent certified public accountants of national reputation in the
United States.
"Accounting Date" shall mean, with respect to any Payment
Date, the 10th calendar day of the calendar month of such Payment Date or if
such day is not a Business Day, the next succeeding Business Day.
"Accrual Period" shall mean, with respect to any Payment Date,
the period from and including the prior Payment Date to but excluding such
Payment Date. For purposes of the first Payment Date, the Accrual Period will be
the period from and including the Closing Date to but excluding December 20,
2000.
"Additional Interest" shall mean any interest accrued at the
Note Rate on overdue interest on the Notes to the extent permitted by law.
"Additional Premium Amount" shall mean the amount equal to the
sum of the Incremental Additional Premiums.
"Advertising Fees" shall mean an advertising and marketing fee
payable by the Franchisee to the Franchisor pursuant to the U.S. Franchise
Agreements of up to two percent (2%) of monthly Gross Sales (or up to 1.5% of
monthly Gross Sales under certain Franchise Agreements as specified therein) or
such other greater percentage of which the Indenture Trustee and the Insurer
shall have been given notice by the American Servicer certifying that such
greater percentage has been established for new U.S. Franchise Agreements (and
American Servicer shall, upon the request of either the Indenture Trustee or the
Insurer, deliver such substantiation thereof as may reasonably be requested by
the Insurer or the Indenture Trustee). For avoidance of doubt, the Advertising
Fees received by the Issuer will not be part of the Trust Estate.
"Affiliate" of any specified Person shall mean any other
Person directly or indirectly controlling, 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 through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Members" shall mean members of, or participants in,
Euroclear or Clearstream.
"Aggregate Outstanding Principal Amount" shall mean, when used
with respect to any Outstanding Note or all Outstanding Notes, the aggregate
unpaid principal amount of such Note or Notes at the date of determination,
provided, however, to the extent that principal of the Notes has been paid with
the proceeds of the Policy, such principal amount shall continue to remain
unpaid for purposes of this definition until the Insurer has been paid such
principal amount as subrogee hereunder or reimbursed pursuant to the Insurance
Agreement, in either such case, as evidenced by a written notice from the
Insurer delivered to the Indenture Trustee and the Issuer (such notice not to be
unreasonably withheld or delayed).
"American Servicer" shall mean Arby's, as servicer under the
American Servicing Agreement, until a successor Person shall have become the
American Servicer pursuant to the provisions of the American Servicing Agreement
and thereafter "American Servicer" shall mean such successor Person.
"American Servicing Agreement" shall mean the Servicing
Agreement, dated as of the Closing Date, among the Issuer, the American Servicer
and the Indenture Trustee, and if from time to time amended as permitted therein
and herein, as so amended.
"Applicable Procedures" shall have the meaning set forth in
Section 2.05(c) of this Indenture.
"Arby's" shall mean Arby's, Inc., a Delaware corporation.
"Arby's IP" shall mean all of Arby's trademarks and service
marks, whether registered or unregistered and whether currently used or
hereafter developed, trademark applications and trademark registrations, and all
of Arby's other intellectual property rights, in each case currently or
hereafter employed by Arby's in connection with the Arby's(R) branded business,
including all of Arby's rights to the current and hereafter developed
proprietary and/or confidential information, inventions, discoveries, patents,
trade names, logos, trade dress, art work, copyrights, moral rights, jingles,
software, shop rights, licenses, developments, research data, designs,
technology, test procedures, processes, route lists, computer programs, computer
discs, computer tapes, literature, know-how, systems of operation, procedures,
trade secrets, techniques, standards, specifications and domain names that are
necessary to (i) offer and sell Arby's(R) branded franchises in the United
States and Canada, (ii) serve as "Franchisor" under the Franchise Agreements and
(iii) otherwise administer the Arby's(R) branded franchise network in the United
States and Canada. Arby's IP does not include any trademarks or intellectual
property rights, currently or hereafter employed by Arby's in connection with
non-Arby's(R) branded products whether or not sold in Arby's(R) branded
restaurants.
"Authenticating Agent" shall mean with respect to any Notes,
the Indenture Trustee, or any other Person authorized by the Indenture Trustee
to authenticate any Notes.
"Authorized Insurer Representative" means a Managing Director,
Director, First Vice President, Vice President, General Counsel or Assistant
General Counsel of the Insurer or any other officer, employee or other agent of
the Insurer who is authorized to give or receive instructions or notices or
otherwise to act hereunder on behalf of the Insurer.
"Authorized Officer" shall mean, (i) in the case of the
Issuer, shall mean an "authorized officer" of the Issuer Trustee or an officer
of the Trust as defined in the Trust Agreement, (ii) in the case of a Servicer,
shall mean any Vice President or more senior officer or controller thereof,
(iii) in the case of the Indenture Trustee, shall mean a Responsible Officer of
such Indenture Trustee and (iv) with respect to any other Person (other than the
Insurer) any director, officer, managing director or any other Person appointed
as attorney-in-fact who is authorized to act for such Person in matters relating
to, and binding upon, such Person. Each party may receive and accept a
certification of the authority of any other party as conclusive evidence of the
authority of any person to act, and such certification may be considered to be
in full force and effect until receipt by such other party of written notice to
the contrary.
"Available Funds" shall mean, with respect to a Payment Date,
(i) any and all amounts held in the Collection Account (other than Excluded
Fees) on the related Accounting Date representing Franchisee Payments which were
received in the related Collection Period; (ii) the Debt Service Release Amount
and any Cash Trap Excess released from the Debt Service Reserve Account; (iii)
Capital Contributions; (iv) the Seasonality Release Amount; and (v) Investment
Income on the Collection Account and Seasonality Coverage Account.
"Bankruptcy Code" shall mean Title 11 of the United States
Code, as amended.
"Bloomberg Financial Markets Commodities News" shall mean the
financial news service provided by Bloomberg and its affiliates.
"BOA Lockbox Agreement" shall mean the Multi-Party Agreement
Relating to Lockbox Services dated as of November 21, 2000 among Bank of
America, the Issuer, Arby's, the Trustee and the Insurer, and if from time to
time amended, as so amended.
"Breach" shall have the meaning set forth in Section 5.01(l)
of this Indenture.
"Business Day" shall mean a day other than a Saturday, Sunday
or a day on which banking institutions located in the City of New York, New
York, in Wilmington, Delaware or in the city, state or province where the
principal offices of each of the Indenture Trustee and the Servicers are
located, are authorized or obligated by law, regulation or executive order to be
closed.
"Canadian Advertising Fees" shall mean an advertising and
marketing fee payable by the Franchisee to the Franchisor pursuant to a Canadian
Franchise Agreement for Canadian national advertising media (and related
expenses) not to exceed three percent (3%) of the Franchisee's monthly Gross
Sales or such other percentage of which the Indenture Trustee and the Insurer
shall have been given notice by the Canadian Servicer certifying that such
greater percentage has been established for new Canadian Franchise Agreements
(and Canadian Servicer shall, upon the request of either the Indenture Trustee
or the Insurer, deliver such substantiation thereof as may be reasonably
requested by the Insurer or the Indenture Trustee). For avoidance of doubt, the
Canadian Advertising Fees received by the Issuer will not be part of the Trust
Estate.
"Canadian Servicer" shall mean Arby's of Canada, Inc., as
servicer under the Canadian Servicing Agreement, until a successor Person shall
have become the Canadian Servicer pursuant to the provisions of the Canadian
Servicing Agreement, and thereafter "Canadian Servicer" shall mean such
successor Person.
"Canadian Servicing Agreement" shall mean the Servicing
Agreement dated as of the Closing Date, among the Issuer, the Canadian Servicer
and the Indenture Trustee, and if from time to time amended as permitted therein
and herein, as so amended.
"Capital Contributions" shall mean capital contributions to
the Issuer by XxxXx.
"Cash" shall mean such coin or currency of the United States
of America as at the time shall be legal tender for payment of all public and
private debts.
"Cash Trap Event" shall for purposes hereof be deemed to have
occurred if, on any Accounting Date, the Debt Service Coverage Ratio calculated
as of the last day of the preceding Collection Period is less than the Minimum
Debt Service Coverage Ratio, but greater than 1.20x; provided that such Cash
Trap Event shall be deemed to continue until such time as the Minimum Debt
Service Coverage Ratio is met for three consecutive Collection Periods
calculated as of each related Accounting Date.
"Cash Trap Excess" shall mean the amount by which the Debt
Service Reserve Account exceeds the Minimum Debt Service Reserve Amount.
"Cash Trap Reserve Amount" shall mean, for purposes of
calculation on any Accounting Date (based on the preceding Collection Period),
the sum of (i) the Minimum Funding Amount and (ii) the Residual Trap Amount.
"Certificate" shall mean a certificate representing a
beneficial interest in the Issuer.
"Certificates of Authentication" shall have the meaning
specified in Section 2.01 of this Indenture.
"Certificateholder" shall mean a holder of the Certificate.
"Clearance System" shall mean each of DTC, Euroclear and
Clearstream.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearstream" shall mean Clearstream Banking, societe anonyme,
a professional depositary incorporated under the laws of Luxembourg, and any
successors thereto.
"Closing Date" shall mean November 21, 2000.
"Code" shall mean the Internal Revenue Code of 1986, as it may
be amended from time to time.
"Collateral" shall have the meaning set forth in the Granting
Clauses hereof.
"Collections" shall mean, with respect to any Collection
Period, the sum of (i) all Franchisee Payments received in the Collection
Account during such Collection Period and (ii) interest income earned during
such Collection Period on the Collection Account.
"Collection Account" shall mean the trust account (account no.
001629) established pursuant to Section 10.02 of this Indenture.
"Collection Period" shall mean, with respect to each Payment
Date, the period from and including the 1st day of the calendar month preceding
the calendar month in which such Payment Date occurs through and including the
last day of the calendar month preceding the calendar month in which such
Payment Date occurs.
"Common Depositary" shall mean DTC and its respective
successors.
"Competitor" shall mean any Person that is a direct or
indirect franchisor, franchisee, owner or operator of a large regional or
national quick service restaurant concept (including a franchisee of Arby's(R)
branded restaurants); provided, however, that a person shall not be a
"Competitor" solely by virtue of its direct and indirect ownership of less than
7% of the equity securities in a "Competitor"; provided, further, that a
franchisee shall only be a "Competitor" if it directly or indirectly, owns in
the aggregate 20 or more individual restaurant locations of a particular
concept.
"Contribution Agreement" shall mean any of the Initial
Contribution Agreement, the Intermediate Contribution Agreement and the Final
Contribution Agreement.
"Controlling Party" means, as of any date of determination:
(i) if no Insurer Default has occurred and is continuing as of such date of
determination, the Insurer; (ii) if an Insurer Default has occurred and is
continuing as of such date of determination, the Indenture Trustee; or (iii) (A)
after the payment in full of the Notes, any Premium or Reimbursements owing to
the Insurer and all other amounts owing to the Insurer under the Insurance
Agreement and (B) the expiration of the Term of the Policy with respect to and
as defined in the Policy, the Indenture Trustee; provided, however, that, to the
extent the Indenture Trustee is exercising rights as the Controlling Party under
clause (ii) or clause (iii) of this definition, it shall do so only upon the
written direction of the Holders of a Majority in Aggregate Outstanding
Principal Amount.
"Controlling Party Order" and "Controlling Party Request"
mean, respectively, a written order or request signed on behalf of the
Controlling Party (if and for so long as it is the Insurer, by any Authorized
Insurer Representative) and delivered to the Indenture Trustee and the Issuer.
"Corporate Trust Office" shall mean the principal corporate
trust office of the Indenture Trustee, which at the date of execution hereof is
located at 0 Xxxxx XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Indenture Trust Administration or at such other address as the Indenture Trustee
may designate from time to time by notice to the Noteholders, the Insurer and
the Issuer or the principal corporate trust office of any successor Indenture
Trustee.
"Cut-Off Date" shall mean October 31, 2000.
"Debt Service" shall mean, with respect to any Payment Date,
the sum of Interest Distribution for such Payment Date (without regard to clause
(b) of the definition of Interest Distribution) plus the Targeted Principal
Payments related to such Payment Date.
"Debt Service Coverage Ratio" shall mean, for any Accounting
Date, the ratio calculated (without rounding) by dividing (a) an amount equal to
the aggregate Net Cash Flow for the immediately preceding four Collection
Periods by (b) an amount equal to the Debt Service for the Payment Date to which
such Accounting Date relates together with the Debt Service for the three
preceding Payment Dates.
"Debt Service Release Amount" shall mean (a) funds in the Debt
Service Reserve Account in excess of the Maximum Debt Service Reserve Amount and
(b) investment income earned on the Debt Service Reserve Account in the event
that Minimum Debt Service Amount is met, and, in each case, shall be deemed to
be Available Funds for application in accordance with the Priority of Payments.
"Debt Service Reserve Account" shall mean the trust account
(account no. 001632) established pursuant to Section 10.07 of this Indenture.
"Debt Service Reserve Amount" shall mean funds held in the
Debt Service Reserve Account.
"Default" shall mean any event, circumstance or condition
that, with notice or the lapse of time or both, will become an Event of Default.
"Defective Franchise Agreement" shall mean a Franchise
Agreement that breaches in any material respect the representations or
warranties contained in Section 4.1(h) of any Contribution Agreement.
"Definitive Notes" shall mean, with respect to the Notes, any
securities in fully registered form substantially in the form set forth in
Exhibit C hereto which may be issued in exchange for Permanent Regulation S
Global Notes pursuant to Section 2.02(a)(iv) of this Indenture.
"Delinquent Franchisee" shall mean a Franchisee that is
delinquent on its Franchisee Payments as of the end of the related Collection
Period in which they were due.
"Distribution Compliance Period" shall mean a period that
begins on the later of (a) the date on which the Notes are first offered to
Persons other than the Initial Purchasers in reliance upon Regulation S under
the Securities Act and (b) the Closing Date, and continues until the end of a
40-day period from the date on which such period commenced.
"DTC" shall mean The Depository Trust Company or any of its
successors.
"DTC Reference Directory" shall mean a directory distributed
by DTC periodically to all DTC participants that includes (i) a list of all
issuers who have advised DTC that they are issuing securities to Persons who are
"qualified purchasers" within the meaning of Section 3(c)(7) of the Investment
Company Act and (ii) CUSIP numbers for all such securities.
"Eligible Institution" shall mean a depository institution
organized under the laws of the United States of America or any one of the
States thereof, the deposits of which depository institution are insured, to the
full extent permitted by applicable law, by the FDIC through the Bank Insurance
Fund, which is subject to supervision and examination by federal or state
authorities and (a) whose long-term unsecured debt obligations are rated "AAA"
by Standard & Poor's or whose short-term unsecured debt obligations are rated
A-1+ by Standard & Poor's at the time of any deposit therein and (b) whose
long-term unsecured debt obligations are rated "Aa3" by Moody's or whose
short-term unsecured debt obligations are rated "P-1" by Moody's at the time of
any deposit therein.
"Eligible Investments" shall mean any of the following:
(i) Government Obligations; or
(ii) commercial paper having an original maturity of less than 270
days and a rating of "A-1" or higher by Standard & Poor's or "P-1" or
higher by Moody's at the time of such investment; or
(iii) certificates of deposit of, banker's acceptances issued by or
federal funds sold by any depository institution or trust company
(including the Indenture Trustee or any agent of the Indenture Trustee
acting in its commercial capacity so long as it is an Eligible
Institution) incorporated under the laws of the United States of
America or any State thereof and subject to supervision and examination
by federal and/or state authorities, so long as at the time of such
investment or contractual commitment providing for such investment such
depository institution or trust company has a long-term unsecured debt
rating in the highest rating category of Standard & Poor's and Moody's,
and provided that each such investment has an original maturity of less
than 365 days, and any other demand or time deposit or certificate of
deposit, which is fully insured by the FDIC through the Bank Insurance
Fund and rated "A-1" by Standard & Poor's; or
(iv) repurchase obligations with respect to (a) any security
described in clause (i) collateralized at not less than 102% of the
principal amount of such repurchase obligations or (b) any other
security issued or guaranteed as to timely payment by an agency or
instrumentality of the United States of America, collateralized at not
less than 102% of the principal amount of such repurchase obligations
in either case entered into with a depository institution or trust
company (including the Indenture Trustee), acting as principal, whose
obligations having the same maturity as that of the repurchase agreement
would be Eligible Investments under clause (iii) above (provided that
the counterparty is rated at least "A-1" by Standard & Poor's and "P-1"
by Moody's); or
(v) guaranteed investment contracts issued by any insurance company
or other corporation having a claims paying ability rating, financial
strength rating, counterparty risk rating, long-term unsecured debt
rating or guaranteed by an entity with such rating in the highest
rating category of Standard & Poor's and Moody's, at the time of such
investment; or
(vi) money market funds having ratings in the highest available
rating category of Standard & Poor's and Moody's; or
(vii) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (i) of the
definition of "Government Obligations" or clause (ii) or (iii) of this
definition of "Eligible Investments;" or
(viii) investments in securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any State of
the United States of America or by any political subdivision or taxing
authority thereof, and rated at least "AAA" by Standard & Poor's or
"Aaa" by Moody's; or
(ix) investments approved in writing by the Controlling Party and
that satisfy the Insurer Condition.
"ERISA" shall mean the United States Employee Retirement
Income Security Act of 1974, as amended.
"ERISA Plans" shall mean "employee benefit plans" (as defined
in Section 3(3) of ERISA) that are subject to Title I of ERISA.
"Euroclear" shall mean Xxxxxx Guaranty Trust Company of New
York, Brussels office, in its capacity as operator of the Euroclear System, and
any successors thereto.
"Event of Default" shall have the meaning set forth in Section
5.01 of this Indenture.
"Exchange Act" shall have the meaning set forth in Section
3.14(x) of this Indenture.
"Excluded Fees" shall mean (i) Non-Branded Payments which are,
in the aggregate, equal to an amount that is less than 3% of the total
cumulative gross Franchisee Payments as of any date of determination within the
12-month period after the Cut-Off Date, and in any 12-month period thereafter,
(ii) Advertising Fees, (iii) Canadian Advertising Fees and (iv) amounts payable
in respect of the Canadian Franchise Agreements relating to the goods and
services tax, the provincial tax and the harmonized sales tax.
"Expected Priority Payments" shall mean an amount, calculated
as of an Accounting Date for any related Payment Date, equal to the sum of (i)
Ordinary SPV Operating Expenses, (ii) the Premium, (iii) Interest Distribution
(without taking into account clause (b) of the definition thereof) and (iv)
Targeted Principal Payments, in each case for the related Collection Period.
"Final Contribution Agreement" shall mean the Contribution
Agreement between XxxXx and the Issuer dated as of the Closing Date, as the same
may be amended and supplemented from time to time.
"Financing Statements" shall mean financing statements
relating to the Collateral naming the Issuer as debtor and the Indenture
Trustee, on behalf of the Secured Parties, as secured party, and all financing
statements relating to the Collateral naming a Transferor as debtor and the
applicable Transferee, as secured party.
"XxxXx" shall mean Arby's Finance, LLC, a Delaware limited
liability company.
"Foreign Investor" shall mean any Noteholder or Note Owner who
is not (i) an individual who is a citizen or resident of the United States, (ii)
a corporation or partnership created or organized in or under the laws of the
United States or any political subdivision thereof, (iii) a trust the
administration of which is exercisable by a court in the United States and the
authority to control all substantial decisions of which is exercisable by one or
more United States Persons, or (iv) a Person otherwise subject to United States
federal income taxation on its worldwide income.
"Franchise Agreement" shall mean a franchise agreement with
the Franchisor pursuant to which a Franchisee operates an Arby's(R) branded
restaurant at a location in the United States or Canada.
"Franchise Assets" shall mean the Franchise Documents and the
right to receive Franchisee Payments after the Cut-Off Date.
"Franchise Documents" shall mean the Franchise Agreements, MDA
Agreements and LOA Agreements.
"Franchise Fees" shall mean franchise fees payable under the
Franchise Documents including without limitation, the License Fees, MDA Fees,
LOA Fees and Transfer/Renewal Fees.
"Franchise Royalties" shall mean royalty payments payable by a
Franchisee to the Franchisor pursuant to a Franchise Agreement based upon the
Royalty Rate multiplied by Gross Sales.
"Franchisee" shall mean a Person identified as "Franchisee"
pursuant to a Franchise Document.
"Franchisee Payments" shall mean the payments payable under
the Franchise Documents, including without limitation, Franchise Fees, Franchise
Royalties and Non-Branded Payments, and shall include the right to receive all
of the foregoing; provided, however, that Franchisee Payments shall not include
payments related to Excluded Fees or any payments with respect to non-Arby's(R)
branded products sold by Arby's or its Affiliates outside of the Restaurants.
"Franchisor" shall mean, prior to the Closing Date, Arby's,
and subsequent to the Closing Date, the Issuer.
"Global Note" shall mean a Rule 144A Global Note or Regulation
S Global Note.
"Government Obligations" shall mean (i) non-callable direct
obligations of, or non-callable obligations fully guaranteed by, the United
States of America or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit of the
United States of America, or (ii) an investment in a no-load money market fund
rated AAA-G or AAA-M by Standard & Poor's and Aaa by Moody's, the assets of
which are invested solely in obligations described in clause (i) of this
definition .
"Governmental Authority" shall mean any governmental body,
subdivision, board, official, authority, agency, court or arbitrator, domestic
or foreign.
"Grant" shall mean to grant, bargain, sell, warrant, alienate,
remise, demise, release, convey, assign, transfer, mortgage, pledge, create and
grant a security interest in and right of set-off against, deposit, set over and
confirm. A Grant of the Collateral or of any other instruments shall include all
rights, powers and options (but none of the obligations) of the granting party
thereunder, including, without limitation, the immediate continuing right to
claim for, collect, receive and receipt for Franchisee Payments in respect of
the Collateral and all other monies payable thereunder, to give and receive
notices and other communications, to make waivers or other agreements, to
exercise all rights and options, to bring Proceedings in the name of the
granting party or otherwise and generally to do and receive anything that the
granting party is or may be entitled to do or receive thereunder or with respect
thereto.
"Gross Sales" shall mean the total amount received from the
sale of all products and performance of all services on or from a Restaurant but
excluding sales tax or any similar tax.
"Holdings" shall mean Arby's Holdings, LLC, a Delaware limited
liability company.
"Incremental Additional Premium" shall mean, for each Accrual
Period until the Incremental Additional Premium Payment Date, an amount equal to
the Aggregate Outstanding Principal Amount multiplied by a rate of 6 basis
points per annum.
"Incremental Additional Premium Payment Date" shall mean
the date upon which the payment in full of the Notes is made.
"Indebtedness" shall mean, with respect to any Person, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person upon which interest
charges are customarily paid, (iv) all obligations of such Person under
conditional sale or other title retention agreements relating to property
purchased by such Person, (v) all obligations of such Person issued or assumed
as the deferred purchase price of property or services, (vi) all obligations as
lessee under any lease which shall have been or should be, in accordance with
generally accepted accounting principles, treated as a capital lease, and (vii)
all obligations under direct or indirect guarantees in respect of, and all
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of any other Person of the kinds referred to in clauses (i) through
(vi) above; provided, however, that "Indebtedness" shall in no case be construed
to include any obligations to any party arising under this Agreement or any
Transaction Document or in respect of the Notes.
"Indemnification Account" shall mean the trust account
(account no. 001636) established pursuant to Section 10.09 of this Indenture.
"Indemnification Amount" shall mean an amount payable by XxxXx
to the Issuer for each Defective Franchise Agreement equal to the product of (i)
the quotient obtained by dividing (A) the aggregate Gross Sales (other than
Gross Sales associated with Non-Branded Payments that constitute Excluded Fees)
for the Restaurant associated with such Defective Franchise Agreement for the
12-month period immediately preceding the Cut-Off Date by (B) the aggregate
Gross Sales (other than Gross Sales associated with Non-Branded Payments that
constitute Excluded Fees) for all Restaurants for the 12-month period
immediately preceding the Cut-Off Date, (ii) 66.67% (provided, however, if a
Franchisee has more than 50% of its Franchise Agreements deemed to be defective,
then with respect to such Franchisee, the Indemnification Amount shall be
calculated at 100% and not 66.67%) and (iii) the Initial Principal Amount.
"Indemnification Mandatory Redemption Event" shall mean the
Accounting Date on which the aggregate Indemnification Amount on deposit in the
Indemnification Account equals or exceeds $500,000.
"Indemnitees" shall have the meaning set forth in Section
6.07(c) of this Indenture.
"Indenture" shall mean this instrument as originally executed
and, if from time to time supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
as so supplemented or amended.
"Indenture Trustee" shall have the meaning ascribed thereto in
the opening paragraph of this Indenture, or its successor appointed in
accordance with Section 6.08 of this Indenture.
"Indenture Trustee Fees" shall mean (x) all compensation and
indemnification payable to the Indenture Trustee under the terms of this
Indenture and (y) all expenses reasonably required to be incurred by or on
behalf of the Indenture Trustee under the terms of this Indenture, including,
without limitation, all fees, expenses and other amounts payable to the
Indenture Trustee under Section 6.07 of this Indenture.
"Independent Accountant" shall mean the firm of independent
accountants appointed pursuant to each Servicing Agreement or any successor
independent accountant.
"Independent Accountant Fees" shall mean all fees payable to
the Independent Accountants by the Issuer pursuant to or in connection with the
fee letter dated November 20, 2000 between the Issuer and the Independent
Accountants and any amendments or any successor letter thereto.
"Industry Consultant" shall mean the consultant engaged
pursuant to the Industry Consultant Letter.
"Industry Consultant Fees" shall mean all fees and indemnities
payable by the Issuer to the Industry Consultant pursuant to the fee letter
related to the Industry Consultant Letter.
"Industry Consultant Letter" shall mean the engagement letter
dated October 24, 2000 pursuant to which the Insurer engaged the Industry
Consultant to provide services as specified therein, and if from time to time
amended, as so amended.
"Initial Principal Amount" shall mean, with respect to any of
the Notes, the initial principal amount of such Notes on the Closing Date.
"Initial Purchasers" shall mean Xxxxxx Xxxxxxx & Co.
Incorporated and ING Baring (U.S.) Capital, LLC.
"Insolvency Law" shall mean any applicable federal, state or
provincial law relating to liquidation, insolvency, bankruptcy, rehabilitation,
composition, reorganization, conservation or other similar law now or hereafter
in effect.
"Insurance Agreement" shall mean the Insurance Agreement dated
as of the Closing Date among the Issuer, the Indenture Trustee, the Insurer, and
the American Servicer, as amended or supplemented in accordance with the
provisions thereof.
"Insured Payments" shall have the meaning assigned thereto in
the Policy.
"Insurer" shall have the meaning ascribed thereto in the
opening paragraph of this Indenture.
"Insurer Condition" shall mean, with respect to any action
hereunder, the reasonable satisfaction of the Insurer as determined in good
faith that such action, if taken, would not adversely affect the rating of this
transaction without regard to the Policy or the Insurer's capital charge
attributable to the risk associated with this transaction, by either Rating
Agency.
"Insurer Default" shall have the meaning set forth in Section
5.02 of this Indenture.
"Insurer Indemnities" shall mean indemnity payments payable to
the Insurer and the Principal Reinsurer pursuant to the Insurance Agreement.
"Intermediate Contribution Agreement" shall mean the
Contribution Agreement between Holdings and XxxXx dated as of the Closing Date,
as the same may be amended and supplemented from time to time.
"Interest Distribution" shall mean with respect to the Notes
on any Payment Date, the sum of (a) the amount of interest accrued during the
related Accrual Period at the Note Rate on the Aggregate Outstanding Principal
Amount on the Business Day immediately prior to such Payment Date plus (b) any
previously accrued and unpaid interest at the Note Rate for prior Payment Dates
(including any Additional Interest).
"Investment Company Act" shall mean the United States
Investment Company Act of 1940, as amended and in effect from time to time.
"Investment Income" shall mean the difference (but not below
zero) of (i) the sum of all investment interest or other earnings on Accounts
that are part of the Trust Estate, minus (ii) any investment losses incurred in
respect of Accounts that are part of the Trust Estate.
"IP Contribution Agreement" means the Contribution Agreement
between Holdings and the IP Holder, as the same may be amended and supplemented
from time to time.
"IP Holder" shall mean Arby's IP Holder Trust, a Delaware
statutory business trust formed pursuant to the IP Holder Trust Agreement.
"IP Holder Trust Agreement" shall mean the Amended and
Restated Trust Agreement dated as of November 21, 2000 between Wilmington Trust
Company, a Delaware banking corporation acting not in its individual capacity
but solely as trustee with respect to the IP Holder, or such successor person as
shall become trustee pursuant to the IP Holder Trust Agreement, and Holdings.
"IP Servicer" shall mean Arby's, as servicer under the IP
Servicing Agreement, until a successor Person shall have become the IP Servicer
pursuant to the provisions of the IP Servicing Agreement and the "IP Servicer"
shall mean such successor Person.
"IP Servicing Agreement" shall mean the Servicing Agreement,
dated as of the Closing Date, between the IP Holder and the IP Servicer, and if
from time to time as amended as permitted therein and herein, as so amended.
"Issuer" shall have the meaning set forth in the opening
paragraph of this Indenture.
"Issuer Order" and "Issuer Request" shall mean a written order
or request dated and signed in the name of the Issuer by two Authorized Officers
of the Issuer.
"Issuer's Office" shall mean the principal office of the
Issuer to be maintained at 0000 Xxxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
00000-0000 pursuant to Section 3.02 of this Indenture.
"Issuer Trustee" shall mean Wilmington Trust Company, a
Delaware banking corporation, acting not in its individual capacity but solely
as trustee with respect to the Issuer, or such successor Person as shall become
trustee with respect to the Issuer pursuant to the applicable provisions of the
Trust Agreement.
"Legal Final Payment Date" shall mean December 20, 2020.
"License Agreement" shall mean the License and Security
Agreement (U.S. and Canada) dated the date hereof between the Issuer and the IP
Holder, and if from time to time as amended as permitted therein and herein, as
so amended.
"License Fees" shall mean fees payable by a Franchisee upon
its signing a Franchise Agreement subject to reduction by application of any
previous deposits (including any allocable LOA Fees and MOA Fees) made by the
Franchisee with Franchisor.
"Lien" or collectively, "Liens," shall mean all liens,
pledges, charges, encumbrances, security interests or other similar rights;
provided that the term "Lien" or "Liens" shall not include (A) a license or
right to use the Arby's IP by (x) Franchisees of Arby's in accordance with the
terms of their respective Franchise Agreements and (y) AFA Service Corporation,
AFC Advertising Association and ARCOP, Inc., in each case, in the ordinary
course of business, (B) a license or right of other third parties to use the
Arby's IP in the ordinary course consistent with the License Agreement, (C)
liens that remain on record at the applicable Governmental Authority but have
been paid and discharged prior to the Closing Date, provided that written
evidence of such payment and discharge shall have been received, (D) liens for
the benefit of the trustee pursuant to the IP Holder Trustee Agreement and the
Issuer Trustee pursuant to the Trust Agreement or (E) liens for the benefit of
the American Lock-Box Bank and the Canadian Lock-Box Bank (as each such term is
defined in the Servicing Agreement) pursuant to the applicable Account Control
Agreement (as defined in the Servicing Agreement).
"LLC Agreement" shall mean either of the Amended and Restated
Limited Liability Company Agreement of Holdings dated as of November 21, 2000
and the Amended and Restated Limited Liability Company Agreement of XxxXx dated
as of November 21, 2000.
"LOA Agreement" shall mean a license option agreement between
the Franchisor and a Franchisee that grants a Franchisee the option, exercisable
for a one-year period, to build a Restaurant on one specified site.
"LOA Fee" shall mean fees payable by a Franchisee pursuant to
an LOA Agreement.
"Lockbox Agreement" shall mean any of the BOA Lockbox
Agreement and the RBC Lockbox Agreement.
"Majority" shall mean with respect to the Notes, the Holders
of more than 50% of the Aggregate Outstanding Principal Amount of the Notes.
"Make Whole Premium" shall mean an amount equal to the excess,
if any, of (i) the discounted present value as of the Optional Redemption Date
of each of the Targeted Principal Payments on the Aggregate Outstanding
Principal Amount being redeemed and the Interest Distributions on the Aggregate
Outstanding Principal Amount being redeemed scheduled to be paid after the
Optional Redemption Date, determined at a discount rate equal to 0.25 percent
plus the yield on a U.S. treasury xxxx or note of a constant maturity which is
equal to the remaining Weighted Average Life of the Notes as of the Optional
Redemption Date, such discount rate to be converted to a monthly equivalent
rate, over (ii) the Aggregate Outstanding Principal Amount being redeemed. Such
reference to U.S. Treasury yield will be determined, if necessary, by (i)
converting U.S. Treasury xxxx quotations to bond-equivalent yields in accordance
with accepted financial practice and (ii) interpolating linearly between yields
reported for various maturities if no maturity corresponds to the applicable
remaining Weighted Average Life of the Notes.
"Mandatory Redemption Date" shall mean any Payment Date
following the Accounting Date on which an event leading to a mandatory
redemption pursuant to Section 9.05 hereof occurs.
"Mandatory Redemption Price" shall mean an amount equal to the
sum of (i) the par value of the Aggregate Outstanding Principal Amount being
redeemed and (ii) accrued and unpaid interest at the Note Rate on the Aggregate
Outstanding Principal Amount being redeemed through the Mandatory Redemption
Date.
"Material Adverse Effect" shall mean, a material adverse
effect on any of the following: (A) with respect to the Issuer (x) its
condition, financial or otherwise, (y) its earnings, or business affairs or (z)
its ability to own its properties or to conduct its business or to enter into or
perform its respective obligations, as applicable under the Transaction
Documents, (B) with respect to any material Arby's IP individually or with
respect to the Arby's IP taken as a whole, the enforceability of the terms
thereof, the likelihood of the payment of the amounts required as of the date
hereof with respect thereto in accordance with the terms thereof, the value
thereof, the transferability or the transfer thereof to the Issuer or the
ownership thereof and the security interest in the rights thereto Granted under
the License Agreement by the IP Holder or Granted under the terms of this
Indenture by the Issuer, (C) with respect to the existing and reasonably
anticipated future Franchise Assets taken as a whole, the enforceability of the
terms thereof, the likelihood of the payment of the amounts required as of the
date hereof with respect thereto in accordance with the terms thereof, the value
thereof, the transferability or the transfer thereof to the Issuer or the
ownership thereof or (D) with respect to the Notes, security therefor Granted in
this Indenture, the benefits intended to be provided the Noteholders thereby
and, upon payment therefor, the Noteholders' respective right, title and
interest in and to the Notes. For avoidance of doubt, the fact that the Debt
Service Coverage Ratio is then, or would remain, at 1.20x or greater shall not,
solely in and of itself, preclude or negate the determination of a Material
Adverse Effect in any instance.
"Maturity" shall mean, with respect to the Notes, the date on
which the unpaid principal of the Notes becomes due and payable as therein or
herein provided, whether at the Legal Final Payment Date or by declaration of
acceleration, call for redemption or otherwise.
"Maximum Debt Service Reserve Amount" shall mean, as of any
Payment Date, an amount equal to the lesser of (i) the first 12 months of
Expected Priority Payments and (ii) any remaining Expected Priority Payments.
"MDA Agreement" shall mean a market development agreement
between the Franchisor and a Franchisee pursuant to which a Franchisee commits
to build two or more Restaurants within a specified geographic territory within
a specified time frame.
"MDA Fee" shall mean fees payable by a Franchisee pursuant to
an MDA Agreement.
"Minimum Debt Service Reserve Amount" shall mean, as of any
Payment Date, an amount equal to the lesser of (i) the first nine months of
Expected Priority Payments and (ii) the remaining Expected Priority Payments.
"Minimum Debt Service Coverage Ratio" shall mean, as of any
Accounting Date, an amount equal to the greater of (i) 1.20x and (ii) the lesser
of (A) 75% of the highest Debt Service Coverage Ratio previously calculated on
any Accounting Date and (B) 1.70x.
"Minimum Funding Amount" shall mean either (i) if the Debt
Service Reserve Amount is less than the Minimum Debt Service Reserve Amount, the
difference between the Minimum Debt Service Reserve Amount and the Debt Service
Reserve Amount or (ii) if the Debt Service Reserve Amount is equal to or greater
than the Minimum Debt Service Reserve Amount, $0.
"Misdirected Payments" shall have the meaning set forth in
Section 10.02 hereof.
"Money" shall have the meaning set forth in Section 1-201(24)
of the UCC.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. and its
successors and assigns, if such successors and assigns shall continue to perform
the functions of a securities rating agency; if Xxxxx'x Investors Services, Inc.
or such successor and assign shall for any reason no longer perform the
functions of a securities rating agency, "Moody's" shall be deemed to refer to
any other nationally recognized rating agency designated by the Issuer with the
written consent of the Insurer (so long as no Insurer Default shall have
occurred and be continuing).
"Net Cash Flow" shall mean, with respect to any Collection
Period and related Accounting Date, an amount equal to the difference between
(i) the sum of (A) Collections and Investment Income on Collections, (B) Capital
Contributions that the Controlling Party has consented to include in Net Cash
Flow for a specified Collection Period for purposes of this definition, such
consent not to be unreasonably withheld, (C) the Seasonality Release Amount and
(D) so long as an amount no less than the Minimum Debt Service Reserve Amount is
on deposit in the Debt Service Reserve Account, Investment Income earned on the
Debt Service Reserve Account minus (ii) the sum of (A) SPV Operating Expenses,
(B) the Premium, (C) the Seasonality Deposit Amount and (D) Servicing Fees, in
each case paid or, in the case of Investment Income, earned during such
Collection Period.
"Non-Branded Payments" shall mean payments related to
non-Arby's(R) branded products sold under brands owned or licensed by Affiliates
of Arby's which are sold through Restaurants.
"Note Interest Amount" shall have the meaning set forth in
Section 3.13 of this Indenture.
"Note Owner" shall mean, with respect to any Global Note, each
Person that appears on the records of a Clearance System (other than each such
Clearance System to the extent that it is an accountholder with the other
Clearance System for the purpose of operating the "bridge" between them) as
entitled to a particular amount of Notes by reason of an interest in a Global
Note (for all purposes other than with respect to the payment of principal of
and interest on the Notes, the right to which shall be vested, as against the
Issuer and the Indenture Trustee, solely in the Person in whose name the Global
Note is registered in the Note Register); provided, however, that the Indenture
Trustee may conclusively rely upon the certificate of a Clearance System as to
the identity of such Persons holding an interest in a Global Note.
"Note Principal Amount" shall have the meaning set forth in
Section 3.13 of this Indenture.
"Note Rate" shall mean with respect to any Accrual Period, a
per annum rate equal to 7.44% which shall be calculated on the basis of a
360-day year consisting of twelve 30-day months.
"Note Register" shall have the meaning set forth in Section
2.05 of this Indenture.
"Note Registrar" shall have the meaning set forth in Section
2.05 of this Indenture.
"Noteholder" or "Holder" shall mean the registered owner of a
Note as evidenced by the Note Register.
"Notes" shall mean the Notes which are authorized by, and
authenticated and delivered under, this Indenture substantially in the forms
attached hereto.
"Notice of Claim" shall mean any notice delivered by the
Indenture Trustee to the Insurer or its agent pursuant to the Policy in the form
set forth in Exhibit A to the Policy.
"Offering Circular" shall mean the Offering Circular dated
November 17, 2000 relating to Arby's Franchise Trust 7.44% Fixed Rate Insured
Notes Due December 20, 2020.
"Officer" shall mean, with respect to any corporation other
than the Indenture Trustee, the President, any Vice President, the Secretary or
the Treasurer (collectively, an "Executive Officer") of such corporation; with
respect to any partnership, any general partner thereof; with respect to any
bank or trust company acting as trustee of an express trust or as custodian, any
Responsible Officer thereof; with respect to any limited liability company, any
manager, any managing member or Executive Officer thereof; and with respect to
the Issuer, the chief executive officer, the president, any executive vice
president, senior vice president or any vice president of the Issuer.
"Officers' Certificate" shall mean, unless otherwise
specified, a certificate signed by any Authorized Officer of the party
delivering such certificate, delivered to the Indenture Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel
to the Issuer, addressed to the Insurer and to the Indenture Trustee for the
benefit of the Noteholders, in form and substance reasonably satisfactory to the
Indenture Trustee and the Insurer.
"Optional Redemption Date" shall mean any Payment Date
specified for an optional redemption of Notes pursuant to Section 9.01 of this
Indenture.
"Optional Redemption Price" shall mean, as of the Optional
Redemption Date, the sum of (i) the Aggregate Outstanding Principal Amount being
redeemed, (ii) the accrued and unpaid interest at the Note Rate on the Aggregate
Outstanding Principal Amount being redeemed through the Optional Redemption Date
and (iii) the Make Whole Premium on the Aggregate Outstanding Principal Amount
being redeemed.
"Ordinary SPV Operating Expenses" shall mean SPV Operating
Expenses of the Issuer that are budgeted or incurred in the ordinary course of
business (and which term excludes any indemnification claims).
"Organizational Expenses" shall mean any expenses incurred by
the Issuer in connection with the maintenance of its existence in the State of
Delaware and in connection with its qualification to do business in any State.
"Outstanding" shall mean Notes theretofore authenticated and
delivered under this Indenture, except:
(i) Notes theretofore canceled or delivered for cancellation;
(ii) Notes or portions thereof, money for the payment or prepayment of the
principal and interest of which has theretofore been deposited with the
Indenture Trustee in trust for the Noteholders corresponding thereto;
provided that, if such Notes or portions thereof are to be prepaid,
notice of such prepayment has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; provided further that, until paid, such Notes or
portions thereof for which payment or prepayment money has been
deposited with the Indenture Trustee but not made to the corresponding
Noteholders shall continue to be deemed to be Outstanding for purposes
of Noteholder vote, consent or waiver;
(iii) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture including,
without limitation, Section 2.05 hereof, unless proof satisfactory to
the Indenture Trustee is presented that any such Notes are held by a
bona fide purchaser in whose hands such Notes are valid obligations of
the Issuer; and
(iv) Notes alleged to have been mutilated, destroyed, lost or stolen for
which replacement Notes have been issued as provided in Section 2.06;
provided, however, that (1) to the extent that any Notes have been paid with
proceeds of the Policy, such Notes shall continue to remain Outstanding for
purposes of this Indenture until the Insurer has been paid as subrogee hereunder
or reimbursed pursuant to the Insurance Agreement as evidenced by a written
notice from the Insurer delivered to the Indenture Trustee, and the Insurer
shall be deemed to be the Holder of such Notes to the extent of any payments
thereon made by the Insurer; and (2) Notes held by or to the order of the Issuer
will not be considered Outstanding for purposes of establishing a quorum of
Noteholders at any meeting of Noteholders.
"Participants" shall mean the direct participants of DTC,
which include securities brokers and dealers, banks, trust companies, clearing
corporations (including the Agent Member) and other organizations.
"Payment Date" shall mean the 20th day of the calendar month,
or, if any such 20th day is not a Business Day, then the next succeeding
Business Day, commencing on December 20, 2000.
"Permanent Regulation S Global Note" shall have the meaning
set forth in Section 2.02 of this Indenture.
"Permitted Indebtedness" shall mean (a) Indebtedness that (i)
is represented by an invoice, statement of account, check, work request,
purchase order or other similar document representing expenses relating to
activities of the Issuer in accordance with Article Three hereof, (ii) is fully
and explicitly subordinated to the Notes and (iii) does not constitute a claim
against the Issuer to the extent that excess proceeds of the Trust Estate are
insufficient to pay such debt and (b) the payables associated with SPV Operating
Expenses.
"Person" shall mean any legal person, including any
individual, corporation, limited liability company, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall mean any ERISA Plan or "plan" (as defined in
Section 4975 of the Code) that is subject to Section 4975 of the Code.
"Policy" shall mean the Note Guaranty Insurance Policy No.
AB0408BE issued by the Insurer in respect of the Notes on the Closing Date.
"Policy Account" shall have the meaning set forth in Section
2.15 of this Indenture.
"Pre-Cut-Off Date Franchisee Payments" shall mean all payments
under the Franchise Documents received on or prior to the Cut-Off Date.
"Preference Claim" shall have the meaning set forth in Section
2.12(e) of this Indenture.
"Premium" shall mean the premium payable to the Insurer by the
Issuer as specified in the Premium Letter including the Additional Premium
Amount.
"Premium Letter" shall mean that certain Premium Letter dated
the Closing Date between the Insurer and the Issuer, relating to the Policy, and
if from time to time as amended as permitted therein and herein, as so amended.
"Principal Distribution" shall mean with respect to the Notes
on any Payment Date, the lesser of (i) Available Funds after payment of amounts
required pursuant to clauses 10.03(i) through 10.03(iv) as set forth in the
Priority of Payments and (ii) the Targeted Principal Payment plus any unpaid
Targeted Principal Payments from prior Payment Dates.
"Principal Reinsurer" shall have the meaning assigned to such
term in the Insurance Agreement.
"Priority of Payments" shall mean the application of funds
provided for in Section 10.03 of this Indenture.
"Proceeding" shall mean a suit in equity, action at law or
other judicial or administrative proceeding.
"Qualified Institutional Buyer" shall have the meaning set
forth in Rule 144A.
"Qualified Purchaser" shall have the meaning set forth in
Section 2(a)(51)(A) of the Investment Company Act.
"Rating Agency" shall mean Standard & Poor's and Moody's.
"RBA Lockbox Agreement" shall mean the Blocked Accounts
Agreement dated as of November 21, 2000 among Royal Bank of Canada, Arby's of
Canada Inc. and the Trustee, and if amended from time to time, as so amended.
"Record Date" shall mean, with respect to a Payment Date, the
last day of the immediately preceding calendar month.
"Registered" shall mean a debt obligation that is in
registered form within the meaning of Section 881(c)(2)(B)(i) of the Code.
"Registered Notes" shall have the meaning set forth in Section
2.02(c) of this Indenture.
"Regulation S" shall mean Regulation S under the Securities
Act, as such regulation may be amended, supplemented, replaced or otherwise
modified from time to time.
"Regulation S Global Note" shall have the meaning set forth in
Section 2.02 of this Indenture.
"Reimbursement" shall mean the reimbursement (including any
interest thereon) payable by the Issuer, with respect to any payment made by the
Insurer under the Policy, pursuant to the terms of the Insurance Agreement.
"Residual Trap Amount" shall mean, for purposes of calculation
on any Accounting Date, either (i) upon the occurrence and continuation of a
Cash Trap Event, 25% of the Available Funds after payment of the sum of (A) the
Priority of Payments described in Sections 10.03(i) through Section 10.03(v)
hereof and (B) the Minimum Funding Amount on such Accounting Date or (ii) if a
Cash Trap Event is no longer continuing, $0.
"Responsible Officer" shall mean, when used with respect to
the Indenture Trustee, any officer within the corporate trust and agency group
of the Indenture Trustee (or any successor group of the Indenture Trustee),
including any managing director, vice president, assistant vice president,
assistant secretary or any other officer of the Indenture Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, who shall in any case be responsible for the administration of this
document or have familiarity with it, and, with respect to particular corporate
trust matters, any other officer to whom any corporate trust matter is referred
at the Corporate Trust Office because of his or her knowledge of and familiarity
with the particular subject.
"Restaurant" shall mean an Arby's(R) branded restaurant at a
location in the United States or Canada.
"Royalty Rate" shall mean a fixed percentage specified in each
Franchise Agreement utilized to calculate the Franchise Royalties payable by a
Franchisee to the Franchisor.
"Rule 144A" shall mean Rule 144A under the Securities Act, as
such rule may be amended, supplemented, replaced or otherwise modified from time
to time.
"Rule 144A Global Note" shall have the meaning set forth in
Section 2.02(b) of this Indenture.
"Seasonality Coverage Account" shall mean the trust account
(account no. 001633), established pursuant to Section 10.08 of this Indenture.
"Seasonality Coverage Balance" shall mean the funds on deposit
in the Seasonality Coverage Account.
"Seasonality Deposit Amount" shall mean an amount equal to the
greater of (i) the lesser of (A) $50,000 and (B) any amounts remaining after
application of Available Funds in accordance with Sections 10.03(i) through
10.03(viii), and (ii) the amount specified by the Issuer, subject to a maximum
amount of $500,000 on each Payment Date in each of December, January and
February.
"Seasonality Release Amount" shall mean (i) for each
Accounting Date in each of March, April and May of each year, such amount as may
be released at the direction of the Issuer to reduce the Seasonality Coverage
Balance, provided, however, the Seasonality Release Amount on the Accounting
Date for the month of each May shall be the amount necessary to reduce the
Seasonality Coverage Balance to $0.
"Secured Parties" shall mean (i) the Indenture Trustee on
behalf of the Noteholders and the Insurer, (ii) the Indenture Trustee in its
individual capacity and (iii) the Insurer, all as parties secured by the
Collateral, as their interest may appear in this Indenture, including the
Granting Clauses and Priority of Payments hereof.
"Securities Account" shall have the meaning set forth in
Section 8-501 of the UCC.
"Securities Act" shall mean the U.S. Securities Act of 1933,
as amended and in effect from time to time and the rules and regulations
promulgated thereunder.
"Securities Intermediary" shall have the meaning set forth in
Section 8-102(a)(14) of the UCC.
"Security Entitlement" shall have the meaning set forth in
Section 8-102(a)(17) of the UCC.
"Servicer Order" or "Manager Order" shall mean an order of an
Authorized Officer of the American Servicer, the Canadian Servicer or the IP
Servicer, as applicable.
"Servicer Termination Event" shall have the meaning set forth
in the American Servicing Agreement and the Canadian Servicing Agreement.
"Servicers" shall mean the American Servicer and the Canadian
Servicer.
"Servicing Agreements" shall mean the American Servicing
Agreement and the Canadian Servicing Agreement.
"Servicing Fee" shall mean the fees payable to the American
Servicer and the Canadian Servicer pursuant to the applicable Servicing
Agreement which for any Payment Date shall mean an amount equal to such
Servicer's expenses incurred on a GAAP basis in the related Collection Period,
provided that such fees shall be capped, (i) with respect to the 12-month period
after the Cut-Off Date, at $36,500,000 in the aggregate for both Servicers and
(ii) with respect to each 12-month period thereafter commencing on an
anniversary of the Cut-Off Date, at 42% of gross Franchisee Payments received
during such period in the aggregate for both Servicers (such cap to be
calculated as of any date during such 12-month period based on cumulative gross
Franchisee Payments received from the commencement of such 12-month period to
such date) provided, however, that if the Debt Service Coverage Ratio is 1.10x
or less, Servicing Fees shall not, without the consent of the Controlling Party,
exceed $25,000,000 per 12-month period thereafter (subject to an annual 3%
increase as of each anniversary of the Cut-Off Date) (the "$25,000,000 cap")
until the Debt Service Coverage Ratio has exceeded 1.10x for six consecutive
Collection Periods, at which time the cap on Servicing Fees shall once again be
calculated in accordance with clause (ii) above with the consent of the
Controlling Party (which consent shall not be unreasonably withheld), provided
that, if at any time during the period when the Debt Service Coverage Ratio is
1.10x or less, if the $25,000,000 cap is greater than if the cap on the
Servicing Fees is calculated in accordance with clause (ii) above, the cap on
Servicing Fees shall be calculated in accordance with clause (ii) above;
provided, further, in the event that a Servicer Termination Event shall have
occurred and a new Servicer succeeds to the existing Servicer, the successor
Servicer shall be entitled to receive a Servicing Fee based on a market rate so
long as such total Servicing Fee does not, without the consent of the
Controlling Party and the Certificateholder (such consent not to be unreasonably
withheld), exceed the cap specified in this definition.
"SPE Administrator" shall mean the administrator engaged by
the Issuer pursuant to the SPE Administrator Letter.
"SPE Administrator Fees" shall mean all fees and indemnities
payable by the Issuer to the SPE Administrator pursuant to the SPE Administrator
Letter.
"SPE Administrator Letter" shall mean the engagement letter
dated November 13,, 2000 pursuant to which the Issuer engaged the SPE
Administrator to provide certain services as specified therein, and if from time
to time amended as permitted therein and herein, as so amended.
"SPV Indemnities" shall mean the sum of (i) all
indemnification obligations of the Issuer pursuant to the Transaction Documents
and (ii) the indemnification obligations which the Issuer, and to the extent
arising out of the transactions effected pursuant to the Transaction Documents,
IP Holder, XxxXx and Holdings have to their respective officers, directors or
managers under their related organizational documents to the extent such
obligations in this subclause (ii) are not subject to or exceed insurance
coverage.
"SPV Operating Expenses" shall mean all Trustee Fees, Industry
Consultant Fees, Independent Accountant Fees, SPE Administrator Fees, Insurer
Indemnities, SPV Indemnities, Ordinary SPV Operating Expenses, Organizational
Expenses and fees, if any, relating to the replacement of the IP Servicer,
provided, however, such amounts (other than the Industry Consultant Fees upon
the occurrence of a Servicer Termination Event and other than indemnities) shall
not exceed $500,000 in the aggregate in any given 12-month period; provided,
further, that SPV Operating Expenses comprised of indemnities shall not exceed
in the first 12-month period following the Closing Date $1,000,000 in the
aggregate, and in each subsequent 12-month period such maximum amount shall
increase by an amount not exceeding $1,000,000 to the extent indemnities are not
paid during such prior 12-month period or decrease to the extent indemnities are
paid during such prior 12-month period, but the maximum amount shall in no event
exceed $5,000,000 in the aggregate during any such subsequent 12-month period or
be less than $1,000,000 in any such subsequent 12-month period. For avoidance of
doubt, any SPV Operating Expenses comprised of indemnities that exceed the
maximum amount as described in the second proviso in the foregoing sentence,
shall remain as accrued and unpaid SPV Operating Expenses payable in accordance
with the Priority of Payments.
"Standard & Poor's" shall mean Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. and its successors and
assigns, if such successors and assigns shall continue to perform the functions
of a securities rating agency; if such division or successors and assigns shall
for any reason no longer perform the functions of a securities rating agency,
"Standard & Poor's" shall be deemed to refer to any other nationally recognized
rating agency designated by the Issuer with the written consent of the Insurer
(so long as no Insurer Default shall have occurred and be continuing).
"Substituted Person" shall have the meaning set forth in
Section 11.01 of this Indenture.
"Targeted Principal Payment" shall mean, for any Payment Date,
the principal payment as specified on the targeted principal amortization
schedule attached as Exhibit L hereto.
"Temporary Regulation S Global Note" shall have the meaning
set forth in Section 2.02(a) of this Indenture.
"Term of the Policy" shall have the meaning set forth in the
Policy.
"Transaction Documents" shall mean the Contribution
Agreements, the Notes, the Trust Agreement, the Indenture, each Servicing
Agreement, the IP Contribution Agreement, the License Agreement, the Insurance
Agreement, the Lockbox Agreements and the organizational documents of each of
Holdings, XxxXx, IP Holder and the Issuer.
"Transfer/Renewal Fees" shall mean fees payable by Franchisees
in connection with the renewal or transfer of any existing Franchise Agreement.
"Transferee" shall mean the Person that receives a
contribution pursuant to a Contribution Agreement or the IP Contribution
Agreement.
"Transferor" shall mean a Person that makes a contribution
pursuant to a Contribution Agreement or the IP Contribution Agreement.
"Trust Account" shall mean each of the Collection Account, the
Debt Service Reserve Account, the Seasonality Coverage Account and the
Indemnification Account.
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of November 21, 2000, by and between the Issuer Trustee and
XxxXx, as it may be amended or supplemented from time to time as permitted
thereby.
"Trust Estate" shall mean the Collateral and the rights of the
Indenture Trustee under the Policy, and including, without limitation, all other
money, instruments and other property and rights subject or intended to be
subject to the Lien of this Indenture for the benefit of all or any of the
Secured Parties as of any particular time, including all proceeds thereof.
"Trust Termination Date" shall mean the date on which the
obligations of the Issuer hereunder are terminated pursuant to Section 4.01 of
this Indenture.
"Trustee Fees" shall mean fees and indemnities payable by the
Issuer or the IP Holder, as the case may be, pursuant to the fee letters with
the Issuer Trustee, Indenture Trustee and the trustee of the IP Holder.
"UCC" shall mean the Uniform Commercial Code as amended and in
effect from time to time in the State of New York.
"U.S. person" shall mean a "U.S. person" as defined in
Regulation S.
"Weighted Average Life" shall mean the weighted average life
of the Notes as determined in accordance with customary and standard industry
practices.
SECTION 1.02 Interpretation. The definitions of terms defined herein are equally
applicable both to the singular and plural forms of such terms, and references
to such terms in the masculine, feminine or neuter gender shall be deemed to
include all genders. The words "herein", "hereof", "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section, Subsection or other subdivision hereof.
ARTICLE TWO
THE NOTES
SECTION 2.01 Forms Generally. The Notes and the Authenticating Agent's
certificates of authentication thereon (the "Certificates of Authentication")
shall be in substantially the forms required by this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon,
as may be consistent herewith, determined by the Authorized Officer(s) of the
Issuer executing such Notes as evidenced by their execution of such Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note. The Notes shall be
typewritten, printed, lithographed or engraved or produced by any combination of
these methods (with or without steel engraved borders), all as determined by the
officer(s) executing such Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the Notes
set forth in the Exhibits hereto are part of the terms of this Indenture.
SECTION 2.02 Forms of Notes and Certificates of Authentication. (a) Regulation S
Global Notes. (i) The Notes sold in "offshore transactions" in reliance on (and
as defined in) Regulation S shall be represented initially by one or more global
notes (each, a "Temporary Regulation S Global Note") substantially in the forms
set forth in Exhibit A-1 (form of Temporary Regulation S Global Note) which the
Issuer shall issue to the Common Depositary on terms that the Common Depositary
shall hold the same for the account of the Note Owners. The Temporary Regulation
S Global Notes shall be exchanged for interests in one or more permanent global
notes (each, a "Permanent Regulation S Global Note" which, together with the
Temporary Regulation S Global Notes, are hereinafter referred to as the
"Regulation S Global Notes") substantially in the form set forth in Exhibit A-2
(form of Permanent Regulation S Global Note) pursuant to Section 2.02(a)(iii),
below. Regulation S Global Notes shall be issued in fully registered form
without interest coupons attached.
(ii) The Permanent Regulation S Global Notes shall be exchangeable in their
entirety for Definitive Notes only pursuant to Section 2.02(a)(iv) hereof and in
accordance with their terms and without charge (other than the costs of postage
and postal insurance) and, upon complete exchange thereof or payment in full of
the principal of and interest on the Permanent Regulation S Global Notes, such
Notes shall be surrendered for cancellation forthwith to the Indenture Trustee
at the Corporate Trust Office. Until such exchange and except as provided in the
Permanent Regulation S Global Notes, the Note Owner of a Permanent Regulation S
Global Note shall be entitled to the same rights and benefits under this
Indenture as if it were the Holder of Definitive Notes represented by such
Permanent Regulation S Global Notes.
(iii) At such time as the Distribution Compliance Period shall have terminated,
and subject to the receipt by the Indenture Trustee of a certificate
substantially in the form of Exhibit E (form of clearance system certificate)
hereto signed by the applicable Clearing Agency and a certificate substantially
in the form of Exhibit F hereto (form of certificate of non-U.S. ownership),
beneficial interests in the Temporary Regulation S Global Notes may be exchanged
outside of the United States for equal beneficial interests in the Permanent
Regulation S Global Notes, with such legends as may be applicable thereto. The
Permanent Regulation S Global Notes delivered in exchange for the Temporary
Regulation S Global Notes shall not be mailed or otherwise delivered to any
location in the United States in connection with such exchange. Upon any
exchange of any beneficial interest in the Temporary Regulation S Global Notes
for a beneficial interest in the Permanent Regulation S Global Notes, the
Temporary Regulation S Global Notes shall be endorsed by the Indenture Trustee
outside of the United States to reflect the reduction of the principal amount
evidenced thereby, whereupon the principal amount of the Temporary Regulation S
Global Notes shall be reduced for all purposes by the amount so exchanged and
endorsed.
(iv) Each Permanent Regulation S Global Note will be exchangeable in its
entirety for Definitive Notes in fully registered form without interest coupons
attached upon the occurrence of one or more of the following events: (A) either
Euroclear or Clearstream is closed for business for a continuous period of 14
days (other than by reason of holiday, statutory or otherwise), or (B) as a
result of any amendment to or change in, the laws or regulations of the State of
Delaware or of any authority therein or thereof having power to tax or in the
interpretation or administration of such laws or regulations which become
effective on or after the Closing Date, the Issuer or the Indenture Trustee is
or will be required to make any deduction or withholding from any payment in
respect of the Notes which would not be required if the Notes were in definitive
form. Upon the surrender of any such Permanent Regulation S Global Note to the
Indenture Trustee for such exchange, the Issuer will execute and deliver at or
from a location outside the United States, and the Authenticating Agent will
authenticate and deliver at or from a location outside the United States,
Definitive Notes in exchange for such Permanent Regulation S Global Note within
30 days of any such occurrence and shall record the names of the Holders of such
Notes in the Note Register in accordance with the provisions of Section 2.05
hereof. Except as provided in this Section, Note Owners will not be entitled to
receive physical delivery of Definitive Notes (however, nothing in this Section
2.02(a)(iv) shall be read to limit the rights of any Note Owner of a Regulation
S Global Note to transfer such interest in accordance with Sections 2.05(d)(i)
or (ii) hereof).
(b) Rule 144A Global Notes. The Notes offered and sold in the United States or
to U.S. persons shall initially be issued in the form of one or more global
notes (each, a "Rule 144A Global Note" and, together with the Regulation S
Global Notes, the "Global Notes") in fully registered form without interest
coupons, substantially in the form set forth in Exhibit B with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and such legends as may be applicable thereto, which
shall be deposited with the Indenture Trustee at its Corporate Trust Office, as
custodian for DTC and registered in the name of a nominee of DTC, duly executed
by the Issuer and authenticated by the Authenticating Agent as hereinafter
provided.
(i) The Issuer shall (A) request of DTC, and cooperate with DTC to ensure, that
the DTC security description and delivery order include a "3(c)(7) marker" and
confirm that the DTC user's manual contains an accurate description of the
restriction on the holding and transfer of the Rule 144A Global Notes due to the
Issuer's reliance on the exclusion to registration provided by Section 3(c)(7)
of the Investment Company Act, (B) request of DTC, and cooperate with DTC to
ensure, that DTC sends to its Participants in connection with the initial
offering of the Notes a notice substantially in the form attached hereto as
Exhibit K and (C) request of DTC, and cooperate with DTC to ensure, that the DTC
Reference Directory includes each class of Rule 144A Global Notes in the listing
of 3(c)(7) issues together with an attached description of the limitations as to
the distribution, purchase, sale and holding of the Rule 144A Global Notes.
(ii) The Issuer shall maintain on the systems of DTC and Bloomberg Financial
Markets Commodities News the "3(c)(7) marker" in place on or about the Closing
Date, except to the extent that the Issuer is advised by counsel that such
indicators may be changed or deleted without the loss of the Issuer's exemption
from registration under the Investment Company Act. Except to the extent that
the Issuer is advised by counsel that such indicator may be changed or deleted
without the loss of the Issuer's exemption from registration under the
Investment Company Act, the Issuer shall ensure that any Bloomberg screen
containing information about any Note includes the following (or similar)
language:
(A) "Note Box" on bottom of "Security Display" page describing the security
should state: "Iss'd Under 144A/3c7".
(B) "Security Display" page should have flashing red indicator "See Other
Available Information".
The indicator should link to the "Additional Security
Information" page, which should state that the securities "are being offered in
reliance on the exemption from registration under Rule 144A of the Securities
Act to persons who are (i) Qualified Institutional Buyers (as defined in Rule
144A under the Securities Act), (ii) qualified purchasers (as defined under
Section 3(c)(7) under the Investment Company Act of 1940) and (iii) not a
Competitor.
(c) Registered Notes. The Notes sold to investors that are (1) Qualified
Institutional Buyers pursuant to Rule 144A, (2) Qualified Purchasers and (3) not
Competitors, or issued upon the transfer of a beneficial interest in a Note in
the form of a Global Note to a U.S. person that is (1) a Qualified Institutional
Buyer pursuant to Rule 144A, (2) a Qualified Purchaser and (3) not a Competitor,
may be issued in definitive, fully registered form without interest coupons with
the applicable legend set forth in Exhibit D (form of Registered Note) and shall
be registered in the name of the beneficial owner or its nominee, duly executed
by the Issuer and authenticated by the Authenticating Agent as hereinafter
provided.
SECTION 2.03 Authorized Amount; Denominations. On the Closing Date, the Notes
that shall be authenticated and delivered under this Indenture shall be issued
in the Aggregate Outstanding Principal Amount of $290,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 2.05 or 2.06 of this
Indenture.
The Notes shall be issuable in minimum denominations of
$1,000,000, and integral multiples of $1,000 in excess thereof.
SECTION 2.04 Execution, Authentication, Delivery and Dating. The Notes shall be
executed on behalf of the Issuer by one of the Authorized Officers of the
Issuer. The signature of such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at the time of such signature the Authorized Officers of
the Issuer shall bind the Issuer, notwithstanding the fact that such individuals
or any of them have ceased to hold such offices prior to the authentication and
delivery of such Notes or did not hold such offices at the date of issuance of
such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer
to the Authenticating Agent for authentication and the Authenticating Agent,
upon receipt of an Issuer Order, shall authenticate and deliver such Notes as
provided in this Indenture and not otherwise.
Each Note authenticated and delivered by the Authenticating
Agent upon Issuer Order on the Closing Date shall be dated as of the Closing
Date. All other Notes that are authenticated after the Closing Date for any
other purpose under this Indenture shall be dated the date of their
authentication.
Upon the transfer, exchange or replacement of a Note under
this Section 2.04, or under Section 2.05 or 2.06, the Issuer may require the
payment by the Holder thereof of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Indenture Trustee) connected
therewith.
Notes issued upon transfer, exchange or replacement of other
Notes shall be issued in authorized denominations reflecting the original
Aggregate Outstanding Principal Amount of the Notes so transferred, exchanged or
replaced, but shall represent only the current Aggregate Outstanding Principal
Amount of the Notes so transferred, exchanged or replaced.
In the event that any Note is divided into more than one Note
in accordance with this Article Two, the original Aggregate Outstanding
Principal Amount of such Note shall be proportionately divided among the Notes
delivered in exchange therefor and shall be deemed to be the original Aggregate
Outstanding Principal Amount of such subsequently issued Notes.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
Certificate of Authentication, substantially in the form provided for herein,
executed by the Authenticating Agent by the manual signature of one of their
Responsible Officers, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.05 Registration of Notes, Registration of Transfers and Exchange. (a)
The Issuer shall cause to be kept a register (the "Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Notes and the registration of transfers of
Notes. The Note Register shall be in written form or be capable of being
converted into written form within a reasonable time. The Indenture Trustee is
initially appointed "Note Registrar" for purposes of registering the Notes. Upon
any resignation or removal of the Note Registrar, the Issuer shall promptly
appoint a successor or, in the absence of such appointment, assume the duties of
Note Registrar.
If a Person other than the Indenture Trustee is appointed by
the Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt
written notice of the appointment of a Note Registrar and of the location, and
any change in the location, of the Note Registrar, and the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof and the Indenture Trustee shall have the right to rely
conclusively upon a certificate executed on behalf of the Note Registrar by an
Officer thereof as to the names and addresses of the Holders of the Notes and
the principal amounts and numbers of such Notes.
A Note and the obligations evidenced thereby may be assigned
or otherwise transferred in whole or in part pursuant to the terms of this
Section 2.05 only by the registration of such assignment and transfer of such
Note on the Note Register (and each Note shall so expressly provide). Any
assignment or transfer of all or a part of a Note shall be registered on the
Note Register only upon surrender for registration of assignment or transfer of
the Note duly endorsed (or accompanied by a written instrument of assignment or
transfer reasonably satisfactory to the Indenture Trustee duly executed by such
transferee) by the registered holder thereof, and thereupon one or more new
Notes in the same Aggregate Outstanding Principal Amount shall be issued to the
designated assignee or transferee and the old Note shall be returned to the
Issuer marked "canceled". Prior to the due presentment for registration or
assignment or transfer of any Note, the Issuer, the Indenture Trustee and the
Registrar shall treat the Person in whose name such Note is registered as the
owner thereof for the purpose of receiving all payments thereon and, subject to
the provision of Section 2.08 hereof, for all other purposes, notwithstanding
any notice to the contrary.
Subject to this Section 2.05, upon surrender for registration
of transfer of any Note at the Issuer's Office, the Issuer shall execute, and
the Authenticating Agent shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denomination and of a like Aggregate Outstanding Principal Amount.
Subject to the provisions of Section 2.02, at the option of
the Holder, Notes may be exchanged for Notes of like terms, in any authorized
denominations and of like Aggregate Outstanding Principal Amount, upon surrender
of the Notes to be exchanged at the Issuer's Office. Whenever any Note is
surrendered for exchange, the Issuer shall execute and the Authenticating Agent
shall authenticate and deliver the Notes that the Noteholder making the exchange
is entitled to receive.
All Notes issued and authenticated upon any registration of
transfer or exchange of Notes shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or
exchange.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Indenture Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The Issuer shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before any selection of Notes to be redeemed and ending at the
close of business in New York, New York the day of the mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any Note
so selected for redemption.
(b) No Note may be sold or transferred (including, without limitation, by pledge
or hypothecation) unless such sale or transfer is exempt from the registration
requirements of the Securities Act and is exempt under applicable state
securities laws and the laws of any other applicable jurisdiction. No Note may
be offered, sold or delivered within the United States or to, or for the benefit
of, U.S. persons except to persons who are (i) Qualified Institutional Buyers,
(ii) Qualified Purchasers and (iii) not Competitors who are purchasing Notes in
an Aggregate Principal Outstanding Amount of not less than $1,000,000 for their
own account, or for the accounts of one or more Persons that are (1) Qualified
Institutional Buyers, (2) Qualified Purchasers and (3) not Competitors in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Rule 144A or in a transaction exempt from the registration
requirements of the Securities Act. The Notes may also be sold or resold, as the
case may be, to non-U.S. persons who are (i) not U.S. residents for purposes of
Section 7(d) of the Investment Company Act in "offshore transactions" in
reliance on Regulation S, (ii) Qualified Purchasers and (iii) not Competitors.
No interest in a Regulation S Global Note or Definitive Note may be held by a
U.S. person at any time. Furthermore, no Note may be sold or transferred
(including without limitation, by pledge or hypothecation) to a Competitor. None
of the Issuer, the Indenture Trustee, the Insurer or any other Person may
register any of the Notes under the Securities Act or any state securities laws.
(c) The applicable procedures utilized or imposed from time to time by any
Clearance System (collectively, "Applicable Procedures") shall be applicable to
the Global Notes insofar as and to the extent beneficial interests in such
Global Notes are held by the Agent Members of or indirect participants in DTC,
Euroclear or Clearstream. Note Owners or Agent Members of DTC, Euroclear and
Clearstream shall have no rights under this Agreement with respect to such
Global Notes, and the Noteholder may be treated by the Issuer, the Indenture
Trustee, and the Insurer (and any agent of any of the foregoing) as the owner of
such Global Notes for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Issuer, or the Indenture Trustee from giving
effect to any written certification, proxy or other authorization furnished by
any Clearance System or impair, as between the Clearance System and its Agent
Members or indirect participants, the operation of customary practices governing
the exercise of the rights of a Holder of any Global Note. Requests or
directions from, or votes of, the Common Depositary or any Clearance System with
respect to any matter shall not be deemed inconsistent if made with respect to
(or in separate proportions corresponding to) different beneficial owners. The
Indenture Trustee shall not have any duty to monitor, maintain records
concerning (or determine compliance with any of the restrictions on transfer set
forth herein with respect to) Note Owners. Neither the Issuer nor the Indenture
Trustee shall have any liability for the accuracy of the records of the Common
Depositary or any Clearance System, or any actions or omissions of the Common
Depositary or any Clearance System (or of the Agent Members of or indirect
participants in any Clearance System).
(d) A Noteholder may transfer a Note and a Note Owner may transfer its
beneficial interest in a Global Note only in accordance with the following
provisions:
(i) Temporary Regulation S Global Note to Registered Note. If a Note Owner of a
Temporary Regulation S Global Note wishes at any time after the Distribution
Compliance Period to transfer its beneficial interest in an Aggregate
Outstanding Principal Amount of not less than $1,000,000 in such Temporary
Regulation S Global Note to a U.S. person, such Note Owner shall, subject to the
provisions of this Section 2.05 and the Applicable Procedures, transfer its
beneficial interest in such Temporary Regulation S Global Note for an equivalent
beneficial interest in a Registered Note. Upon receipt by the Indenture Trustee
of (A) a transfer certificate in the form of Exhibit G, given by the holder of
such beneficial interest and stating that, in the case of a transfer, the Person
transferring such interest in the Temporary Regulation S Global Note reasonably
believes that the Person acquiring such interest in the Registered Note is (i) a
Qualified Institutional Buyer and is obtaining such beneficial interest in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction, (ii) a Qualified Purchaser and (iii) is not a Competitor, (B) a
transfer certificate in the form of Exhibit H, given by the Person acquiring
such beneficial interest stating that such Person is (i) a Qualified
Institutional Buyer and is acquiring such beneficial interest in a transaction
meeting the requirements of Rule 144A and in accordance with any applicable
securities laws of any State of the United States or any other jurisdiction,
(ii) a Qualified Purchaser and (iii) not a Competitor and (C) a written order
given in accordance with the Applicable Procedures, the Indenture Trustee shall
instruct the Common Depositary to endorse the Temporary Regulation S Global Note
to reflect a reduction of the Aggregate Outstanding Principal Amount thereof by
the Aggregate Outstanding Principal Amount of the beneficial interest thereof to
be so transferred and, concurrently with such reduction, the Issuer shall
execute and furnish to the Indenture Trustee and the Indenture Trustee shall
authenticate and deliver to such transferee of such Note Owner a Registered Note
in the Aggregate Outstanding Principal Amount equal to the amount of the
reduction in the Aggregate Outstanding Principal Amount of the Temporary
Regulation S Global Note.
(ii) Permanent Regulation S Global Note to Registered Note. If a Note Owner of a
Permanent Regulation S Global Note wishes at any time after the Distribution
Compliance Period to transfer its beneficial interest in an Aggregate
Outstanding Principal Amount of not less than $1,000,000 in such Permanent
Regulation S Global Note to a U.S. person, such Note Owner shall, subject to the
provisions of this Section 2.05 and the Applicable Procedures, transfer its
beneficial interest in such Permanent Global Note for an equivalent beneficial
interest in a Registered Note. Upon receipt by the Indenture Trustee of (A) a
transfer certificate in the form of Exhibit G given by the holder of such
beneficial interest and stating that, in the case of a transfer, the Person
transferring such interest in the Permanent Regulation S Global Note reasonably
believes that the Person acquiring such interest in the Registered Note is (i) a
Qualified Institutional Buyer and is obtaining such beneficial interest in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction, (ii) a Qualified Purchaser and (iii) not a Competitor, (B) a
transfer certificate in the form of Exhibit H, given by the Person acquiring
such beneficial interest stating that such Person is (i) a Qualified
Institutional Buyer and is acquiring such beneficial interest in a transaction
meeting the requirements of Rule 144A and in accordance with any applicable
securities laws of any State of the United States or any other jurisdiction,
(ii) a Qualified Purchaser and (iii) not a Competitor and (C) a written order
given in accordance with the Applicable Procedures, the Indenture Trustee shall
instruct the Common Depositary to endorse the Permanent Regulation S Global Note
to reflect a reduction of the Aggregate Outstanding Principal Amount thereof by
the Aggregate Outstanding Principal Amount of the beneficial interest thereof to
be so transferred and, concurrently with such reduction, the Issuer shall
execute and furnish to the Indenture Trustee, and the Indenture Trustee shall
authenticate and deliver to such transferee of such Note Owner, a Registered
Note in a principal amount equal to the amount of the reduction in the Aggregate
Outstanding Principal Amount of the Permanent Regulation Global Note.
(iii) Temporary Regulation S Global Note to Rule 144A Global Note. If a Note
Owner of a Temporary Regulation S Global Note and deposited with the Common
Depositary wishes at any time after the Distribution Compliance Period to
exchange its interest in such Temporary Regulation S Global Note for an interest
in a Rule 144A Global Note or to transfer not less than $1,000,000 in an
Aggregate Outstanding Principal Amount of its interest in such Temporary
Regulation S Global Note to a Person who wishes to take delivery thereof in the
form of an interest in the corresponding Rule 144A Global Note, such holder may,
subject to the immediately succeeding sentence and the Applicable Procedures,
cause the exchange or transfer of such interest for an equivalent beneficial
interest in the Rule 144A Global Note. To the extent that the Indenture Trustee,
as Note Registrar, has received (A) instructions from DTC, Euroclear,
Clearstream or the Common Depositary, as the case may be, directing the
Indenture Trustee, as Note Registrar, to cause to be credited a beneficial
interest in the Rule 144A Global Note equal to the beneficial interest in the
Temporary Regulation S Global Note to be exchanged or transferred but not less
than the minimum denomination applicable to any Notes held in the form of Rule
144A Global Notes, such instructions to contain information regarding the
participant account with the Common Depositary to be credited with such
increase, (B) a certificate in the form of Exhibit G, given by the holder of
such beneficial interest and stating that, (1) in the case of a transfer, the
Person transferring such interest in the Temporary Regulation S Global Note
reasonably believes that the Person acquiring such interest in the Rule 144A
Global Note is (a) a Qualified Institutional Buyer and is obtaining such
beneficial interest in a transaction meeting the requirements of Rule 144A and
in accordance with any applicable securities laws of any state of the United
States or any other jurisdiction, (b) a Qualified Purchaser and (c) not a
Competitor and, (C) a transfer certificate in the form of Exhibit H, given by
the Person acquiring such beneficial interest stating that such Person is (i) a
Qualified Institutional Buyer and is acquiring such beneficial interest in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any State of the United States or any other
jurisdiction, (ii) a Qualified Purchaser and (iii) not a Competitor and (D) in
the case of an exchange, a certificate satisfactory to the Indenture Trustee and
the Issuer stating that the holder is a Qualified Institutional Buyer and a
Qualified Purchaser, then the Indenture Trustee, as Note Registrar, will
instruct the Common Depositary to reduce the Temporary Regulation S Global Note
by the Aggregate Outstanding Principal Amount of the beneficial interest in the
Temporary Regulation S Global Note to be transferred or exchanged, and the
Indenture Trustee, as Note Registrar, shall instruct the Common Depositary,
concurrently with such reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest in
the Rule 144A Global Note equal to the reduction in the principal amount of the
Regulation S Global Note.
(iv) Permanent Regulation S Global Note to Rule 144A Global Note. If a Note
Owner of a Permanent Regulation S Global Note deposited with the Common
Depositary wishes at any time after the Distribution Compliance Period to
exchange its interest in such Permanent Regulation S Global Note for an interest
in a Rule 144A Global Note or to transfer not less than $1,000,000 in an
Aggregate Outstanding Principal Amount of its interest in such Permanent
Regulation S Global Note to a Person who wishes to take delivery thereof in the
form of an interest in the corresponding Rule 144A Global Note, such holder may,
subject to the immediately succeeding sentence and the Applicable Procedures,
cause the exchange or transfer of such interest for an equivalent beneficial
interest in the Rule 144A Global Note. To the extent that the Indenture Trustee,
as Note Registrar, has received (A) instructions from DTC, Euroclear,
Clearstream or the Common Depositary, as the case may be, directing the
Indenture Trustee, as Note Registrar, to cause to be credited a beneficial
interest in the Rule 144A Global Note equal to the beneficial interest in the
Permanent Regulation S Global Note to be exchanged or transferred but not less
than the minimum denomination applicable to any Notes held in the form of Rule
144A Global Notes, such instructions to contain information regarding the
participant account with the Common Depositary to be credited with such
increase, (B) a certificate in the form of Exhibit G hereto given by the holder
of such beneficial interest and stating that, (1) in the case of a transfer, the
Person transferring such interest in the Permanent Regulation S Global Note
reasonably believes that the Person acquiring such interest in the Rule 144A
Global Note is (a) a Qualified Institutional Buyer and is obtaining such
beneficial interest in a transaction meeting the requirements of Rule 144A and
in accordance with any applicable securities laws of any state of the United
States or any other jurisdiction, (b) a Qualified Purchaser and (c) not a
Competitor and (C) a transfer certificate in the form of Exhibit H, given by the
Person acquiring such beneficial interest stating that such Person is (i) a
Qualified Institutional Buyer and is acquiring such beneficial interest in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any State of the United States or any other
jurisdiction, (ii) a Qualified Purchaser and (iii) not a Competitor, then DTC,
Euroclear, Clearstream or the Indenture Trustee, as Note Registrar, will
instruct the Common Depositary to reduce the Permanent Regulation S Global Note
by the Aggregate Outstanding Principal Amount of the beneficial interest in the
Permanent Regulation S Global Note to be transferred or exchanged, and the
Indenture Trustee, as Note Registrar, shall instruct the Common Depositary,
concurrently with such reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest in
the Rule 144A Global Note equal to the reduction in the principal amount of the
Regulation S Global Note.
(v) Registered Note to Regulation S Global Note. If a Holder of a Registered
Note wishes at any time to transfer its beneficial interest in such Registered
Note to a Person that is not a U.S. person, such Holder shall, subject to the
provisions of this Section 2.05 and the Applicable Procedures, transfer its
beneficial interest in such Registered Note for an equivalent beneficial
interest in the applicable Temporary Regulation S Global Note (or, after the end
of the Distribution Compliance Period the Permanent Regulation S Global Note).
Such transfer to a Person that is not a U.S. person shall be to non-U.S. persons
who are (i) not U.S. residents for purposes of Section 7(d) of the Investment
Company Act in "offshore transactions" in reliance on Regulation S, (ii)
Qualified Purchasers and (iii) not Competitors. Upon receipt by the Indenture
Trustee of (A) transfer certificates substantially in the form of the transfer
certificates set forth as Exhibit I and Exhibit J, (B) a certificate
substantially in the form of the certificate of non U.S. ownership set forth as
Exhibit F hereto and (C) a written order given in accordance with the Applicable
Procedures, the Indenture Trustee shall cancel such Registered Note in
accordance with Section 2.09 and record the transfer in the Note Register in
accordance with Section 2.05(a) and concurrently with such cancellation and
recordation shall instruct the Common Depositary to endorse the Temporary
Regulation S Global Note (or, after the end of the Distribution Compliance
Period, the Permanent Regulation S Global Note) to reflect an increase of the
aggregate principal amount thereof by the Aggregate Outstanding Principal Amount
of the Registered Note to be so transferred.
(vi) Registered Note to Rule 144A Global Note. If a Holder of a Registered Note
wishes at any time to transfer its beneficial interest in such Registered Note
to a Person that is a U.S. person, such Holder shall, subject to the provisions
of this Section 2.05 and the Applicable Procedures, transfer its beneficial
interest in such Registered Note for an equivalent beneficial interest in the
applicable Rule 144A Global Note. Such transfer to a U.S. person shall be
persons who are (i) Qualified Institutional Buyers, (ii) Qualified Purchasers
and (iii) not Competitors who are purchasing Notes in an Aggregate Principal
Outstanding Amount of not less than $1,000,000 for their own account, or for the
accounts of one or more Persons that are (1) Qualified Institutional Buyers, (2)
Qualified Purchasers and (3) not Competitors in a transaction exempt from the
registration requirements of the Securities Act pursuant to Rule 144A or in a
transaction exempt from the registration requirements of the Securities Act.
Upon receipt by the Indenture Trustee of (A) transfer certificates substantially
in the form of the transfer certificates set forth as Exhibit G and H, and (B) a
written order given in accordance with the Applicable Procedures, the Indenture
Trustee shall cancel such Registered Note in accordance with Section 2.09 and
record the transfer in the Note Register in accordance with Section 2.05(a) and
concurrently with such cancellation and recordation shall instruct the Common
Depositary to endorse the Rule 144A Global Note to reflect an increase of the
aggregate principal amount thereof by the Aggregate Outstanding Principal Amount
of the Registered Note to be so transferred.
(vii) Rule 144A Global Note to Regulation S Global Note. If a Note Owner of a
Rule 144A Global Note deposited with the Common Depositary wishes at any time to
exchange its interest in such Rule 144A Global Note for an interest in the
corresponding Regulation S Global Note, or to transfer its interest in such Rule
144A Global Note to a Person who wishes to take delivery thereof in the form of
an interest in the corresponding Regulation S Global Note, such holder, provided
such holder or, in the case of a transfer to another Person, such Person is not
a U.S. Person, may, subject to Section 2.05(d) hereof and the immediately
succeeding sentence and the Applicable Procedures, exchange or transfer or cause
the exchange or transfer of such interest for an equivalent beneficial interest
in the Regulation S Global Note; provided that, in each case, such beneficial
interest in such Regulation S Global Note shall be held at all times through
DTC. Upon receipt by the Indenture Trustee, as Note Registrar, of (A)
instructions given in accordance with the Common Depositary's procedures from an
Agent Member directing the Indenture Trustee to cause to be credited a
beneficial interest in the Regulation S Global Note in an amount equal to the
beneficial interest in the Rule 144A Global Note to be exchanged or transferred,
(B) a written order given in accordance with the Common Depositary's procedures
containing information regarding the participant account of the Common
Depositary and, in the case of a transfer or exchange pursuant to and in
accordance with Regulation S, the DTC account to be credited with such increase,
(C) a certificate substantially in the form of the certificate of non U.S.
ownership set forth as Exhibit F hereto, (D) a certificate in the form of
Exhibit I given by the holder of such beneficial interest stating that the
exchange or transfer of such interest has been made in compliance with the
transfer restrictions applicable to the Global Notes, including in accordance
with Regulation S and (E) a certificate in the form of Exhibit J given by the
purchaser of such beneficial interest stating that the exchange or transfer of
such interest has been made in compliance with the transfer restrictions
applicable to the Global Notes, including in accordance with Regulation S, the
Indenture Trustee, as Note Registrar, shall instruct the Common Depositary to
reduce the principal amount of the Rule 144A Global Note and to increase the
principal amount of the Regulation S Global Note by the aggregate principal
amount of the beneficial interest in the Rule 144A Global Note to be exchanged
or transferred, and to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the Regulation S
Global Note equal to the reduction in the principal amount of the Rule 144A
Global Note.
(viii) Transfer of Interests in a Registered Note. Registered Notes may only be
transferred to investors that are (A) Qualified Institutional Buyers who are
also Qualified Purchasers in transactions exempt under Rule 144A from the
registration requirements of the Securities Act, (B) non-U.S. persons who are
also Qualified Purchasers in transactions exempt under Regulation S from the
registration requirements of the Securities Act, which investors take delivery
in the form of a Regulation S Global Note or, if applicable, a Definitive Note
and (C) in each case with respect to clauses (A) and (B) above, to investors who
are not Competitors and in accordance with any applicable securities laws of any
state of the United States and any other applicable jurisdiction and in
compliance with the requirements of this Section 2.05. The transferor and
transferee of any such Registered Note shall be required to execute and deliver
to the Indenture Trustee, a transfer certificate in substantially the form of
the transfer certificate set forth as Exhibit G and H, respectively.
(ix) Transfer of Interests in the Global Notes. Notwithstanding anything herein
to the contrary, transfers of interests in a Global Note may be made (a) by
book-entry transfer of beneficial interests within the relevant Clearing Agency
or (b) (i) in the case of transfers of interests in a Rule 144A Global Note, in
accordance with Section 2.05(d)(iii) hereof, or (ii) in the case of transfers of
interest in a Regulation S Global Note, in accordance with Section 2.05(d)(vi)
hereof; provided that, in the case of any such transfer of interests pursuant to
clause (a) or (b) above, such transfer is made in accordance with subsection (x)
below.
(x) Restrictions on Transfers. (A) Transfers of interest in a Regulation S
Global Note to a U.S. Person or a U.S. resident (as determined for purposes of
the investment Company Act) after the Distribution Compliance Period shall be
made by (a) delivery of an interest in a Rule 144A Global Note and shall be
limited to transfers made pursuant to the provisions of Sections 2.05(d)(iii) or
(iv) or (b) delivery of an interest in a Registered Note and shall be limited to
transfers made pursuant to the provisions of Section 2.05(d)(i) or (ii).
Beneficial interests in a Regulation S Global Note may only be held through
Euroclear and Clearstream.
(B) Any transfer of an interest in a Rule 144A Global Note or a Registered Note
to a U.S. Person or a U.S. resident (as determined for purposes of the
Investment Company Act) that is not a Qualified Purchaser shall be null and void
and shall not be given effect for any purpose hereunder, and the Indenture
Trustee shall hold any funds conveyed by the intended transferee of such
interest in such Rule 144A Global Note or such Registered Note in trust for the
transferor and shall promptly reconvey such funds to such Person in accordance
with the written instructions thereof delivered to the Indenture Trustee.
Beneficial interests in Rule 144A Global Notes may only be held through DTC.
(xi) Transfer of Interests in a Definitive Note. Definitive Notes may only be
transferred to investors that are (A) non-U.S. persons who are not U.S.
residents for purposes of Section 7(d) of the Investment Company Act in
transactions exempt under Regulation S from the registration requirement of the
Securities Act and who are also Qualified Purchasers or (B) (I) Qualified
Institutional Buyers and (II) Qualified Purchasers in transactions exempt under
Rule 144A from the registration requirements of the Securities Act and which
investors take delivery in the form of a Registered Note and (C) in each case
with respect to clauses (A) and (B) above, to investors who are not Competitors.
(e) Each Person who becomes a Holder of a Registered Note will make, or if
permitted by the Issuer, be deemed to have made the representations set forth
below:
(i) (A) The Holder is a Qualified Institutional Buyer and a Qualified Purchaser,
(B) the Holder is aware that the sale to it is being made pursuant to Rule 144A
and is purchasing the Notes for its own account or the account of another
Qualified Purchaser that is also a Qualified Institutional Buyer as to which the
Holder exercises sole investment discretion and each of the Holder and any such
account is acquiring the Notes as principal for its own account for investment
and not for sale in connection with any distribution thereof, (C) the Holder and
any such account was not formed solely for the purpose of investing in the Notes
(except when each beneficial owner of the Holder or any such account is a
Qualified Purchaser), (D) to the extent the Holder (or any account for which it
is purchasing the Notes) is a private investment company formed before April 30,
1996, the Holder and each such account has received the necessary consent from
its beneficial owners without loss of any applicable exemptions under the
Investment Company Act, (E) the Holder and any such account is not a pension,
profit sharing or other retirement trust fund or plan in which the partners,
beneficiaries or participants, as applicable, may designate the particular
investments to be made, (F) the Holder is not a broker-dealer that owns and
invests on a discretionary basis less than $25,000,000 in securities of issuers
that are not affiliated persons of the dealer, (G) the Holder agrees that it and
each such account shall not hold such Notes for the benefit of any other Person
and shall be the sole beneficial owner thereof for all purposes and that it
shall not sell participation interests in the Notes or enter into any other
arrangement pursuant to which any other Person shall be entitled to a beneficial
interest in the distributions on the Notes, (H) the Notes purchased directly or
indirectly by the Holder or any account for which it is purchasing the Notes
constitute an investment of no more than 40% of the Holder's and each such
account's assets (except when each beneficial owner of the Holder or any such
account is a Qualified Purchaser), (I) the Holder and each such account is
purchasing the Notes in a principal amount of not less than $1,000,000 for the
Holder and each such account, (J) the Holder will provide notice of the transfer
restrictions set forth in this Indenture (including the exhibits hereto) to any
transferee of its Notes and (K) the Holder understands and agrees that any
purported transfer of the Notes to a Holder that does not comply with the
requirements of this subsection (i) shall be null and void ab initio and that no
representation is made by the Issuer, the Insurer or the Initial Purchasers, as
the case may be, to the Holder as to the availability of any exemption under the
Securities Act, the Investment Company Act or any state securities laws for the
resales of the Notes.
(ii) The Holder understands that the Notes are being offered only in a
transaction not involving any public offering or sale in the United States
within the meaning of the Securities Act, the Notes have not been and will not
be registered under the Securities Act, and, if in the future the Holder decides
to offer, resell, pledge or otherwise transfer the Notes, such Notes may be
reoffered, resold or pledged or otherwise transferred only (A) (i) to a person
whom the purchaser reasonably believes is a Qualified Institutional Buyer
purchasing for its own account or for the account of a Qualified Institutional
Buyer as to which the purchaser exercises sole investment discretion in a
transaction meeting the requirements of Rule 144A or (ii) in an offshore
transaction complying with Regulation S and (B) in accordance with all
applicable securities laws of the states of the United States. The Holder also
understands that the Issuer has not been registered under the Investment Company
Act. Before any interest in a Note may be offered, sold, pledged or otherwise
transferred to a person who takes delivery in the form of an interest in the
Regulation S Global Notes, the transferor and the transferee will be required to
provide the Indenture Trustee with a written certification in the form of
Exhibits I and J respectively, as to compliance with the transfer restrictions
described herein. The Holder understands and agrees that any purported transfer
of the Notes to a purchaser that does not comply with the requirements of this
clause (ii) shall be null and void ab initio and that no representation is made
by the Issuer or the Initial Purchasers, as the case may be, as to the
availability of any exemption under the Securities Act, the Investment Company
Act or any state securities laws for resale of the Notes.
(iii) The Holder is not purchasing the Notes with a view to the resale,
distribution or other disposition thereof in violation of the Securities Act.
The Holder understands that an investment in the Notes involves certain risks,
including the risk of loss of all or a substantial part of its investment under
certain circumstances. The Holder has had access to such financial and other
information concerning the Issuer and the Notes as it deemed necessary or
appropriate in order to make an informed investment decision with respect to its
purchase of the Notes, including an opportunity to ask questions of and request
information from the Issuer.
(iv) In connection with the purchase of the Notes: (A) none of the Issuer, the
Initial Purchasers, the Insurer or the Servicers is acting as a fiduciary or
financial or investment adviser for the Holder; (B) the Holder is not relying
(for purposes of making any investment decision or otherwise) upon any advice,
counsel or representations (whether written or oral) of the Issuer, the Initial
Purchasers, the Insurer, the Indenture Trustee or the Servicers other than in a
current offering memorandum for such Notes and any representations expressly set
forth in a written agreement with such party; (C) none of the Issuer, the
Initial Purchasers, the Insurer, the Indenture Trustee or the Servicers have
given to the Holder (directly or indirectly through any other Person) any
assurance, guarantee, or representation whatsoever as to the expected or
projected success, profitability, return, performance, result, effect,
consequence, or benefit (including legal, regulatory, tax, financial,
accounting, or otherwise) of this Indenture or documentation for the Notes; (D)
the Holder has consulted with its own legal, regulatory, tax, business,
investment, financial, and accounting advisers to the extent it has deemed
necessary, and it has made its own investment decisions (including decisions
regarding the suitability of any transaction pursuant to this Indenture) based
upon its own judgment and upon any advice from such advisers as it has deemed
necessary and not upon any view expressed by the Issuer, the Initial Purchasers,
the Insurer, the Indenture Trustee or the Servicers; (E) the Holder has
determined that the rates, prices or amounts and other terms of the purchase and
sale of the Notes reflect those in the relevant market for similar transactions;
(F) the Holder is purchasing the Notes with a full understanding of all of the
terms, conditions and risks thereof (economic and otherwise), and it is capable
of assuming and willing to assume (financially and otherwise) those risks; and
(G) the Holder is a sophisticated investor.
(v) The Holder understands that the Notes offered in reliance on the exemption
from registration under the Securities Act provided by Rule 144A or on an
exemption from registration under the Securities Act will bear the applicable
legend set forth in Exhibit D, and will be represented by one or more Registered
Notes. The Holder also understands that the Registered Notes and Rule 144A Notes
may not at any time be held by or on behalf of U.S. persons that are (A)
Competitors, (B) not Qualified Institutional Buyers or (C) not Qualified
Purchasers. Before any interest in a Registered Note may be offered, resold,
pledged or otherwise transferred to a Person who takes delivery in the form of
an interest in a Global Note, the transferor will be required to comply with the
requirements set forth above in Section 2.05(d)(v) or (vi), as applicable as to
compliance with the transfer restrictions.
(vi) (A) The Holder or any holder of an interest in a Note understands that no
employee benefit or other plan that is subject to ERISA or Section 4975 of the
Code, and no entity whose underlying assets include "plan assets" by reason of
any such plan's investment in the entity, and no governmental plan which is
subject to any federal, state or local law that is substantially similar to the
provisions of Section 406 of ERISA or Section 4975 of the Code may purchase or
hold such Note or any interest therein, unless such purchase and the holding of
such Note or such interest therein would not constitute or result in a
non-exempt prohibited transaction under ERISA or Section 4975 of the Code (or in
the case of a governmental plan, any substantially similar federal, state or
local law). The Holder of a Note, or any holder of an interest in a Note by its
purchase and holding of a Note or any interest therein, represents and warrants
that (1) it is neither an employee benefit or other plan that is subject to
ERISA or Section 4975 of the Code nor any entity whose underlying assets include
"plan assets" by reason of such plan investment in the entity nor a governmental
plan subject to any federal, state or local law that is substantially similar to
the provisions of Section 406 of ERISA or Section 4975 of the Code; or (2) if it
is an entity described in clause (1), the acquisition or holding of such Note or
an interest therein will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code (or in the case of a
governmental plan, any substantially similar federal, state or local law).
(vii) The Holder will not, at any time, offer to buy or offer to sell the Notes
by any form of general solicitation or advertising, including, but not limited
to, any advertisement, article, notice or other communication published in any
newspaper, magazine or similar medium or broadcast over television or radio or
seminar or meeting whose attendees have been invited by general solicitations or
advertising.
(viii) The Holder is not a Competitor.
(ix) The Holder understands that the Issuer, the Indenture Trustee, the Insurer,
the Initial Purchasers and their respective counsel will rely upon the accuracy
and truth of the foregoing representations, and it hereby consents to such
reliance.
(f) Each Person who becomes a Note Owner of a Rule 144A Global Note will
represent, or if permitted by the Issuer, will be deemed to have represented and
agreed with the Issuer as follows:
(i) (A) The Note Owner is a Qualified Institutional Buyer and a Qualified
Purchaser, (B) the Note Owner is aware that the sale to it is being made
pursuant to Rule 144A and is purchasing the Notes for its own account or the
account of another Qualified Purchaser that is also a Qualified Institutional
Buyer as to which the Note Owner exercises sole investment discretion and each
of the Note Owner and any such account is acquiring the Notes as principal for
its own account for investment and not for sale in connection with any
distribution thereof, (C) the Note Owner and any such account was not formed
solely for the purpose of investing in the Notes (except when each beneficial
owner of the Note Owner or any such account is a Qualified Purchaser), (D) to
the extent the Note Owner (or any account for which it is purchasing the Notes)
is a private investment company formed before April 30, 1996, the Note Owner and
each such account has received the necessary consent from its beneficial owners
without loss of any applicable exemption under the Investment Company Act, (E)
the Note Owner and any such account is not a pension, profit sharing or other
retirement trust fund or plan in which the partners, beneficiaries or
participants, as applicable, may designate the particular investments to be
made, (F) the Note Owner is not a broker-dealer that owns and invests on a
discretionary basis less than $25,000,000 in securities of issuers that are not
affiliated persons of the dealer, (G) the Note Owner agrees that it and each
such account shall not hold such Notes for the benefit of any other Person and
shall be the sole beneficial owner thereof for all purposes and that it shall
not sell participation interests in the Notes or enter into any other
arrangement pursuant to which any other Person shall be entitled to a beneficial
interest in the distributions on the Notes, (H) the Notes purchased directly or
indirectly by the Note Owner or any account for which it is purchasing the Notes
constitute an investment of no more than 40% of the Note Owner's and each such
account's assets (except when each beneficial owner of the Note Owner or any
such account is a Qualified Purchaser), (I) the Note Owner and each such account
is purchasing the Notes in a principal amount of not less than $1,000,000 for
the Note Owner and each such account, (J) the Note Owner will provide notice of
the transfer restrictions set forth in this Indenture (including the exhibits
hereto) to any transferee of its Notes and (K) the Note Owner understands and
agrees that any purported transfer of the Notes to a Note Owner that does not
comply with the requirements of this subsection (i) shall be null and void ab
initio and that no representation is made by the Issuer, the Insurer or the
Initial Purchasers, as the case may be, to the Note Owner as to the availability
of any exemption under the Securities Act, the Investment Company Act or any
state securities laws for the resales of the Notes.
(ii) The Note Owner understands that the Notes have not been and will not be
registered under the Securities Act, and may be reoffered, resold or pledged or
otherwise transferred only (A) (i) to a person whom the purchaser reasonably
believes is a Qualified Institutional Buyer purchasing for its own account or
for the account of a Qualified Institutional Buyer as to which the purchaser
exercises sole investment discretion in a transaction meeting the requirements
of Rule 144A or (ii) in an offshore transaction complying of Regulation S and
(B) in accordance with all applicable securities laws of the states of the
United States. The Note Owner also understands that the Issuer has not been
registered under the Investment Company Act. Before any interest in a Note may
be offered, sold, pledged or otherwise transferred to a person who takes
delivery in the form of an interest in the Regulation S Global Securities, the
transferor and the transferee will be required to provide the Indenture Trustee
with written certifications in the form of Exhibits I and J respectively, as to
compliance with the transfer restrictions described herein. The Note Owner
understands and agrees that any purported transfer of the Notes to a purchaser
that does not comply with the requirements of this clause (ii) shall be null and
void ab initio and that no representation is made by the Issuer or the Initial
Purchasers, as the case may be, as to the availability of any exemption under
the Securities Act, the Investment Company Act or any state securities laws for
resale of the Notes.
(iii) The Note Owner is not purchasing the Notes with a view toward the resale,
distribution or other disposition thereof in violation of the Securities Act.
The Note Owner understands that an investment in the Notes involves certain
risks, including the risk of loss of its entire investment in the Notes under
certain circumstances. The Note Owner has had access to such financial and other
information concerning the Issuer and the Notes as it deemed necessary or
appropriate in order to make an informed investment decision with respect to its
purchase of the Notes, including an opportunity to ask questions of and request
information from the Issuer.
(iv) In connection with the purchase of the Notes: (A) none of the Issuer, the
Initial Purchasers, the Servicers, the Insurer or the Indenture Trustee is
acting as a fiduciary or financial or investment adviser for the holder; (B) the
Note Owner is not relying (for purposes of making any investment decision or
otherwise) upon any advice, counsel or representations (whether written or oral)
of the Issuer, the Initial Purchasers, the Servicers or the Indenture Trustee
other than in the offering circular for such Notes and any representations
expressly set forth in a written agreement with such party; (C) none of the
Issuer, the Initial Purchasers, the Insurer, the Servicers or the Indenture
Trustee has given to the Note Owner (directly or indirectly through any other
person) any assurance, guarantee, or representation whatsoever as to the
expected or projected success, profitability, return, performance, result,
effect, consequence or benefit (including legal, regulatory, tax, financial,
accounting or otherwise) as to an investment in the Notes; (D) the Note Owner
has consulted with its own legal, regulatory, tax, business, investment,
financial and accounting advisers to the extent it has deemed necessary, and it
has made its own investment decisions (including decisions regarding the
suitability of any transaction pursuant to this Indenture) based upon its own
judgment and upon any advice from such advisers as it has deemed necessary and
not upon any view expressed by the Issuer, the Initial Purchasers, the Insurer,
the Servicers or the Indenture Trustee; (E) the Note Owner has evaluated the
rates, prices or amounts and other terms and conditions of the purchase and sale
of the Notes with a full understanding of all of the risks thereof (economic and
otherwise), and it is capable of assuming and willing to assume (financially and
otherwise) those risks; and (F) the Note Owner is a sophisticated investor.
(v) The Note Owner or any Note Owner of an interest in a Note understands that
no employee benefit or other plan that is subject to ERISA or Section 4975 of
the Code, and no entity whose underlying assets include "plan assets" by reason
of any such plan's investment in the entity, and no governmental plan which is
subject to any federal, state or local law that is substantially similar to the
provisions of Section 406 of ERISA or Section 4975 of the Code may purchase or
hold such Note or any interest therein, unless such purchase and the owning of
such Note or such interest therein would not constitute or result in a
non-exempt prohibited transaction under ERISA or Section 4975 of the Code (or in
the case of a governmental plan, any substantially similar federal, state or
local law). The Note Owner or any owner of an interest in a Note, by its
purchase and owning of a Note or any interest therein, represents and warrants
that (1) it is neither an employee benefit or other plan that is subject to
ERISA or Section 4975 of the Code nor any entity whose underlying assets include
"plan assets" by reason of such plan investment in the entity nor a governmental
plan subject to any federal, state or local law that is substantially similar to
the provisions of Section 406 of ERISA or Section 4975 of the Code; or (2) if it
is an entity described in clause (1), that the acquisition or holding of such
Note or an interest therein will not constitute or result in a non-exempt
prohibited transaction under ERISA or Section 4975 of the Code (or in the case
of a governmental plan, any substantially similar federal, state or local law).
(vi) The Note Owner will not, at any time, offer to buy or offer to sell the
Notes by any form of general solicitation or advertising, including, but not
limited to, any advertisement, article, notice or other communication published
in any newspaper, magazine or similar medium or broadcast over television or
radio or seminar or meeting whose attendees have been invited by general
solicitations or advertising.
(vii) The Notes will bear the applicable legends set forth in Exhibit B hereto.
(viii) The Note Owner is not a Competitor.
(ix) The Note Owner understands that the Issuer, the Indenture Trustee, the
Insurer, the Initial Purchasers, and their respective counsel will rely upon the
accuracy and truth of the foregoing representations, and it hereby consents to
such reliance.
(g) Each Note Owner of a beneficial interest in a Regulation S Global Security
will be deemed to have represented and agreed with the Issuer as set forth in
clauses (ii), (iii), (iv), (v), (vi), (viii) and (ix) above and to have further
represented and agreed with the Issuer that (i) the Note Owner is a non-U.S.
Person that is a Qualified Purchaser acquiring the Notes in an offshore
transaction meeting the requirements of Regulation S and in a principal amount
of not less than $1,000,000; (ii) such Note Owner is not acquiring any Note as
part of a plan to reduce, avoid or evade U.S. federal income taxes owed, owing
or potentially owed or owing; (iv) the Note Owner is aware that the Notes being
sold to it will be represented (1) initially by one or more Temporary Regulation
S Global Notes and (2) on or after the last day of the Distribution Compliance
Period, by one or more Permanent Regulation S Global Notes, and that in each
case beneficial interests therein may be held only through Euroclear or
Clearstream; and (v) the Note Owner understands that, prior to the first
Business Day following the Distribution Compliance Period, any resale or other
transfer of beneficial interests in a Temporary Regulation S Global Note in the
United States or to U.S. Persons shall not be permitted.
(h) Each Note Owner of a beneficial interest in a Definitive Security will
represent and agree, or if permitted by the Issuer, will be deemed to have
represented and agreed with the Issuer as set forth in Section 2.05(g) above
(other than with respect to Section 2.05 (g)(iv) and (v)).
(i) Notwithstanding a request made to remove any legend
pursuant to Rule 144A, Regulation S or Section 4(1) of the Securities Act from
any of the Notes, such Notes shall bear the applicable legend, and the
applicable legend shall not be removed unless there is delivered to the Issuer
such satisfactory evidence, which may include an Opinion of Counsel satisfactory
to the Issuer, as may be reasonably required by the Issuer to the effect that
neither the applicable legend nor the restrictions on transfer set forth therein
are required to ensure that transfers thereof comply with the provisions of Rule
144A, Regulation S or Section 4(1) of the Securities Act, as applicable, and the
Investment Company Act. Upon provision of such satisfactory evidence (a copy of
which shall be provided by the Indenture Trustee to the Insurer), the Indenture
Trustee, at the direction of the Issuer, a copy of which shall be delivered to
the Insurer, shall authenticate and deliver the Notes that do not bear such
legend.
(j) Any transfer of a Registered Note initially issued in reliance on Rule 144A
to a U.S. person or a U.S. resident (as determined for purposes of the
Investment Company Act) that is not a Qualified Purchaser shall be null and void
and shall not be given effect for any purpose hereunder, and the Indenture
Trustee shall hold any funds conveyed by the intended transferee of such
definitive Registered Note in trust for the transferor and shall promptly
reconvey such funds to such Person in accordance with the written instructions
thereof delivered to the Indenture Trustee at its address listed in Section
15.03.
(k) Any purported transfer of a Note not in accordance with this Section 2.05
shall be null and void and shall not be given effect for any purpose hereunder.
(l) Nothing in this Section 2.05 shall be construed to limit any contractual
restrictions on transfers of Notes or interests therein that may apply to any
Person.
SECTION 2.06 Mutilated, Defaced, Destroyed, Lost or Stolen Notes. If (a) any
mutilated or defaced Note is surrendered to the Indenture Trustee or (b) (x) if
there shall be delivered to the Issuer or the Indenture Trustee evidence to its
reasonable satisfaction of the destruction, loss or theft of any Note, and (y)
there is delivered to the Issuer, the Indenture Trustee and the Insurer such
security or indemnity as may be required by them to save each of them and any
agent of any of them harmless, then, in the absence of notice to the Issuer and
the Indenture Trustee that such Note has been acquired by a protected purchaser,
the Issuer shall execute and, upon Issuer Request, the Authenticating Agent
shall authenticate and deliver, in lieu of any such mutilated, defaced,
destroyed, lost or stolen Note, a new Note, of like tenor (including the same
date of issuance) and equal principal amount, dated the date of its
authentication, bearing interest from the date to which interest has been paid
on the mutilated, defaced, destroyed, lost or stolen Note and bearing a number
not contemporaneously outstanding.
If, after delivery of such new Note, a bona fide purchaser of
the predecessor Note presents for payment, transfer or exchange such predecessor
Note, the Issuer, the Indenture Trustee, and the Insurer shall be entitled to
recover such new Note from the Person to whom it was delivered or any Person
taking therefrom, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer, the Indenture Trustee and the Insurer in connection
therewith. Furthermore, the Issuer, the Indenture Trustee and the Insurer shall
be able to recover from the Person to whom such new Note was delivered, any
amounts distributed by the Indenture Trustee to such Person in respect of such
new Note, including any loss, damage, cost or expenses incurred by the Issuer,
the Indenture Trustee and the Insurer in connection therewith.
In case any such mutilated, defaced, destroyed, lost or stolen
Note has become due and payable, the Issuer or Indenture Trustee, in their
discretion may, instead of issuing a new Note, pay such Note without requiring
surrender thereof except that any mutilated or defaced Note shall be
surrendered; provided, that security or indemnity is furnished as required
above.
Upon the issuance of any new Note under this Section 2.06, the
Issuer may require the payment by the Note Owner thereof of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Indenture
Trustee) connected therewith.
Every new Note issued pursuant to this Section 2.06 in lieu of
any mutilated, defaced, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer and such new Note shall
be entitled, subject to the second paragraph of this Section 2.06, to all the
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
All Notes surrendered to the Indenture Trustee under the terms
of this Section 2.06 shall be canceled by the Indenture Trustee.
The provisions of this Section 2.06 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, defaced, destroyed, lost or stolen
Notes.
SECTION 2.07 Payment of Principal and Interest; Principal and Interest Rights
Preserved. (a) General. The Notes shall accrue interest at the Note Rate and
such interest shall be payable on each Payment Date as specified therein.
Additional Interest shall also accrue on interest accrued and unpaid on the
Notes as of each Payment Date, from such Payment Date to the date such accrued
and unpaid interest is paid. For avoidance of doubt, payment of Additional
Interest shall not be guaranteed under the Policy.
(b) Payments of the applicable principal and interest will be made by the
Indenture Trustee, to the extent such funds are available in the Trust Estate
to, or to the order of, the relevant Holders of the Notes appearing on the Note
Register on the Record Date by transfer to the bank account of each such Holder
specified by such Holder in a written notice to the Indenture Trustee not less
than five (5) Business Days before the Record Date. If no such account is
specified by the Holder, such payment shall be made to the bank account
specified by such Holder in the last such notice received by the Indenture
Trustee or, if no such notice was given, by a banker's draft or order and posted
to such Holder at the address shown in the Note Register at the risk of such
Holder.
(c) Claims in respect of the Notes will become void unless made within a period
of three years from the due date of payment thereof.
(d) The Holders of Notes as of the Record Date in respect of a Payment Date
shall be entitled to the interest accrued and payable (including Additional
Interest) in accordance with the Priority of Payments and principal payable in
accordance with the Priority of Payments on such Payment Date. All such payments
that are mailed or wired and returned to the Indenture Trustee shall be held for
payment as herein provided at the Issuer's Office.
(e) All reductions in the Aggregate Outstanding Principal Amount of a Note (or
one or more predecessor Notes) effected by payments of installments of principal
made on any Payment Date shall be binding upon all future Holders of such Note
and of any Note issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, whether or not such payment is noted on such Note.
(f) No recourse shall be had for the payment of any amount owing in respect of
the Notes or any Transaction Document against any Officer, director, employee
member, manager, equity interest holder, beneficial owner, stockholder or
incorporator of the Issuer, the Noteholders, either Servicer, the Note Register,
the Indenture Trustee, either Initial Purchaser, the Insurer, their respective
Affiliates or any of their successors or assigns in their capacities as such. It
is further understood that the foregoing provision of this paragraph (f) shall
not limit the right of any Person to name the Issuer as a party defendant in any
Proceeding or in the exercise of any other remedy under the Notes or this
Indenture, so long as no judgment in the nature of a deficiency judgment or
seeking personal liability shall be asked for or (if obtained) enforced against
any of the Persons enumerated in the preceding sentence in their respective
capacity enumerated therein.
(g) Subject to the foregoing provisions of this Section 2.07, each Note
delivered under this Indenture and upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights of unpaid
interest and principal that were carried by such other Note.
(h) Notwithstanding any of the foregoing provisions with respect to payments of
principal of and interest on the Notes, if the Notes have become or been
declared due and payable following an Event of Default and such acceleration of
maturity and its consequences have not been rescinded and annulled and the
provisions of Section 5.02 are not applicable, then payments of principal of and
interest on such Notes shall be made in accordance with Section 10.03.
(i) [Reserved.]
(j) [Reserved.]
(k) Promptly following the date on which all principal of and interest on any
Notes have been paid in full and any such Notes have been surrendered to the
Indenture Trustee, the Indenture Trustee shall, upon written notice from the
Insurer of the amounts, if any, that the Insurer has paid in respect of the
Notes under the Policy or otherwise which has not been reimbursed to it, deliver
such surrendered Notes to the Insurer to the extent not previously canceled or
destroyed.
(l) Notwithstanding the provisions of this Section 2.07 to the contrary, if and
to the extent the Insurer shall have made any unreimbursed payments on the
Notes, the provisions of Section 2.13 shall apply with respect thereto.
SECTION 2.08 Persons Deemed Owners. The Issuer, the Insurer, and the Indenture
Trustee, shall treat the Person in whose name any Note is registered on the Note
Register as the owner of such Note on the applicable Record Date for the purpose
of receiving payments of principal of and interest on such Note and on any other
date for all other purposes whatsoever (whether or not such Note is overdue),
and neither the Issuer, the Insurer, or the Indenture Trustee shall be affected
by notice to the contrary.
SECTION 2.09 Cancellation. Notes surrendered for payment, exchange or redemption
may be delivered for cancellation to the Indenture Trustee at the Corporate
Trust Office. The Issuer may at any time deliver to the Indenture Trustee for
cancellation any Notes previously authenticated and delivered hereunder that the
Issuer may have acquired in any manner whatsoever, and all Notes so delivered
shall be promptly canceled in accordance with the written instructions of the
Issuer. No Notes shall be authenticated in lieu of or in exchange for any Notes
canceled as provided in this Section, except as expressly permitted by this
Indenture.
SECTION 2.10 Tax Purposes. The Issuer, each Holder and each beneficial owner of
a Note by acceptance of its Note or its interest in a Note shall be deemed to
have agreed to treat the Notes as debt of the Issuer for United States federal
income tax purposes.
SECTION 2.11 Withholding Tax. (a) The Issuer shall not be obligated to pay any
additional amounts to the Holders of the Notes as a result of any withholding or
deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges.
(b) Each Foreign Investor may deliver to each of the Issuer
and the Indenture Trustee two copies of either U.S. Internal Revenue Service
Form W-8BEN or Form W-8ECI (or any subsequent versions thereof), or, in the case
of a Foreign Investor claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest" a certificate representing that such Foreign Investor (i) does not
own, actually or constructively, 10% or more of the total combined voting power
of all classes of stock of Arby's entitled to vote within the meaning of Section
871(h)(3) of the Code and the regulations thereunder, is not a controlled
foreign corporation related, directly or indirectly, to Arby's through stock
ownership and is not a bank receiving interest described in Section 881(c)(3)(A)
of the Code, and (ii) two copies of Form W-8BEN or any subsequent versions
thereof properly completed and duly executed by such Foreign Investor claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments of interest by the Issuer under this Indenture and the other
Transaction Documents. In addition, each Foreign Investor shall deliver such
forms promptly upon the obsolescence, expiration or invalidity of any such form
previously delivered by such Foreign Investor. Each such Foreign Investor shall
promptly notify the Issuer and the Indenture Trustee at any time it determines
that it is no longer in a position to provide any previously delivered form to
the Issuer and the Indenture Trustee (or any other form of certification adopted
by the U.S. taxing authorities for such purpose). Any amount withheld shall
appropriately reflect any such forms that are timely delivered to the Issuer and
the Indenture Trustee.
SECTION 2.12 Actions Under the Policy. (a) Any payment made by the Insurer to
the Indenture Trustee for the benefit of the Noteholders (whether under the
Policy or otherwise) shall not be deemed to be a payment made by or on behalf of
the Issuer and shall not discharge the obligations of the Issuer with respect
thereto, and such amounts shall continue to be due and owing under the Notes
until paid by or on behalf of the Issuer. All such payments shall constitute
Reimbursements, repayable by the Issuer pursuant to Section 10.03.
(b) If payment by the Insurer is made in respect of interest on the Notes (other
than Additional Interest), the Insurer shall be deemed to have purchased the
right to receive interest on such Notes so paid from the Holder thereof to the
extent of such payment by the Insurer. If payment by the Insurer is made in
respect of principal on the Notes, the Insurer shall be deemed to have purchased
such Notes in an aggregate principal amount equal to the Aggregate Outstanding
Principal Amount of the Notes so paid by the Insurer. The Insurer shall be
deemed to be a Holder of such Notes during any period in which the Insurer may
exercise subrogation rights pursuant to Section 2.13.
(c) If, by 3:00 p.m. in the city in which the Corporate Trust Office is located
on the Accounting Date preceding any Payment Date, the amount then on deposit in
the Collection Account, after giving effect to transfers of funds pursuant to
Section 10.03(b) hereof from the Debt Service Reserve Account and the
Seasonality Coverage Account, is insufficient to pay the Insured Payments due on
such Payment Date, then, on or before 12:00 p.m. (New York time) on the Business
Day following such Accounting Date, the Indenture Trustee shall give written
notice to the Insurer of the amount of such deficiency, and thereupon submit a
Notice of Claim in respect of such amount, all in accordance with the terms of
this Indenture and in strict compliance with the terms of the Policy.
(d) In the event that the Indenture Trustee has received a certified copy of an
order of the appropriate court that any Insured Payment of principal of or
interest on a Note has been avoided in whole or in part as a preference payment
under applicable bankruptcy law, the Indenture Trustee shall so notify the
Insurer, shall comply with the provisions of the Policy to obtain payment by the
Insurer of such avoided payment, and shall, at the time it provides notice to
the Insurer, notify Holders of the Notes by mail that, in the event that any
Noteholder's Insured Payment is so recovered, such Noteholder will be entitled
to payment pursuant to the terms of the Policy. The Indenture Trustee shall
furnish to the Insurer or its Fiscal Agent (as defined in the Insurance
Agreement) the Indenture Trustee's records evidencing the payments of principal
of and interest on Notes, if any, which have been made by the Indenture Trustee
and subsequently recovered from Noteholders, and the dates on which such
payments were made. Pursuant to the terms of the Policy, the Insurer will make
such payment on behalf of the Noteholder to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy named in the Order (as defined in
the Policy) and not to the Indenture Trustee or any Noteholder directly (unless
a Noteholder has previously paid such payment to the receiver, conservator,
debtor-in-possession or Indenture Trustee in bankruptcy, in which case the
Insurer will make such payment to the Indenture Trustee for distribution to such
Noteholder upon proof of such payment reasonably satisfactory to the Insurer).
(e) The Indenture Trustee shall promptly notify the Insurer of any proceeding or
the institution of any action (of which the Indenture Trustee has actual
knowledge) seeking the avoidance as a preferential transfer under applicable
bankruptcy, insolvency, receivership, rehabilitation or similar law (a
"Preference Claim") of any distribution made with respect to the Notes. Each
Noteholder, by its purchase of Notes, and the Indenture Trustee hereby agree
that so long as an Insurer Default shall not have occurred and be continuing,
the Insurer may at any time during the continuation of any proceeding relating
to a Preference Claim direct all matters relating to such Preference Claim
including, without limitation, (i) the direction of any appeal of any order
relating to any Preference Claim and (ii) the posting of any surety, supersedes
or performance bond pending any such appeal at the expense of the Insurer, but
subject to reimbursement as provided in the Insurance Agreement. In addition,
and without limitation of the foregoing, as set forth in Section 2.13 hereof,
the Insurer shall be subrogated to, and each Noteholder and the Indenture
Trustee hereby delegate and assign, to the fullest extent permitted by law, the
rights of the Indenture Trustee and each Noteholder in the conduct of any
proceeding with respect to a Preference Claim, including, without limitation,
all rights of any party to an adversary proceeding with respect to any court
order issued in connection with any such Preference Claim.
SECTION 2.13 Subrogation Rights of the Insurer; Payment of Reimbursements. (a)
Upon the payment by the Insurer to the Indenture Trustee (or otherwise in
accordance with the Policy) for the benefit of the Noteholders, the Insurer,
without the need for further action on the part of the Insurer, the Issuer, the
Indenture Trustee or any other Person, shall be fully subrogated to the rights,
as applicable, of each Holder of the Notes to receive payments of principal of
and/or interest on the Notes from the Issuer in accordance with the Priority of
Payments, to the extent of the amounts paid by the Insurer under the Policy. In
addition, until the Insurer is fully reimbursed in accordance with this
Indenture and the Insurance Agreement for any amounts paid by the Insurer to the
Noteholders, the Insurer may exercise any option, vote, right, power or the like
with respect to the Notes to the extent that it has made payment of principal or
interest for the benefit of the Notes pursuant to the Policy. In furtherance of
the foregoing, the Indenture Trustee shall give effect to such subrogation by
distributing to the Insurer (as subrogee of the Holders of the Notes) the
amounts that otherwise would have been distributed by the Indenture Trustee to
such Holders in respect of principal and interest on the Notes to the extent of
any payments by the Insurer under the Policy. To evidence such subrogation to
the rights of the Noteholders, the Note Registrar shall note the Insurer's
rights as subrogee in the Note Register upon receipt from the Insurer of proof
of payment by the Insurer in respect of interest on or principal of the Notes.
In addition, and without limiting the foregoing, (a) if the Insurer makes any
payment under the Policy in respect of interest on the Notes, the Insurer shall
be fully subrogated to the rights of the Noteholders to receive such interest,
together with interest thereon at the Late Payment Rate (as defined in the
Insurance Agreement) under the Priority of Payments, and (b) if the Insurer
makes any payment under the Policy in respect of principal of the Notes, the
Insurer shall be fully subrogated to the rights of the Noteholders to receive
such principal, together with interest thereon at the Late Payment Rate (as
defined in the Insurance Agreement) under the Priority of Payments.
(b) The Insurer may, at its option, direct the allocation of any payment of
Reimbursements as provided in Section 10.03 as being the repayment of principal
and/or interest as to Reimbursements then owing as of such reimbursement or
payment date.
(c) Anything hereunder notwithstanding, it is understood and agreed that the
Insurer shall be entitled to payment of Reimbursement only at the times and as
provided in this Indenture and in the Insurance Agreement. All payments received
by the Insurer pursuant to the exercise of its rights under the Notes as
subrogee as described in subsection (a) above shall, solely by operation of the
definition of "Reimbursements," cause a corresponding reduction (on a
dollar-for-dollar basis) in the Reimbursements owing to the Insurer, and all
payments received by the Insurer in respect of Reimbursements as provided in
subsection (b) above shall cause a corresponding reduction (on a
dollar-for-dollar basis) in the amounts which may be owing to the Insurer
pursuant to such subrogation rights.
(d) The Insurer acknowledges and agrees that, notwithstanding any of the
provisions of this Indenture, the Insurance Agreement or otherwise, it shall
have recourse only to the Collateral. The Collateral having been fully applied
in accordance with the terms hereof, the Insurer shall not be entitled to take
any further actions against the Issuer to recover any sums due but still unpaid
hereunder or thereunder, all claims in respect of which shall be extinguished as
against the Issuer. In particular, the Insurer agrees not to take any action or
institute any proceeding against the Issuer (whether pursuant to its rights to
be reimbursed for Reimbursements or pursuant to its subrogation rights or
otherwise) which action or proceeding arises under any Insolvency Law applicable
to the Issuer or which would be likely to cause the Issuer to be subject to, or
to seek the protection of, any Insolvency Law applicable to the Issuer;
provided, that the Insurer may become a party to and participate in any
Proceeding or action under any Insolvency Law applicable to the Issuer that is
initiated by any Person that is not an Affiliate of the Insurer. For avoidance
of doubt, this Section 2.13(d) shall not include any actions taken against the
Servicer or any other Affiliate of the Servicer in respect of matters unrelated
to Reimbursement by the Issuer.
SECTION 2.14 Additional Covenant of the Insurer. The Insurer agrees to promptly
notify in writing, upon the Insurer's knowledge of such event, the Indenture
Trustee of the actual or prospective occurrence of any event which constitutes
or would constitute an Insurer Default.
SECTION 2.15 Policy Account. (a) As of the date hereof, the Indenture Trustee
has established in the name of the Indenture Trustee a separate special purpose
trust account with the corporate trust department of The Bank of New York in New
York (account no. 001621) (such account, the "Policy Account") for the benefit
of the Indenture Trustee on behalf of the Noteholders. The Policy Account shall
be maintained in a depository institution which at all times is rated at least
"P-1" by Moody's and "A-1" by Standard & Poor's and if such depository
institution at any time is rated below "P-1" by Moody's or "A-1" by Standard &
Poor's, the Policy Account shall be transferred from and established at another
depository institution meeting such criteria within one month of the occurrence
of such ratings downgrade. The Indenture Trustee shall have exclusive dominion
and control over and sole right of withdrawal of any amounts in the Policy
Account. Amounts in the Policy Account shall be invested at the written
direction of the American Servicer in Eligible Investments consisting solely of
obligations issued and guaranteed as to the full and timely payment of principal
and interest by the United States of America. All such Eligible Investments
shall have maturities of a period ending on the earlier of the next Payment Date
or the Optional Redemption Date or the Mandatory Redemption Date, as the case
may be. Amounts in the Policy Account shall be disbursed by the Indenture
Trustee in respect of the Notes in the same manner as principal and interest
payments are to be made with respect to the Notes hereunder. It shall not be
necessary for such payments to be made by checks or wire transfers separate from
the check or wire transfer used to pay Insured Payments with other funds
available to make such payments. However, the amount of any Insured Payment to
be paid from the Policy Account shall be noted as provided in subsection (c)
below.
(b) Any funds received by the Indenture Trustee from the Insurer as a result of
any claim under the Policy (together with any interest thereon) shall be
deposited by the Indenture Trustee in the Policy Account; the only permitted
withdrawal from or application of funds on deposit in, or otherwise to the
credit of, the Policy Account shall be to make the Insured Payments in respect
of the Notes (including Notes held for the Indenture Trustee's own account), in
the case of the Policy, due on the related Payment Date in respect of which such
funds are paid, to the extent such Insured Payments are not otherwise paid
pursuant to the Priority of Payments. All proceeds of the Policy, if any, must
be applied solely to the payment of Insured Payments of principal of and
interest on the Notes and such funds may not be applied to pay any costs or
expenses, liabilities or advances of the Indenture Trustee. Any funds remaining
in the Policy Account following a Payment Date shall promptly be remitted to the
Insurer; provided, that any remaining funds in the Policy Account in respect of
amounts due and unpaid on the Notes that remain undistributed as a result of
such funds being unclaimed shall be disposed of by the Indenture Trustee in
accordance with Section 3.03(c). Amounts payable under the Policy shall be
deemed discharged upon payment to the Indenture Trustee or to any other payee
thereof under the Policy or, if deposited by the Insurer into the Policy
Account, upon such deposit.
(c) The Indenture Trustee shall keep a complete and accurate record of all
funds, if any, remitted by the Insurer to the Indenture Trustee for deposit into
the Policy Account and the allocation of such funds to payment of interest on
and principal in respect of any Note. The Insurer shall have the right to
inspect such records at reasonable times upon one Business Day's prior written
notice to the Indenture Trustee or, if requested in writing by the Insurer, the
Indenture Trustee shall within two Business Days of such request, at the expense
of the Issuer, deliver copies of such records to the Insurer.
ARTICLE THREE
REPRESENTATIONS AND COVENANTS
SECTION 3.01 Payment of Principal and Interest. Subject to Section 2.07, the
Issuer shall duly and punctually pay the principal of and interest on the Notes
in accordance with the terms of the Notes and this Indenture.
SECTION 3.02 Maintenance of Office or Agency. The Issuer hereby appoints the
Indenture Trustee as the Issuer's agent where notices and demands to or upon the
Issuer in respect of the Notes or this Indenture may be served and where Notes
may be surrendered for registration of transfer or exchange. No notice or
demands issued by the Noteholders to the Indenture Trustee shall be effective
unless and until the Indenture Trustee forwards such notice or demand to the
Issuer.
The Issuer hereby appoints the Indenture Trustee as paying
agent for the payment of principal and interest on the Notes.
The Issuer or the Indenture Trustee may at any time and from
time to time vary or terminate the appointment of any such agent or appoint any
additional agents for any or all of such purposes, with notice to the Insurer of
such appointment. The Issuer shall give prompt written notice to the Indenture
Trustee, the Insurer, the Rating Agencies and the Noteholders of the appointment
or termination of any such agent and of the location and any change in the
location of any such office or agency.
If at any time the Issuer shall fail to maintain any such
required office or agency, or shall fail to furnish the Indenture Trustee with
the address thereof, presentations and surrenders may be made (subject to the
limitations described in the preceding paragraph) at and notices and demands may
be served on the Issuer at its registered office, and Notes may be presented and
surrendered for payment to the Indenture Trustee at its main office and the
Issuer hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands.
SECTION 3.03 Money for Note Payments to Be Held in Trust. (a) All payments of
amounts due and payable with respect to any Notes that are to be made from
amounts withdrawn from the Collection Account shall be made on behalf of the
Issuer by the Indenture Trustee in accordance with Section 2.07 hereof.
(b) The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order direct
the Indenture Trustee to pay to the Noteholders all sums held in trust by the
Indenture Trustee; and upon such payment by the Indenture Trustee, the Indenture
Trustee shall be released from all further liability with respect to such money.
(c) Any money held by the Indenture Trustee in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for 60 months after
such amount has become due and payable to such Noteholder shall be discharged
from such trust and paid to the Issuer (or to the Insurer, if such monies relate
to payments made by the Insurer into the Policy Account) and such Noteholder
shall thereafter look only to the Issuer (or Insurer, as the case may be, if
monies have been returned to the Insurer) for payment thereof (but only to the
extent of the amounts so paid to the Issuer or Insurer), and all liability of
the Indenture Trustee with respect to such trust money shall thereupon cease;
provided, however, that the Indenture Trustee, before making any such payment to
the Issuer or the Insurer (as the case may be), shall at the expense of the
Issuer cause notice to be given as provided in Section 12.04 hereof that such
money remains unclaimed and, after a date specified therein, which shall not be
less than 30 days from the date of such notice, any unclaimed balance of such
money then remaining will be repaid to the Issuer or the Insurer (is the case
may be), provided further that in the case of funds to be repaid to the Issuer,
all amounts due and owing to the Indenture Trustee shall have been paid. The
Indenture Trustee may also adopt and employ, at the expense of the Issuer, any
other reasonable means of notification of such release of payment. Upon
repayment of such money to the Issuer or the Insurer, such Noteholder shall, to
the extent of the money repaid to the Issuer or Insurer, as applicable, be an
unsecured general creditor of the Issuer or the Insurer, as the case may be.
SECTION 3.04 Existence of the Issuer. Subject to Section 3.09 and Article Eleven
of this Indenture, the Issuer will maintain in full force and effect its
existence as a statutory business trust organized under the laws of the State of
Delaware and will preserve, to the extent permitted by law, its qualification to
do business as a foreign entity in each jurisdiction in which such qualification
is or shall be necessary to protect the validity and enforceability of this
Indenture or the Notes or to avoid any Material Adverse Effect on any property
included in the Trust Estate.
SECTION 3.05 Protection of Trust Estate. The Issuer shall from time to time and
at its expense execute and deliver all such supplements and amendments hereto
and all such Financing Statements, continuation statements, instruments of
further assurance and other instruments, and shall take such other action as may
be necessary or advisable to:
(a)(i) maintain or preserve the Lien of this Indenture, and
the status of the Collateral as being free of Liens except for Liens
that do not exceed $100,000 in the aggregate;
(ii) perfect or protect the validity of any Grant made or to be made by this
Indenture; or
(iii) (iii) preserve title to the Trust Estate and the rights of the Secured
Parties in such Trust Estate against the claims of all persons and
parties; and
(b)(i) Grant more effectively all or any portion of the Trust
Estate;
(ii) carry out more effectively the purposes of maintaining or preserving
the Lien (and its status as being free of Liens) of this Indenture;
(iii) except as otherwise permitted under the Servicing Agreements, enforce
any instruments or property included in the Trust Estate;
(iv) defend title to the Trust Estate and the rights of the Secured
Parties in such Trust Estate against the claims of all persons and
parties; or
(v) pay any and all taxes levied or assessed upon all or any part of the
Trust Estate.
The Issuer or the Insurer (so long as no Insurer Default shall
have occurred and be continuing) may direct the Indenture Trustee in writing, at
the Issuer's expense, to execute any such Financing Statement, continuation
statement, instrument of further assurance or other instrument. The Issuer or
the Insurer, as applicable, hereby designates the Indenture Trustee as agent and
attorney-in-fact to execute any Financing Statement, continuation statement or
other instrument required pursuant to this Section 3.05. The Indenture Trustee
may execute any such Financing Statement, continuation statement or other
instrument only with the written consent of the Controlling Party.
On the Closing Date, the Issuer shall furnish to the Indenture
Trustee and the Insurer an Opinion of Counsel stating the necessary events upon
the occurrence of which the security interest of the Indenture Trustee in the
Trust Estate shall be a perfected security interest, free of Liens other than
the Lien of this Indenture and other Liens permitted hereunder and confirming
that such events have occurred and such security interest is so perfected and
unencumbered.
Within 50 days after the beginning of each calendar year,
commencing in 2002, the Issuer shall furnish to the Indenture Trustee and the
Insurer an Opinion of Counsel (which opinion subsequent to the first such
opinion so furnished may be delivered by counsel to the Issuer who may also be
an officer or employee of the Issuer) stating that the security interest of the
Indenture Trustee in the Trust Estate is a perfected security interest and that
the Trust Estate is free of Liens other than the Lien of this Indenture and
other Liens permitted hereunder.
SECTION 3.06 Performance of Obligations. Except as otherwise permitted by this
Indenture or as a Servicer is permitted under a Servicing Agreement, the Issuer
shall take no action that would release any Person from any of such Person's
covenants or obligations under any agreement, instrument or underlying
instrument included in the Trust Estate.
SECTION 3.07 Negative Covenants. (a) Except as otherwise permitted under this
Indenture or the Servicing Agreements, the Issuer shall not:
(i) sell, convey, transfer or grant any rights in respect of any of the
Collateral to any other Person, permit to exist any Lien with respect
to any of the Collateral except for certain Liens permitted under this
Indenture and the Lien of this Indenture, take any other action in
connection with any of the Collateral, including (but not limited to)
any amendment of, or any consent to any waiver of rights or to any
other action under or in respect of the Collateral;
(ii) [Reserved];
(iii) have any subsidiaries;
(iv) without the consent of the Controlling Party, such consent not to be
unreasonably withheld or delayed, amend, supplement or otherwise modify
any of the Transaction Documents or waive any breach or proposed breach
of any provision of the Transaction Documents or give any consent
thereunder;
(v) sell, transfer, exchange or otherwise grant any rights in or dispose
of any of its assets;
(vi) dissolve or liquidate;
(vii) [Reserved];
(viii) terminate the appointment of either of the Servicers;
(ix) permit the validity or effectiveness of the Notes or any Transaction
Document to be impaired, or permit the Lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged;
(x) take any affirmative action to permit the Lien of this Indenture not to
constitute a valid perfected security interest in the Trust Estate that
is of first priority as provided herein, or take any affirmative action
to permit the Trust Estate to be subject to any Lien thereon other than
the Lien of this Indenture and any other Liens expressly permitted
hereunder;
(xi) [Reserved];
(xii) have any employees;
(xiii) take any action, or fail to take any action, if such action or failure
to take action could reasonably be expected to interfere in any
material respect with the enforcement of any rights of the Insurer and
the Indenture Trustee under the agreements or instruments relating to
any of the Trust Estate, and the Issuer fails to cease such action or
take the action omitted, as necessary to avoid such potential effect
within 10 days of the Issuer's knowledge of such potential effect;
(xiv) (A) fail to pay any assessment, including any tax assessment,
charge or fee with respect to the Trust Estate in excess of $100,000
in the aggregate at any one time outstanding and the Issuer shall
not have remedied such failure to pay within 30 days of the Issuer's
knowledge of such failure, or (B) fail to defend any action known to
the Issuer, if, in any such case, such failure to pay or defend may
adversely affect the priority or enforceability of the Lien over the
Trust Estate created by this Indenture, provided that the Issuer
shall not be required to (1) pay any assessment, including any tax
assessment, charge or fee with respect to the Trust Estate if the
same is being contested in good faith, by appropriate proceedings
diligently pursued, so long as such nonpayment will not, under
applicable law, entitle any Person to place a Lien on or result in
the forfeiture of the Trust Estate or any material portion thereof or
(2) defend an action or actions known to the Issuer solely for civil
damages not in excess of an aggregate amount of $100,000 or
(xv) take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth above in
this Section 3.07.
(b) The Issuer will not act as a dealer in hedging or derivative instruments or
otherwise make a market in, or hold as inventory for purposes of resale to
customers, any securities or assets owned by the Issuer. For this purpose,
"dealer" means a merchant of securities with an established place of business
who in the ordinary course of business is engaged as a merchant in purchasing
securities and selling them to customers with a view to the gains and profits
that may be derived therefrom.
SECTION 3.08 Issuer May Not Consolidate, Etc., Without Consent. The Issuer shall
not consolidate or merge with or into any other Person, or convey or transfer
all or substantially all of its assets to any Person, or substitute a new debtor
for the Issuer without the consent of the Controlling Party, and unless:
(a) the formed, surviving, substitute or transferee Person (i) shall
be an entity organized and existing under the laws of the State of
Delaware or under the laws of any other jurisdiction approved by the
Controlling Party; provided, that the Issuer shall have delivered
to the Indenture Trustee an Opinion of Counsel to the effect
that after giving effect to such consolidation, merger, conveyance,
transfer or substitution neither the Trust Estate nor the surviving
Person shall be subject to income taxes or other applicable taxes
that would reduce in any manner the interest and principal currently
payable to the Noteholders or the amount of funds available therefor
and (ii) shall, if such Person is not the Issuer, expressly assume,
by an indenture supplemental hereto in form and substance satisfactory
to the Controlling Party, executed and delivered to the Indenture
Trustee, the due and punctual payment of the principal of and interest
on all Notes and the performance of every covenant and obligation
under this Indenture and the Transaction Documents to which the
Issuer is a party on the part of the Issuer to be performed or
observed herein or therein, all as provided herein;
(b) if the Notes are Outstanding and assigned a rating by the Rating
Agencies, the Rating Agencies and the Controlling Party shall be
notified at least 10 Business Days prior to such proposed
consolidation, merger, conveyance, transfer or substitution pursuant to
this Section 3.08 and the Rating Agencies shall have confirmed such
ratings to the Controlling Party after giving effect to the
consummation of such transaction and the Insurer Condition shall be
satisfied;
(c) any formed, surviving or transferee Person shall have agreed with the
Secured Parties (i) to Grant on behalf of the Secured Parties perfected
security interests in all the right, title and interest of such Person
in the Trust Estate, to the same extent as the Issuer has granted
perfected security interests to the Trust Estate to the Secured Parties
hereunder, free of any Liens, and (ii) not to consolidate or merge with
or into any other Person or substitute a new debtor for the Issuer or
convey or transfer the Trust Estate or its respective assets
substantially as an entirety to any other Person except in accordance
with the provisions of this Section 3.08 and with Article Eleven of
this Indenture;
(d) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
(e) the Issuer shall have delivered to the Indenture Trustee and the
Insurer an Officers' Certificate and one or more Opinions of Counsel,
as necessary or appropriate, each stating that such consolidation,
merger, conveyance or transfer and such supplemental indenture, if any,
comply with this Article Three and that all conditions precedent in
this Article Three, including the Grant of a valid and perfected
security interest in the Trust Estate free of any Liens, relating to
such transaction have been complied with and that this Indenture, the
supplemental indenture and the Transaction Documents to which the
Issuer is a party constitute the legal, valid and binding obligations
of the surviving transferee or Person subject to customary assumptions,
qualifications and exceptions.
SECTION 3.09 Successor Substituted. Upon any consolidation or merger in which
the Issuer is not the surviving corporation, or conveyance or transfer of all or
substantially all of the properties and assets of the Issuer, in each case in
accordance with Section 3.08 hereof or Article Eleven of this Indenture, the
Person with which such consolidation or merger is consummated, or to which such
conveyance or transfer is made, shall succeed to, and be substituted for, and
may exercise every right and power of, the Issuer under this Indenture with the
same effect as if such Person had been named as the Issuer herein and shall
expressly assume, by an indenture supplemental hereto in form and substance
satisfactory to the Controlling Party, executed and delivered to the Indenture
Trustee, the due and punctual payment of the principal of and interest on all
Notes and the performance of every covenant and obligation under this Indenture
and the Transaction Documents to which the Issuer is a party on the part of the
Issuer to be performed or observed herein or therein, all as provided herein. In
the event of any such consolidation, merger, conveyance or transfer, the Person
named as the "Issuer" in the first paragraph of this instrument or any successor
which shall theretofore have become such in the manner prescribed in this
Article Three may be dissolved, wound up and liquidated at any time thereafter,
and such Person shall be released from its liabilities as obligor and maker on
all the Notes and from its obligations under this Indenture.
SECTION 3.10 No Other Business. The Issuer shall not engage in any business or
activity other than those transactions contemplated by the terms hereof or the
other Transaction Documents, including (a) issuing and selling the Notes and
acquiring, owning, preserving, enforcing, holding and pledging the Collateral
and any other instrument or property included in the Trust Estate in connection
therewith, (b) acting as franchisor of the Arby's(R) branded system in the
United States and Canada; and (c) engaging in any other activities which are
necessary or appropriate to accomplish the foregoing.
SECTION 3.11 Indebtedness. Except for Permitted Indebtedness, the Issuer shall
not incur or have outstanding any Indebtedness, or assume or guarantee any
Indebtedness (excluding incurring or having outstanding any indebtedness arising
from any tax liabilities) of any Person other than pursuant to this Indenture or
the other Transaction Documents.
SECTION 3.12 Representations and Warranties. The Issuer hereby represents,
warrants and agrees as of the date hereof as follows:
(a) The Issuer is a statutory business trust duly formed and validly
existing under the laws of the State of Delaware and has all requisite
power and authority to own its properties and conduct its business as
such properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under
this Indenture and any other document or instrument (including the
Notes) delivered by the Issuer pursuant hereto or in connection
herewith;
(b) The execution and delivery of this Indenture and each Transaction
Document to which the Issuer is a party and the consummation of the
transactions provided for in this Indenture and each Transaction
Document to which the Issuer is a party to have been duly authorized by
the Issuer by all necessary action on the part of the Issuer;
(c) The execution and delivery of this Indenture and each Transaction
Document to which the Issuer is a party, the performance of the
transactions contemplated by this Indenture and each Transaction
Document to which the Issuer is a party, and the fulfillment of the
terms hereof and thereof applicable to the Issuer, will (A) not
conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time or both) a
default under, (x) the Issuer's organizational documents or (y) any
indenture, contract, agreement, mortgage, deed or trust or other
instrument to which the Issuer is a party or by which it or its assets
is bound and (B) not result in or require the creation of any Lien on
any of the Issuer's properties, except for Liens permitted under this
Indenture (or the Lien of this Indenture);
(d) There are no Proceedings or investigations pending or, to the knowledge
of the Issuer, threatened against the Issuer, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality (A) questioning the validity of this Indenture or any
Transaction Documents to which the Issuer is a party to, (B) seeking to
prevent the consummation of any of the transactions contemplated by
this Indenture or any Transaction Documents to which the Issuer is a
party, (C) seeking any determination or ruling that would, individually
or in the aggregate, materially and adversely affect the
performance by the Issuer of its obligations under this Indenture
or any Transaction Documents to which the Issuer is a party or
(D) seeking any determination or ruling that would, individually or
in the aggregate, materially and adversely affect the validity or
enforcement of this Indenture or any Transaction Documents to which
the Issuer is a party;
(e) Except for filings of Financing Statements, filings with the Patent and
Trademark Office and filings required under state franchise laws and as
otherwise disclosed in the Offering Circular, all authorizations,
consents, orders and approvals of, and notices to and filings and
recordings and registrations by the Issuer with, any court or other
governmental authority and all other governmental actions necessary to
be taken by the Issuer in connection with the execution and delivery of
this Indenture and any Transaction Documents to which the Issuer is a
party and the performance of the material transactions contemplated by
this Indenture and any Transaction Documents to which the Issuer is a
party have been obtained, made or taken, as the case may be, and are in
full force and effect;
(f) Each of this Indenture and each Transaction Document to which the
Issuer is a party constitutes a legal, valid and binding obligation of
the Issuer enforceable against the Issuer in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights
generally (including, without limitation, fraudulent conveyance laws)
and by general principles of equity including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or
at law;
(g) The Issuer is the owner of all the Collateral, and (to the best
knowledge of the Officers of the Issuer) there are no Liens with
respect to, no Liens upon, or any restrictions on the transferability
of (other than those restrictions included in the terms of such
instruments), the Collateral;
(h) The Issuer has no subsidiaries;
(i) The Issuer is not required in connection with the sale of the Notes to
register or qualify the Notes under the Securities Act or, any
applicable United States state securities law;
(j) The Issuer is not an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in the Investment
Company Act;
(k) The Issuer is not required in connection with the sale of the Notes to
qualify this Indenture under the United States Trust Indenture Act of
1939, as amended;
(l) The Notes satisfy the requirements set forth in Rule 144A(d)(3) under
the Securities Act;
(m) [Reserved];
(n) The Notes shall be "debt securities" within the meaning of Rule 902 of
the Securities Act;
(o) The Issuer is not (i) in violation of its organizational documents or
(ii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement to which it
is a party or by which it may be bound, except where such default would
not have a Material Adverse Effect on the Issuer, the Arby's IP or the
Notes, and it is not in violation of any law, order, rule, regulation,
writ, injunction, judgment or decree of any Governmental Authority
having jurisdiction over it or over its properties, except where such
violation would not have a Material Adverse Effect on the Issuer, the
Arby's IP or the Notes; and
(s) no payments to be made to the Issuer under any of the
Franchise Assets will be subject to any value-added tax or other
similar tax (other than Canadian GST or HST).
SECTION 3.13 Note Interest Amount; Note Principal Amount. (a) On each Accounting
Date, the Issuer shall (or shall cause the American Servicer to) determine at
the Note Rate the amount of interest for the applicable Accrual Period payable
in respect of the Aggregate Outstanding Principal Amount of each Note (the "Note
Interest Amount") (rounded to the nearest cent, with half a cent being rounded
upward). Any Note Interest Amount due on any Payment Date but not paid on such
Payment Date shall bear interest at the Note Rate until paid in full.
(b) On each Accounting Date, the Issuer shall cause the
American Servicer to determine the amount of the Principal Distribution payable
for the related Payment Date (the "Note Principal Amount") (rounded to the
nearest cent, with half a cent being rounded upward); provided, however, that if
the American Servicer is unable to determine the Note Principal Amount in
respect of the related Collection Period prior to 3:00 p.m. on such Accounting
Date, the Issuer shall cause the American Servicer to determine the Note
Principal Amount for the Notes as soon as practicable following such Accounting
Date, but no later than 12:00 noon on the Business Day following such Accounting
Date.
SECTION 3.14 Affirmative Covenants. So long as any of the Notes remain
Outstanding and the Term of the Policy shall not have expired, the Issuer shall:
(a) do or cause to be done all things necessary to enable it to comply
with all applicable legal and accounting rules and regulations;
(b) keep proper books of account and records and, upon the request of the
Controlling Party, appoint independent public accountants
(reasonably acceptable to the Insurer) to audit the books of account
and financial statements of the Issuer; and, upon request of the
Controlling Party, to prepare annual audited balance sheets,
profit and loss statements and retained earnings statements of the
Issuer within six months after the end of each fiscal year (and a
copy of each such audited financial statement shall be provided to
each of the Indenture Trustee, the Insurer, Moody's and Standard &
Poor's, and allow the Indenture Trustee, the Insurer and any Person
appointed by either of them, access to the books of account and
records of the Issuer at all reasonable times upon reasonable notice
during normal business hours, and permit the Indenture Trustee, the
Insurer and any Person appointed by either of them to discuss the
affairs, finances and accounts of the Issuer with any of its officers,
directors and employees and to discuss the affairs, finances and
accounts of the Issuer with the Issuer's independent public accountants
(to the extent such accountants have been appointed);
(c) [Reserved];
(d) give notice in writing to the Indenture Trustee, the Servicer and the
Insurer promptly upon becoming aware of the occurrence of any
circumstance that might reasonably be expected to constitute an Event
of Default or Default, and such notice shall contain a description of
the facts, circumstances or events that might reasonably be expected to
constitute such Event of Default or Default, provided that in
connection with such notice, the Issuer may disclaim in good faith any
admission that such circumstance does constitute an Event of Default or
Default;
(e) so far as permitted by law, at all times give to the Indenture Trustee
such information as it shall reasonably require for the purpose of the
discharge of the duties, powers, trusts, authorities and discretions
vested in it by this Indenture;
(f) take all reasonable actions necessary so as to be exempt from
registration under the Investment Company Act;
(g) take all reasonable actions necessary so as to exempt from
registration the sale of Notes under the Securities Act, or under
any applicable securities laws;
(h) maintain all licenses, permits, charters and registrations which are
material to the conduct of its business;
(i) deliver to the Indenture Trustee and, so long as any Notes are
Outstanding, the Insurer, (x) annually and (y) within 10 days after any
reasonable request by the Indenture Trustee or the Insurer, an
Officer's Certificate of the Issuer to the effect that, having made all
reasonable inquiries, to the best of the knowledge, information and
belief of the Issuer there did not exist, as at a date not more than
five days prior to the date of the certificate nor had there existed at
any time prior thereto since the date hereof or the date of the last
such certificate (if any), any Event of Default or any Default or, if
such an Event of Default or Default did then exist or had existed,
specifying the same;
(j) deliver to the Indenture Trustee and the Insurer as soon as practicable
prior to the date of delivery, a copy of the form of each notice to be
delivered to the Holders of the Notes (such notice to be in a form
approved by the Indenture Trustee and the Insurer (which approval shall
not be unreasonably withheld or delayed));
(k) file all income tax returns of any jurisdiction which, to the knowledge
of the officers of the Issuer, are required to be filed and pay all
taxes as shown on said returns, if and to the extent such taxes become
due; provided, however, the Issuer shall not be required to pay or
discharge or cause to be paid or discharged any such taxes whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings so long as (i) there shall be no material risk
of forfeiture of property in the Trust Estate and (ii) the Issuer
maintains adequate reserves for the payment of contested taxes;
(l) in addition to any other notices, certificates or information provided
pursuant to this Indenture, promptly inform the Indenture Trustee and
the Insurer in writing of the following:
(i) the commencement of any rulemaking or disciplinary Proceeding or the
promulgation of any proposed or final rule (other than a rule or
proceeding which has general applicability to Persons including the
Issuer) which would have a Material Adverse Effect;
(ii) the commencement of any Proceedings by or against the Issuer in any
court of competent jurisdiction or before any governmental body or
agency, or before any arbitration board, or the threat of any such
proceedings, which might reasonably be expected to have a Material
Adverse Effect on the Issuer or on the Issuer's ability to comply with
the Notes or perform its obligations under any provision of the
Transaction Documents to which it is a party; and
(iii) the receipt of notice from any Governmental Authority having authority
over the conduct of the Issuer's business that (A) the Issuer is being
placed under regulatory supervision, (B) any license, permit, charter,
membership or registration relating to the conduct of the Issuer's
business is to be suspended or revoked, and such suspension or
revocation could reasonably be expected to have a Material Adverse
Effect on the Issuer, or (C) the Issuer is to cease and desist any
practice, procedure or policy employed by the Issuer in the conduct of
its business, and such cessation would have a Material Adverse Effect
upon the Issuer;
(m) maintain corporate records and books of account separate from any
Person which owns more than 50% of its equity securities;
(n) [Reserved];
(o) so long as any Notes are Outstanding, deliver to each Rating Agency by
which the Notes are for the time being rated such information as such
Rating Agency may request and which is material in maintaining its
surveillance of the transactions contemplated by the Transaction
Documents;
(p) generally pay its debts as they become due;
(q) [Reserved];
(r) [Reserved];
(s) apply its funds (other than any transaction fees paid to it in respect
of the Notes) towards the payment of amounts due under the Notes and
towards the other sums payable by the Issuer under the Transaction
Documents in connection with the transactions contemplated therein and
for no other purpose; provided, however, Issuer shall be permitted to
apply its funds to amounts payable to the Certificateholder pursuant to
Section 10.03(xi) hereof;
(t) no later than 30 Business Days prior to the optional redemption of the
Notes in whole pursuant to this Indenture or otherwise, furnish to the
Insurer a notice of such redemption, and, upon a redemption or other
payment of all of the Notes and the expiration of the Term of the
Policy, to surrender the Policy to the Insurer for cancellation;
(u) (A) act and conduct its business solely in its own name through the
Issuer Trustee or through other agents selected in accordance with
the Trust Agreement, including, without limitation, its Officers
and the Servicers; (B) maintain separately the Issuer's funds and
assets from those of any Certificateholder and any Affiliates of the
Certificateholder, and such funds and assets shall not be commingled
with the funds and assets of any other Person; (C) maintain complete
and correct books and records of account and minutes of the proceedings
of the Issuer, separate from the books and records of any other Person
or entity; (D) use stationery, invoices, checks and other
business forms of the Issuer and not those of any Certificateholder
or any Affiliate of a Certificateholder, and shall not have the
appearance (x) of conducting business on behalf of any
Certificateholder or any Affiliate of a Certificateholder or (y) that
the assets of the Issuer are available to pay the creditors of any
Certificateholder or any Affiliate of a Certificateholder; (E) except
as otherwise specified in the Trust Agreement, pay all of Issuer's
liabilities out of its own funds, provided that Arby's shall be
liable for the initial organizational expenses of the Issuer, (F)
not hold itself out as being liable for the debts of any
Certificateholder or any Affiliate of a Certificateholder; (G) not
engage in any transaction with any Certificateholder or any Affiliate
of a Certificateholder, except as contemplated by the Final
Contribution Agreement or either Servicing Agreement, and otherwise
as required, or specifically permitted by this Agreement or the Trust
Agreement; provided, however, that any such transaction must be
commercially reasonable on terms similar to those available in
an arm's length transaction; (H) not incur any debt other than as
contemplated by the Trust Agreement or this Indenture; (I) maintain
separate financial statements showing its assets and liabilities
separate and apart from those of any other Person; (J) not guarantee
or become obligated for the debts of any other Person or hold out
is credit as being available to satisfy the obligations of others'
(K) allocate fairly and reasonably any overhead expenses that are
shared with Affiliates, including the payments for office space; (L)
hold itself out as a separate entity, correct any known
misunderstandings regarding its separate identity, and not identify
itself as a division of any other Person; (M) maintain adequate
capital in light of its contemplated business operations; (N) while
any amounts under this Indenture remain outstanding, not dissolve,
liquidate, merge, consolidate or sell substantially all of its
assets, except in accordance with the Section 3.08 and Article Eleven
hereof, (O) maintain bank accounts separate from those of any other
Person and not permit any Affiliate independent access to such bank
accounts; (P) not acquire obligations or securities of any
Certificateholder or any Affiliate of a Certificateholder; (Q)
observe all Delaware statutory business trust formalities; (R) not
pledge its assets for the benefit of any other Person or make loans
or advances to any Person other than as contemplated by the Trust
Agreement or this Indenture; and (S) cause the Officers of the
Issuer and its agents, including the Servicers, to act at all
times with respect to the Issuer consistently with, and in
furtherance of, the foregoing and in the best interests of the
Issuer (subject, with respect to the Servicers, to their respective
rights under the terms of the Servicing Agreements);
(v) comply with all directions of the Controlling Party properly given in
accordance with the terms of this Indenture;
(w) if requested, to use its best efforts to permit the Notes to be
designated PORTAL securities in accordance with the rules
and regulations adopted by the National Association of Securities
Dealers, Inc. relating to trading in the PORTAL market; and
(x) permit compliance with Rule 144A under the Securities Act in connection
with the sale of the Notes, and furnish upon request of a holder of a
Note to such holder and a prospective purchaser designated by such
holder the information required to be delivered under Rule 144A(d)(4)
under the Securities Act if at the time of the request the Issuer is
not a reporting company under Section 13 or Section 15(d) of the United
States Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or exempt from reporting pursuant to Rule 12g3-2(b) under the
Exchange Act;
(y) at the request of the Insurer, engage the Industry Consultant
(satisfactory to the Insurer) at the expense of the Issuer that will
monitor for the benefit of the Insurer the performance of each Servicer
in accordance with the terms of the Industry Consultant Letter and pay
its fees in accordance with the fee letter related thereto;
(z) engage the SPE Administrator (satisfactory to the Insurer) at the
expense of the Issuer that will provide certain services in accordance
with the SPE Administrator Letter and pay its fees in accordance with
the SPE Administrator Letter;
(aa) enforce the obligations of the Affiliates of the Issuer under and
pursuant to the Transaction Documents; and
(bb) (x) apply all Capital Contributions received from XxxXx to Available
Funds for distribution in accordance with the Priority of Payments or
in order to consummate an optional redemption in accordance with
Section 9.01 hereof, in whole or in part, and (y) with the consent of
the Controlling Party, such consent not to be unreasonably withheld or
delayed, include Capital Contributions in the calculation of Net Cash
Flow for the purpose of calculating the Debt Service Coverage Ratio.
SECTION 3.15 Further Assurances. (a) The Issuer or the Indenture Trustee at the
direction of the Issuer, shall execute and deliver, or cause to be executed and
delivered, all such additional instruments, and do, or cause to be done, all
such additional acts as (i) may be necessary or proper, consistent with the
Granting Clauses, to carry out the purposes of this Indenture and to make
subject to the Lien hereof any property intended so to be subject, including in
the event of any change in applicable law or regulations, (ii) may be necessary
or proper to transfer to any successor Indenture Trustee or co-Indenture Trustee
the estate, powers, instruments and funds held in trust hereunder and to confirm
the Lien of this Indenture, or (iii) the Indenture Trustee or the Insurer may
reasonably request. In addition, the Issuer shall (at the direction or with the
consent of the Insurer, so long as the Insurer is the Controlling Party), take
all actions, and shall direct the Indenture Trustee in writing to take all
actions as shall be specified to the Issuer, necessary to preserve and protect
the security interest in the Collateral created hereunder, free of any Liens,
including but not limited to the removal and transfer of any such Collateral
from any existing location or jurisdiction to another location or jurisdiction
so as to prevent the impairment of the security interest in such Collateral
created by this Indenture.
(b) [Reserved.]
(c) All oral and written communications made by the Issuer or by any Person on
behalf of the Issuer, including, without limitation, letters, invoices, purchase
orders, contracts, statements, loan applications, and all notices, certificates
or information required to be delivered or communicated pursuant to this
Indenture, shall be made or delivered by the Issuer or by any such Person on
behalf of the Issuer.
(d) The Indenture Trustee shall cooperate in all respects with any reasonable
written request by the Insurer to preserve or enforce the Insurer's rights and
interests under this Indenture.
SECTION 3.16 Financial Covenants. (a) If funds in the Debt Service Reserve
Account are less than the Minimum Debt Service Reserve Amount, then all
investment income earned on funds in the Debt Service Reserve Account shall be
retained in the Debt Service Reserve Account until the funds in the Debt Service
Reserve Account are equal to or greater than the Minimum Debt Service Reserve
Amount. If funds in the Debt Service Reserve Account are greater than or equal
to the Minimum Debt Service Reserve Amount, then all investment income earned on
funds in the Debt Service Reserve Account, shall be released to the Collection
Account for distribution as Available Funds in accordance with the Priority of
Payments.
(b) (i) On each Payment Date, in accordance with the Priority of Payments, the
Cash Trap Reserve Amount shall be deposited into the Debt Service Reserve
Account.
(ii) If a Cash Trap Event has occurred but is no longer
continuing, then, on the Payment Dates relating to each of the four Collection
Periods commencing with the Collection Period related to the Accounting Date on
which the Cash Trap Event ceases, 25% of the Cash Trap Excess existing as of the
Accounting Date on which such cessation occurred shall be deemed to be Available
Funds and the Issuer shall release such amount to the Collection Account for
distribution in accordance with the Priority of Payments. The Issuer shall cease
any such release of the Cash Trap Excess upon the occurrence of any subsequent
Cash Trap Event, in which case the Issuer shall make any subsequent release of
Cash Trap Excess only upon the cessation of such subsequent Cash Trap Event and
only in the amount (on each of the four applicable Payment Dates) of 25%, of the
Cash Trap Excess existing as of the date of the cessation of such subsequent
Cash Trap Event.
(c) So long as any Notes are Outstanding, on each Payment Date
in each of December, January and February of each year, the Issuer shall deposit
the Seasonality Deposit Amount into the Seasonality Coverage Account. On each
Accounting Date in March, April and May, the Issuer shall reduce the Seasonality
Coverage Balance by the Seasonality Release Amount. The Seasonality Release
Amount shall be deemed to be Available Funds on such Accounting Date for
distribution in accordance with the Priority of Payments.
(d) So long as any Notes are Outstanding, the Issuer shall
maintain a Royalty Rate of not less than 4% for all new Franchise Agreements
entered into on and after the Closing Date and the Issuer shall maintain the
Royalty Rate as of the Cut-Off Date for each Franchise Agreement existing as of
the Cut-Off Date and any renewal thereof (subject to an exception for 20
Franchise Agreements per year and 50 Franchise Agreements in the aggregate at
any one time in effect; provided, that with the prior consent of the Controlling
Party, such consent not to be unreasonably withheld or delayed, such exception
may be modified or amended).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture. (a) This Indenture shall
cease to be of further effect with respect to the Notes except as to (1) rights
of registration of transfer and exchange, (2) substitution of mutilated,
destroyed, defaced, lost or stolen Notes, (3) rights of Noteholders to receive
payments of principal thereof and interest thereon and the Insurer to receive
any reimbursement or other amounts due or to become due hereunder or under the
Insurance Agreement that have not been previously paid, (4) the rights,
obligations and immunities of the Indenture Trustee hereunder including, without
limitation, the rights to compensation, reimbursement and indemnification and
(5) the rights of Noteholders as beneficiaries hereof with respect to the
property deposited with the Indenture Trustee and payable to all or any of them,
and all Collateral, rights and interest hereby conveyed or assigned or pledged
and not disposed of previously pursuant to Section 5.06 then remaining, if any,
shall revert to the Issuer, and the estate, right, title and interest of the
Indenture Trustee and the Secured Parties therein shall thereupon cease,
terminate and become void, and the Indenture Trustee, on demand of and at the
expense of the Issuer, shall execute instruments in form and substance
reasonably satisfactory to the Issuer and the Indenture Trustee acknowledging
satisfaction and discharge of this Indenture and releasing the Collateral from
the Lien of this Indenture, and execute and deliver such other instruments or
documents as may be reasonably requested by the Issuer or the American Servicer
to give effect to such release, and shall convey, assign and transfer, or cause
to be conveyed, assigned or transferred, and shall deliver or cause to be
delivered to the Issuer, all such remaining Collateral, including money, then
held by the Indenture Trustee or any co-trustee, other than moneys deposited
with the Indenture Trustee pursuant to clause (ii) below, when:
(i) either
(A) all Notes theretofore authenticated and delivered (other than
(x) Notes which have been destroyed, lost or stolen and which
have been paid or replaced as provided in Section 2.06 hereof,
and (y) Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.03
hereof) have been delivered to the Indenture Trustee for
cancellation; or
(B) all Notes not theretofore delivered to the Indenture Trustee for
cancellation (x) have become due and payable, (y) will become due
and payable at the Legal Final Payment Date within one year or (z) are
to be called for redemption within one year under arrangements
satisfactory to the Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name and at the expense of
the Issuer, and there has been irrevocably deposited with the
Indenture Trustee, in trust for such purpose, cash or Eligible
Investments in a principal amount sufficient to pay and discharge the
entire indebtedness on such Notes on the earlier of a redemption
date or the Legal Final Payment Date, whichever is applicable, and
the Issuer has delivered an Accountants' Certificate to the Indenture
Trustee confirming such calculations;
(ii) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer and no other amounts will become due
and payable by the Issuer;
(iii) the Issuer has delivered to the Indenture Trustee and the Insurer an
Officers' Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to the Notes have been
complied with; and
(iv) the Policy has expired or been terminated or canceled by the Indenture
Trustee in accordance with its terms and the Indenture Trustee has
returned the Policy to the Insurer; provided, however, the Indenture
Trustee shall be required to cancel the Policy if all amounts under the
Notes and the Insurance Agreement have been paid and the Insurer shall
have confirmed in writing that the Issuer has provided an Opinion of
Counsel, or such other adequate assurances as may be required by the
Insurer in its sole judgment, to the Insurer that the discharge of the
Indenture will not subject the Insurer to a risk of preference or
recapture on amounts previously paid by the Issuer to discharge the
Notes.
The foregoing provision notwithstanding, amounts owing in
respect of Notes which shall have been paid, or for which provision shall have
been made, by a payment from the Insurer pursuant to the Policy shall continue
to be Outstanding under this Indenture, and the conditions set forth in this
Section 4.01 shall not be satisfied, and the Insurer shall become the Holder of
such Notes for all purposes of this Indenture; provided, that if the Issuer
shall make payment to the Insurer of all Reimbursements due hereunder and under
the Insurance Agreement in respect of any payments by the Insurer of principal
of and interest on the Notes, together with any interest due under the Insurance
Agreement thereon, the obligation of the Issuer with respect to payment of such
Notes shall cease to the extent of such Reimbursement, and if such Reimbursement
shall be sufficient to pay the principal of and interest due on such Notes, such
Notes shall no longer be deemed Outstanding for purposes of this Indenture.
(b) Notwithstanding the satisfaction and discharge of this Indenture, the rights
and obligations of the Issuer, the Noteholders and the Secured Parties under
Sections 2.07, 2.13(d), 3.01, 3.03(c), 3.14(v), 4.02, 5.06(e), 6.06, 6.07(e) and
10.03 hereof shall survive such satisfaction and discharge.
SECTION 4.02 Application of Trust Money. All monies, Cash or Eligible
Investments deposited with the Indenture Trustee pursuant to Section 4.01 hereof
shall be irrevocably held in trust by the Indenture Trustee and applied by it,
in accordance with the provisions of the Notes and this Indenture and in the
Priority of Payments set forth in Section 10.03, to the payment to the Person or
Persons entitled thereto of the principal and interest for whose payment such
monies, Cash and Eligible Investments have been deposited with the Indenture
Trustee, and such monies, Cash and Eligible Investments shall be held in a
segregated trust account identified as being held in trust for the benefit of
the Noteholders and the Secured Parties.
SECTION 4.03 Reinstatement. If the Indenture Trustee is unable to apply any cash
or Eligible Investments in accordance with Section 4.01 hereof by reason of any
Proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Issuer's obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 4.01 hereof
until such time as the Indenture Trustee is permitted to apply all such cash or
Eligible Investments in accordance with Section 4.01 hereof; provided, however,
that if the Issuer has made any payment of principal of or interest on any Notes
because of the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the holders who received such cash or Eligible Investments to
receive such payment from the Notes held by the Indenture Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01 Events of Default. Any of the following shall be an event
constituting a default under this Indenture (an "Event of Default") with respect
to the Notes then Outstanding, or any of them:
(a) a default shall occur in the payment of principal of the Notes on the
Legal Final Payment Date (without giving effect to payments made with
the proceeds of a drawing under the Policy);
(b) a default shall occur in the payment of any interest due in respect of
the Notes; provided, however, if such default is due solely to
administrative error and funds are otherwise available therefor in the
Collection Account and without taking into account the availability of
the Policy, then such default shall have occurred and continued for one
(1) full Business Day;
(c) the Issuer fails to perform or comply with any of the covenants
contained in Sections 3.04, 3.05(a), 3.07, 3.08, 3.10, 3.11,
3.14(u)(B), (H), (J), (N), (O), (R), 3.14(bb) or 3.14(v) hereof;
(d) the occurrence of a Servicer Termination Event under the American
Servicing Agreement (other than a Servicer Termination Event that
occurs solely with respect to the Debt Service Coverage Ratio);
(e) the occurrence of a Servicer Termination Event under the Canadian
Servicing Agreement (other than a Servicer Termination Event that
occurs solely with respect to the Debt Service Coverage Ratio);
provided that a Servicer Termination Event under the Canadian Servicing
Agreement shall only be an Event of Default if, at such time the
Servicer Termination Event occurs and is continuing, Collections from
Restaurants located in Canada exceed 10% of the Collections from all
Restaurants located in the United States and Canada calculated as of
the last preceding Accounting Date;
(f) the Issuer fails to perform or observe any of its other obligations
under this Indenture not covered by clause (c) above and such failure
continues for a period ending on the earlier to occur of 30 consecutive
days after the Issuer shall have become aware of such failure or after
the Issuer shall have received notice of such failure; provided,
however, so long as the Issuer is diligently attempting to cure such
failure, such cure period shall be extended by an additional period as
may be required but in no event more than an additional 30 days;
(g) an effective resolution is passed by the Issuer for the winding up or
liquidation of the Issuer, except a winding up for the purpose of a
merger, reconstruction or amalgamation in accordance with Section 3.08,
the terms of which winding up or liquidation have previously been
approved in writing, by the Controlling Party;
(h) any petition is filed, or any case or proceeding is commenced, against
the Issuer under the Bankruptcy Code or any other similar applicable
federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization, and such filing, case or
proceeding has not been dismissed within 60 days after such filing or
commencement;
(i) the institution by the Issuer of Proceedings to be adjudicated as
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency Proceedings against it, or the filing by it of
a petition or answer or consent seeking reorganization relief under the
Bankruptcy Code or any other similar applicable federal or state law,
or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) of the Issuer or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of action by the Issuer in furtherance of any such action;
(j) the Issuer shall be required to register as an "investment company"
under the Investment Company Act;
(k) (i) (A) Arby's shall fail to perform or comply with any of its
covenants contained in subsection (c)(iv) of Section 4.5 of
the American Servicing Agreement; (B) either Holdings or XxxXx
shall fail to perform or comply with any of the limitations on its
activities contained in subsections (A) (solely as such provision
relates to Bank Accounts), (E), (K), (R) and (S) of Section 9(j)(iv)
of its respective LLC Agreement; or (C) IP Holder shall fail to
perform or comply with any of the operating standards contained in
subsections (b), (h), (k), (o), (q) and (t) of Section 2.9 of the IP
Holder Trust Agreement; or (ii) (A) either Holdings or XxxXx shall
fail to perform or comply with any of the limitations on its
activities contained in Section 9(j)(iv) of its respective LLC
Agreement not specified in (i)(B) above; or (B) IP Holder shall fail
to perform or comply with any of the operating standards contained
in Section 2.9 of the IP Holder Trust Agreement not specified in (i)(C)
above and, in the case of the preceding clauses (ii)(A) and (ii)(B),
such failure continues for a period ending on the earlier to occur
of 30 consecutive days after Holdings, XxxXx or IP Holder, as the
case may be, shall have become aware of such failure or shall have
received notice of such failure, provided, however, so long as
Holdings, XxxXx or IP Holder, as the case may be, is diligently
attempting to cure such failure, such cure period shall be extended
by an additional period as may be required but in no event more than
an additional 30 days;
(l) the Debt Service Coverage Ratio is less than or equal to 1.00;
(m) any representation or warranty made by the Issuer in any Transaction
Document shall prove to be false or incorrect in any material respect
as of the date made or deemed to be made or as of any other date
specified in the applicable Transaction Document (a "Breach"), provided
that if any such Breach is capable of being remedied within 30 days of
the Issuer's knowledge of such Breach or receipt of notice thereof,
then an Event of Default shall occur under this clause (l) as a result
of such Breach if it is not cured in all material respects by the end
of such 30-day period; provided, further, that so long as the Issuer is
diligently attempting to cure such failure, such cure period shall be
extended by an additional period as may be required but in no event
more than an additional 30 days; or
(n) the occurrence and continuation of an "Event of Default" under the
Insurance Agreement.
SECTION 5.02 Insurer Defaults. "Insurer Default" means the occurrence and
continuance of any of the following events:
(a) the Insurer shall have failed to make a payment required under the Policy in
accordance with its terms;
(b) the Insurer shall have (i) filed a petition or commenced any case or
proceeding under any provision or chapter of the Bankruptcy Code or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation or reorganization, (ii) made a general assignment for the benefit of
its creditors, or (iii) had an order for relief entered against it under the
Bankruptcy Code or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization which is
final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department of Insurance or
other competent regulatory authority shall have entered a final and
nonappealable order, judgment or decree (i) appointing a custodian, trustee,
agent or receiver for the Insurer or for all or any material portion of its
property or (ii) authorizing the taking of possession by a custodian, trustee,
agent or receiver of the Insurer (or the taking of possession of all or any
material portion of the property of the Insurer).
The Insurer shall promptly notify the Indenture Trustee and
the Issuer in writing of any Insurer Default described in subsection (b) or (c)
above, and the Indenture Trustee and the Issuer shall not be deemed to have
knowledge of any such events until receipt of written notice of such event from
the Insurer or any other Person or Responsible Officer of the Indenture Trustee
or the Issuer, as the case may be, responsible for administering the
transactions herein described has actual knowledge of such event.
SECTION 5.03 [Reserved].
SECTION 5.04 [Reserved].
SECTION 5.05 Acceleration of Maturity; Rescission and Annulment. (a) At any time
after an Event of Default has occurred and is continuing, other than an Event of
Default specified in clause (f), (g) or (h) of Section 5.01, the Indenture
Trustee shall, at the direction of the Controlling Party and on behalf of the
Holders of the Notes, declare on written notice to the Issuer, the Aggregate
Outstanding Principal Amount of the Notes to be immediately due and payable, and
upon any such declaration, such principal, together with all accrued and unpaid
interest thereon, and other amounts payable hereunder, shall automatically
become immediately due and payable in accordance with the Priority of Payments;
provided that such acceleration shall not result in an acceleration of payments
under the Policy. If an Event of Default specified in clause (f), (g) or (h) of
Section 5.01 shall have occurred and be continuing, all unpaid principal,
together with all accrued and unpaid interest thereon, of all of the Notes, and
other amounts payable hereunder, shall automatically become due and payable;
provided that such acceleration shall not result in an acceleration of payments
under the Policy.
(b) At any time after an Event of Default has occurred and the Notes have been
accelerated pursuant to Section 5.05(a) above, the Indenture Trustee (or either
of the Servicers on behalf of the Indenture Trustee) shall at the written
direction of the Controlling Party invest or dispose of any or all of the
Collateral.
The Indenture Trustee shall not be bound to institute any
Proceedings or take any other action unless (i) with respect to an acceleration
of the Notes pursuant to this Section 5.05(a), it shall have been so requested
by the Controlling Party and (ii) it shall have been provided security or
indemnity to its reasonable satisfaction.
(c) At any time after such a declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter provided in this Article Five,
the Controlling Party, by written notice to the Issuer and the Indenture Trustee
(if it is not the Controlling Party), may rescind and annul such declaration and
its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(A) all overdue installments of interest and principal on the Notes,
(B) all unpaid taxes, SPV Operating Expenses and other sums paid or
advanced by the Indenture Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel and any due and unpaid Servicing Fees,
and
(C) all outstanding Reimbursements and the Premium owed to the Insurer; and
(ii) the Indenture Trustee has determined, after consultation with counsel
of its own choosing (which may include obtaining such Opinions of
Counsel as it deems necessary or advisable), that all Events of
Default, other than the non-payment of the interest on or principal of
Notes that have become due solely by such acceleration, have been cured
and the Controlling Party, by written notice to the Indenture Trustee,
has agreed with such determination (which agreement shall not be
unreasonably withheld or delayed) or waived as provided in Section
5.08.
No such rescission and annulment shall affect any subsequent
Default or Event of Default or impair any right consequent thereon.
SECTION 5.06 Enforcement; Recourse Limited to Collateral. (a) At any time after
an Event of Default has occurred and is continuing, the Indenture Trustee shall,
pursuant to a Controlling Party Order, institute Proceedings to seek or enforce
any remedy to protect and enforce any rights or powers of the Indenture Trustee
hereunder or any of the rights or powers of the Insurer and Holders of all of
the Notes. Upon the acceleration of the Notes under Section 5.05 hereof, the
Indenture Trustee shall, if and as directed pursuant to a Controlling Party
Order, (i) institute Proceedings to enforce the rights of the Indenture Trustee
with respect to the Collateral, including, without limitation, to foreclose upon
the Collateral or sell the Collateral under a decree of a court or courts of
competent jurisdiction, and (ii) may at its discretion take any other action of
a secured party as permitted by the laws of the State of New York. Except as
provided in Section 3.05 or otherwise in this Indenture, the Indenture Trustee
shall have no right of enforcement against the Collateral unless and until the
Notes have been accelerated as provided in Section 5.05 hereof.
In addition, in the case of an Insurer Default, the Indenture
Trustee shall institute such Proceedings or take such other action to enforce
the obligations of the Insurer under the Policy as the Holders of a Majority of
the Aggregate Outstanding Principal Amount of the Notes shall direct in writing.
No Noteholder shall be entitled to institute Proceedings or take such other
action directly against the Issuer, the Insurer or the Collateral with respect
to the Notes, whether to enforce the Issuer's obligations hereunder or under
such Notes, or against any Collateral securing the Notes, unless an Insurer
Default has occurred and is continuing and unless the Indenture Trustee, having
become bound so to act, fails to institute Proceedings against the Issuer or
with respect to any such Collateral within a reasonable time and such failure is
continuing.
(b) At any time after the Notes then Outstanding have become payable upon
acceleration in accordance with Section 5.05 hereof, the Indenture Trustee may,
or shall at the written direction of the Insurer (so long as it is the
Controlling Party), from time to time sell, in any manner permitted by law,
without recourse, at public or private sale, for Cash or Notes in lieu of Cash
as provided in Section 5.06(c)(iv) and for such price or prices and on such
terms (as to any or all of which manner, prices and terms the Indenture Trustee
may rely conclusively on the opinion of a financial adviser selected by it as
provided in Section 6.03), with respect to an acceleration pursuant to Section
5.05(a), as the Indenture Trustee shall be directed in writing by the
Controlling Party, all or any part of the Collateral. Notwithstanding the
foregoing, if such prices or terms are such that a sale of the Collateral at
such prices or terms would result in sales proceeds that are insufficient to
satisfy the obligations of the Issuer under this Indenture, the Indenture
Trustee shall not proceed with a sale of any portion of the Collateral without
the consent of the Insurer (so long as it is the Controlling Party), and, if the
Insurer is no longer the Controlling Party, Holders of a Majority of the
Aggregate Outstanding Principal Amount of the Notes.
(c) Upon any sale of all of the Collateral securing the Notes as provided in
this Indenture made either under the power of sale given under this Indenture or
under judgment or decree in any judicial proceedings for foreclosure or
otherwise for the enforcement of this Indenture, the following shall be
applicable:
(i) The Indenture Trustee is hereby irrevocably appointed the true and
lawful attorney of the Issuer to the extent permitted by law, in its
name and stead, to make all necessary deeds, bills of sale and
instruments of assignment, transfer or conveyance of the property thus
sold; and for that purpose may make instruments and instructions and
may substitute one or more Persons with like power; and the Issuer
hereby ratifies and confirms all that its said attorney, or such
substitute or substitutes, shall lawfully do by virtue hereof.
(ii) If so requested by the Indenture Trustee or by any purchaser, the
Issuer shall ratify and confirm any such sale, or transfer by executing
and delivering to the Indenture Trustee or to such purchaser or
purchasers all proper deeds, bills of sale, instruments of assignment,
conveyance or transfer and releases as may be designated in any such
request.
(iii) To the extent permitted by applicable law, any Noteholder, the
Indenture Trustee or the Insurer may bid for and purchase any of the
Collateral, and upon compliance with the terms of sale, may hold,
retain, possess and dispose of such Collateral in his or its own
absolute right without further accountability.
(iv) Any purchaser at any such sale may, in paying the purchase price for
Collateral securing the Notes, deliver any Notes in lieu of Cash and
apply to the purchase price the amount that upon distribution of the
net proceeds of such sale, after application to the costs of the action
and any other sums that the Indenture Trustee is authorized to deduct
under this Indenture, would have been payable on such Notes so
delivered in respect of principal and interest.
(v) The receipt of the purchase price by the Indenture Trustee or of the
officer making such sale under judicial proceeding shall be sufficient
discharge to any purchaser for his purchase money, and, after paying
such purchase money and receiving such receipt, such purchaser or its
personal representatives or assigns shall not be obligated to see to
the application of such purchase money, or be in any way answerable for
any loss, misapplication or nonapplication thereof.
(vi) Any such sale, to the maximum extent permitted by law, shall operate to
divest the Issuer of all right, title, interest, claim and demand
whatsoever, either at law or in equity or otherwise, in and to the
Collateral so sold and shall be a perpetual bar both at law and at
equity or otherwise against the Issuer, and its successors and assigns,
and any and all Persons claiming or who may claim the Collateral sold
or any part thereof from, through or under the Issuer, or its
successors and assigns.
(vii) Any moneys collected by the Indenture Trustee upon any sale made either
under the power of sale given by this Indenture or under judgment or
decree in any judicial proceedings for foreclosure or otherwise for the
enforcement of this Indenture shall be applied as provided in Section
5.07 hereof.
(d) In accordance with the terms of this Indenture, at any time the Indenture
Trustee is directed to institute Proceedings to enforce the Notes or this
Indenture with respect to such Notes, the following shall be applicable:
(i) The Indenture Trustee in its own name, and as trustee of an express
trust, shall be entitled and empowered to institute any suits, actions
or other Proceedings at law, in equity or otherwise, to recover
judgment against the Issuer on such Notes for the whole amount due and
unpaid, and against the Insurer for any amounts owing under the
Policy and may prosecute any such claims or Proceedings to judgment
or final decree against the Issuer or the Insurer and collect the
monies adjudged or decreed to be payable in any manner provided by
law, whether before or after or during the pendency of any
Proceedings for the enforcement of the Lien of this Indenture, or
of any of the Indenture Trustee's rights or the rights of the Insurer
or the Holders of the Notes under this Indenture or the Indenture
Trustee's rights under the Policy, and such power of the Indenture
Trustee shall not be affected by any sale hereunder or by the exercise
of any other right, power or remedy for the enforcement of the
provisions of this Indenture or for the foreclosure of the Lien hereof.
(ii) Subject to Section 5.06(e) hereof, in case of a sale of Collateral and
of the application of the proceeds of such sale to the payment of the
principal of and interest on such Notes and other amounts owing
hereunder in accordance with the Priority of Payments, the Indenture
Trustee in its own name, and as trustee of an express trust, shall be
entitled and empowered, by any appropriate means, legal, equitable or
otherwise, to enforce payment of, and to receive all amounts then
remaining due and unpaid to the Secured Parties, for the benefit of the
Secured Parties, with, as applicable, interest at the rate borne by
such Notes or such other rate as applicable thereto under the
Transaction Documents.
(iii) Except as required by applicable law or the terms of such judgment or
final decree, no recovery of any judgment or final decree by the
Indenture Trustee and no levy of any execution under any such judgment
upon any of the Collateral shall in any manner or to any extent affect
the Lien of this Indenture upon any of such Collateral, or any rights,
powers or remedies of the Indenture Trustee, but all such Liens,
rights, powers and remedies shall continue unimpaired as before.
(iv) The Indenture Trustee in its own name, or as Indenture Trustee of an
express trust, or as attorney-in-fact for Holders of Notes or the
Insurer, as the case may be, or in any one or more of such capacities
(irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made any
demand on the Issuer for the payment of overdue principal or
interest), shall be entitled and empowered to file such proofs of
claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee and of the
Insurer and the Holders of Notes, as applicable (whether such claims
be based upon the provisions of such Notes, the Policy or of this
Indenture), allowed in any receivership, insolvency, bankruptcy,
moratorium, liquidation, readjustment, reorganization or any other
judicial or other Proceedings relative to the Issuer or the Insurer,
the creditors of the Issuer, the Insurer or the Collateral, and any
receiver, assignee, Indenture Trustee, liquidator, sequestrator
(or other similar official) in any such judicial or other Proceeding
is hereby authorized to make such payments to the Indenture Trustee
and, in the event that the Indenture Trustee shall consent to the
making of such payments directly to the Noteholders or the Insurer,
to pay to the Indenture Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee, its agents and counsel. The Indenture Trustee
is hereby irrevocably appointed (and the successive respective
Holders of the Notes and the Insurer by taking and holding the same,
shall be conclusively deemed to have so appointed the Indenture
Trustee) the true and lawful attorney-in-fact of the respective
Noteholders and the Insurer with authority to (x) make and file in
the respective names of the Noteholders and the Insurer (subject
to deduction from any such claims of the amounts of any claims filed
by any of the Noteholders and the Insurer themselves to the extent
permitted hereby) any claim, proof of claim or amendment thereof,
debt, proof of debt or amendment thereof, petition or other
document in any such Proceeding and to receive payment of amounts
distributable on account thereof, (y) execute any such other papers
and documents and do and perform any and all such acts and things for
and on behalf of such Noteholders and the Insurer as may be necessary
or advisable in order to have the respective claims of the Indenture
Trustee and of the Noteholders and the Insurer against the Issuer or
the Collateral, and (z) receive payment of or on account of such
claims and debt; provided that nothing contained in this Indenture
shall be deemed to give to the Indenture Trustee any right to accept
or consent to any plan of reorganization or otherwise by action
of any character in any such Proceeding to waive or change in any
way any right of any Noteholder or the Insurer. Any monies
collected by the Indenture Trustee under this subsection (d) shall be
applied as provided in Section 5.07.
(v) All rights of action and of asserting claims under this Indenture, the
Policy, or under any of the Notes enforceable by the Indenture Trustee
may be enforced by the Indenture Trustee to the extent permitted by law
without possession of any of such Notes or the production thereof at
the trial or other Proceedings relative thereto.
(vi) In case the Indenture Trustee shall have proceeded to enforce any right
under this Indenture by suit, foreclosure or otherwise and such
Proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Indenture Trustee, then
in every such case the Issuer, the Insurer and the Indenture Trustee
shall, to the extent permitted by law, be restored without further act
to their respective former positions and rights hereunder, and all
rights, remedies and powers of the Indenture Trustee shall continue as
though no such Proceedings had been taken, except to the extent
determined in litigation adversely to the Indenture Trustee.
(e) Notwithstanding any other provision of this Indenture, the Notes, the
Insurance Agreement, the Servicing Agreements or any other Transaction Document
or otherwise, the liability of the Issuer to the Noteholders, the Insurer, the
Servicers, the Initial Purchasers, and the Indenture Trustee under or in
relation to the Notes, this Indenture, the Insurance Agreement, the Servicing
Agreements or any other Transaction Document or otherwise, is limited in
recourse to the Collateral. The Collateral having been applied in accordance
with the terms hereof, none of the Indenture Trustee, the Noteholders, the
Insurer, the Initial Purchasers and the Servicers shall be entitled to take any
further steps against the Issuer to recover any sums due but still unpaid
hereunder, under the Notes or under any of the other agreements or documents
described in this paragraph (e), all claims in respect of which shall be
extinguished. In particular, the Indenture Trustee agrees, and each Noteholder
by its acceptance of a Note and each other Secured Party and the Servicers by
their acceptance of the benefits of this Indenture will be deemed to have
agreed, not to take any action or institute any proceeding against the Issuer
under any Insolvency Law applicable to the Issuer; provided that each of the
Indenture Trustee and the Noteholders, any other Secured Party and the Servicers
may become parties to and participate in any Proceeding or action under any
Insolvency Law applicable to the Issuer that is initiated by any Person that is
not an Affiliate of it.
SECTION 5.07 Application of Monies Collected by Indenture Trustee. Any monies
withdrawn, collected or to be applied by the Indenture Trustee with respect to
the Notes pursuant to this Article Five shall be deposited in the Collection
Account (other than proceeds of the Policy which shall be deposited into the
Policy Account) and, together with any other monies that may then be held by the
Indenture Trustee under any of the provisions of this Indenture as part of the
Collateral with respect to the Notes, shall be applied in accordance with the
priorities set forth in Section 10.03.
SECTION 5.08 Waiver of Appraisement, Valuation, Stay and Right to Marshaling. To
the extent it may lawfully do so, the Issuer for itself and for any Person who
may claim through or under it hereby:
(a) agrees that neither it nor any such Person will step up, plead, claim or in
any manner whatsoever take advantage of any appraisement, valuation, stay,
extension or redemption laws, now or hereafter in force in any jurisdiction,
which may delay, prevent or otherwise hinder (i) the performance, enforcement or
foreclosure of this Indenture, (ii) the sale of any of the Collateral, or (iii)
the putting of the purchaser or purchasers thereof into possession of such
property immediately after the sale thereof;
(b) waives all benefit or advantage of any such laws;
(c) waives and releases all rights to have the Collateral marshaled upon any
foreclosure, sale or other enforcement of this Indenture; and
(d) consents and agrees that, subject to the terms of this Indenture, all the
Collateral may at any such sale be sold by the Indenture Trustee as an entirety.
SECTION 5.09 Remedies Cumulative; Delay or Omission Not a Waiver. To the extent
permitted by law, every remedy given hereunder to the Indenture Trustee, the
Insurer or to any of the Noteholders shall not be exclusive of any other remedy
or remedies, and every such remedy shall be cumulative and in addition to every
statute, law, equity or otherwise. Subject to the terms of this Indenture
specifically including the rights of the Insurer as Controlling Party (so long
as it is the Controlling Party) to direct actions of the Indenture Trustee in
accordance with the terms of this Indenture, the Indenture Trustee may exercise
all or any of the powers, rights or remedies given to it hereunder or which may
be now or hereafter given by statute, law, equity or otherwise, in its absolute
discretion. No course of dealing between the Issuer, the Insurer and the
Indenture Trustee or the Noteholders or any delay or omission of the Indenture
Trustee, the Insurer or of the Noteholders to exercise any right, remedy or
power accruing upon any Event of Default shall impair any right, remedy or power
or shall be construed to be a waiver of any such Event of Default or of any
right of the Indenture Trustee, the Insurer or of the Noteholders or
acquiescence therein, and every right, remedy and power given by this Article
Five to the Indenture Trustee, the Insurer or to the Noteholders may, to the
extent permitted by law, be exercised from time to time and as often as may be
deemed expedient by the Indenture Trustee, the Insurer or by the Noteholders.
SECTION 5.10 Control by the Insurer. Notwithstanding any other provision of this
Indenture (but subject, for the avoidance of any doubt, to the provisions of
Sections 5.06(e) and 12.03 hereof), the Controlling Party (so long as it is the
Insurer) shall have the right to cause the institution of, and direct the time,
method and place of, conducting any Proceeding for any remedy available to the
Indenture Trustee and to direct the exercise of any trust, right, remedy or
power conferred on the Indenture Trustee, provided that:
(a) such direction shall be in writing and shall not conflict with any rule of
law or with this Indenture;
(b) the Indenture Trustee may take any other action deemed proper by the
Indenture Trustee that is not inconsistent with such direction or this
Indenture; provided, however, that, subject to Section 6.01, the Indenture
Trustee need not take any action that it determines might involve it in
liability (unless the Indenture Trustee has received satisfactory indemnity
against such liability as set forth below); and
(c) the Indenture Trustee shall have been provided with indemnity satisfactory
to it.
ARTICLE SIX
THE INDENTURE TRUSTEE
SECTION 6.01 Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default known to the Indenture Trustee, the Indenture
Trustee undertakes to perform such duties and obligations and only such duties
and obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Indenture
Trustee.
(b) In case an Event of Default actually known to the Indenture Trustee has
occurred and is continuing, the Indenture 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 such exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the Indenture
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that, subject to Section 6.01(b):
(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section 6.01;
(ii) the Indenture Trustee may consult with counsel of its own choosing 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,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(iii) in the absence of bad faith on its part, the Indenture Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, that in the case
of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the
Indenture Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture (but need not verify the accuracy of the contents thereof)
and shall promptly notify the party delivering the same if such
certificate or opinion does not conform. If a corrected form shall
not have been delivered to the Indenture Trustee within 30 days
after such notice from the Indenture Trustee, the Indenture Trustee
shall so notify the Insurer and the Noteholders;
(iv) the Indenture Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proven
that the Indenture Trustee was negligent in ascertaining the pertinent
facts;
(v) the Indenture Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith with respect to the
method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee, or with respect to exercising any trust or
power conferred upon the Indenture Trustee, under this Indenture;
(vi) no provision of this Indenture shall be construed as requiring the
Indenture Trustee to expend or risk its own funds or otherwise incur
any liability, loss or risk in the performance of any of its duties
hereunder, financial or otherwise, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it;
(vii) the Indenture Trustee shall not be liable or responsible for any loss
resulting from any investment of monies held by it under this Indenture
invested in accordance with the terms hereof or resulting from the
redemption or sale of any investment as herein authorized; and
(viii) for all purposes of this Indenture, the Indenture Trustee shall not be
deemed to have knowledge of an Event of Default, nor shall it be
obligated to exercise any remedies with respect thereto, unless (A) a
Responsible Officer of the Indenture Trustee shall have actual
knowledge thereof or (B) written notice of such Event of Default shall
have been received by a Responsible Officer of the Indenture Trustee
from the Issuer, the Insurer or from the Holders of greater than 50% in
Aggregate Outstanding Principal Amount of the Notes then Outstanding,
provided that, with respect to an Event of Default under Section
5.01(a) or Section 5.01(b) hereof, such written notice may be received
from any individual Holder of a Note.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Indenture Trustee shall be subject to the provisions of this
Article Six.
(e) 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 any action to be taken 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 Issuer Order
or Controlling Party Order as the case may be, delivered to the Trustee and such
Issuer Order or Controlling Party Order, as the case may be, 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.
(f) The Indenture Trustee shall require that any agent appointed hereunder agree
to be bound by the terms of this Indenture with respect to any actions to be
taken outside of the United States.
SECTION 6.02 Notice of Default. Promptly (and in no event later than two
Business Days) after the Indenture Trustee becomes actually aware of the
occurrence of any Default or Event of Default, the Indenture Trustee shall
notify the Insurer, the Issuer, the Rating Agencies and all Noteholders in
accordance with Section 12.04 hereof of the occurrence of such Event of Default,
unless such Default or Event of Default shall have been cured or waived in
accordance with the terms hereof. If any securities exchange with respect to
which any of the Notes may be listed so requires, the Indenture Trustee shall
publish such notice in accordance with such requirements from funds available
for such purpose in accordance with Section 10.03.
SECTION 6.03 Certain Rights of Indenture Trustee. Subject to Section 6.01
hereof:
(a) the Indenture Trustee may rely conclusively and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
note or other paper or document (including facsimile transmission) believed by
it to be genuine and to have been signed or presented by the proper party or
parties and the Indenture Trustee shall have no responsibility to ascertain or
confirm the genuineness of any signature of any such party or parties;
(b) any request of the Issuer shall be sufficiently evidenced by an Issuer
Request or Issuer Order;
(c) whenever in the administration of this Indenture the Indenture Trustee shall
(i) deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Indenture Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely conclusively upon an Officers' Certificate or Opinion of Counsel
or (ii) be required to determine the value of any collateral or funds hereunder
or the cash flows projected to be received therefrom, the Indenture Trustee may,
in the absence of bad faith or its part, rely conclusively on reports of
nationally recognized accounting firms or other persons qualified to provide the
information required to make such determination, including nationally or
internationally recognized dealers, of the type of collateral being valued and
securities quotation services;
(d) as a condition to the taking or omitting of any action by it hereunder, the
Indenture Trustee may consult with counsel, financial advisors or accountants of
its own choosing and the advice of such counsel (including any opinion provided
by such counsel), financial advisors or accountants shall be full and complete
authorization and protection in respect of any action taken or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Indenture Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture or to honor the request or
direction of any of the Noteholders, the Controlling Party or either of the
Servicers pursuant to this Indenture unless such request or direction is in
writing and such parties shall have offered to the Indenture Trustee security or
indemnity satisfactory to the Indenture Trustee against all costs, expenses and
liabilities which might reasonably be incurred by it in compliance with such
request or direction; provided, however, that the Indenture Trustee shall have
no liability for failing to take any action or to exercise any of the rights or
powers under this Indenture (other than any action or exercise in the ordinary
course of performing its services under this Indenture) if any such required
indemnity or security is not provided with respect to such action or exercise;
(f) the Indenture Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or other
paper documents, but the Indenture Trustee, upon written direction of the
Insurer or Noteholders of more than 50% of the Aggregate Outstanding Principal
Amount of the Notes, shall make such further inquiry or investigation into such
facts or matters as it may see fit or as it shall be directed;
(g) the Indenture Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that so long as the Indenture Trustee shall have
received the consent of the Controlling Party prior to such appointment the
Indenture Trustee shall not be responsible for any misconduct or negligence on
the part of any agent appointed, or attorney appointed, with due care by it
hereunder. The Insurer hereby consents to the appointment by the Issuer of the
Indenture Trustee, as paying agent;
(h) to the extent permitted by applicable law, the Indenture Trustee shall not
be required to give any bond or surety in respect of the execution of this
Indenture or otherwise; and
(i) the Indenture Trustee shall not be deemed to have notice or knowledge of any
matter unless a Responsible Officer assigned to and working in the Indenture
Trustee's corporate trust department has actual knowledge thereof or unless
written or facsimile notice thereof is received by the Indenture Trustee at the
Corporate Trust Office and such notice references the Notes generally, the
Issuer or this Indenture. Whenever reference is made in this Indenture to an
Event of Default such reference shall, insofar as determining any liability on
the part of the Indenture Trustee is concerned, be construed to refer only to an
Event of Default of which the Indenture Trustee is deemed to have knowledge in
accordance with this paragraph.
SECTION 6.04 Not Responsible for Recitals or Issuance of Notes. The recitals
contained in this Indenture and in the Notes (except for the Indenture Trustee's
certificate of authentication) shall be taken as statements of the Issuer, and
the Indenture Trustee assumes no responsibility of the correctness of the same.
The Indenture Trustee makes no representation as to the validity or sufficiency
of this Indenture or of the Notes or any offering memorandum related thereto or
the Trust Estate, or any money paid to the Issuer or upon the Issuer's direction
under any provision hereof or the application by the Issuer of the Notes or the
proceeds thereof. The Indenture Trustee shall not be accountable for the use or
application by the Issuer of Notes or the proceeds thereof.
SECTION 6.05 May Hold Notes. The Indenture Trustee may, subject to restrictions
otherwise applicable to the Notes, become the owner or pledgee of Notes and, may
otherwise deal with the Issuer or any Affiliate thereof, with the same rights it
would have if it were not Indenture Trustee.
SECTION 6.06 Money Held in Trust. The Indenture Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed upon with the Issuer and except to the extent of income or other gain on
investments which are deposits in or certificates of deposit of the Indenture
Trustee in its commercial capacity and income or other gain actually received by
the Indenture Trustee on Eligible Investments. The Indenture Trustee shall not
be held responsible for nor be required to reimburse any Person for any loss of
principal or interest on any amounts invested in Eligible Investments in
accordance with the terms hereof.
SECTION 6.07 Compensation and Reimbursement. (a) The Issuer shall pay to the
Indenture Trustee from time to time compensation for all of its services
rendered in accordance with the terms and conditions hereof as has been
separately agreed to by the Issuer and the Indenture Trustee. The Indenture
Trustee's compensation hereunder shall not be limited by any law on compensation
of a trustee of an express trust. The Issuer shall reimburse the Indenture
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it hereunder. Such expenses shall include the compensation,
disbursements and expenses of the Indenture Trustee's agents and counsel.
(b) When the Indenture Trustee incurs expenses or renders services after an
Event of Default occurs, the expenses and the compensation for such services are
intended to constitute expenses of administration under any Insolvency Law to
the extent permissible thereunder.
(c) The Issuer shall indemnify, protect and hold harmless the Indenture Trustee
(in its individual capacity and as Indenture Trustee), its directors, officers,
employees and agents (collectively, the "Indemnitees") from and against any and
all actions, claims, damages, liabilities, judgments, losses, costs, charges and
expenses (including, without limitation, legal fees and expenses) relating to or
arising out of or in connection with actions or omissions from actions in any
capacity hereunder, except actions, claims, damages, liabilities, judgments,
losses, costs, charges and expenses caused by the negligence or willful
misconduct of the Indenture Trustee, its directors, officers, employees or
agents. The Indemnitees shall incur no liability and shall be indemnified and
held harmless by the Issuer for (i) any error resulting from use of or reliance
on a source or publication required to be used under the terms of the Notes or
this Indenture, (ii) any error of judgment made without negligence, bad faith or
willful misconduct by a Responsible Officer or officers or employees of the
Indenture Trustee, (iii) any loss resulting from an investment of funds made by
the Indenture Trustee in Eligible Investments in accordance with this Indenture,
including any loss of principal, or (iv) any tax liability in relation to
Eligible Investments or any interest thereon or any income on any of the Trust
Estate including the costs and expenses of defending itself against any claim of
liability in the premises. The Indemnitees shall incur no liability and shall be
indemnified, protected and held harmless by the Issuer for, or in respect of,
any actions taken, omitted to be taken or suffered to be taken in accordance
with this Indenture without negligence, bad faith or willful misconduct by the
Indenture Trustee in reliance upon (i) a written Opinion of Counsel, (ii) a
written instruction or Officers' Certificate from the Issuer, (iii) written
instruction or Controlling Party Order from the Controlling Party, (iv) written
instruction of the American Servicer or (v) written instructions of the
Noteholders of more than 50% of the Aggregate Outstanding Principal Amount of
the Notes.
(d) The obligations of the Issuer under this Section 6.07 to compensate the
Indenture Trustee and to pay, indemnify or reimburse the Indenture Trustee and
any predecessor Indenture Trustee for actions, claims, damages, liabilities,
judgments, losses, costs and charges and expenses, shall survive the
satisfaction and discharge of this Indenture or the resignation or removal of
the Indenture Trustee, as provided hereunder but are limited in recourse to the
Collateral. Amounts payable and reimbursable to the Indenture Trustee pursuant
to this Section 6.07 shall constitute Trustee Fees and shall be paid or
reimbursed to the Indenture Trustee solely from the amounts on deposit in the
Collection Account in accordance with the Priority of Payments.
(e) Compensation payable to a successor Indenture Trustee appointed under
Section 6.08 of this Indenture shall be subject to the Priority of Payments to
the same extent and with the same priority as the Indenture Trustee Fees.
SECTION 6.08 Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Indenture Trustee and no appointment of a
successor Indenture Trustee pursuant to this Article Six shall become effective
until the acceptance of appointment by the successor Indenture Trustee under
Section 6.09 hereof.
(b) The Indenture Trustee may resign at any time by (i) giving written notice
thereof to the Noteholders, the Issuer and the Insurer in accordance with
Section 12.04 hereof and (ii) obtaining the written consent of the Insurer
(unless the Insurer is no longer the Controlling Party), which consent shall not
be withheld if the Indenture Trustee has identified a successor Indenture
Trustee meeting the requirements of this Section 6.08 which is reasonably
acceptable to the Insurer and who is willing to accept the appointment described
below for a market rate fee. No resignation of the Indenture Trustee shall be
effected until a successor is appointed in accordance with this Section 6.08.
(c) Upon receiving such notice of resignation, the Issuer shall promptly, with
the prior written consent of the Insurer (so long as the Insurer is the
Controlling Party and is continuing), appoint a successor Indenture Trustee by
written instrument, in duplicate, executed by Authorized Officers of the Issuer
on behalf of the Issuer, one original copy of which shall be delivered to the
Indenture Trustee so resigning, one original copy to the successor Indenture
Trustee and one original copy to the Insurer, together with notice to each
Noteholder in accordance with Section 12.04 hereof (at the expense of the
Issuer).
(d) The Indenture Trustee may be removed at any time upon prior written notice
by the Issuer or by Noteholders holding more than 50% of the Aggregate
Outstanding Principal Amount of the Notes (in each case, with the Insurer's
prior written consent if it is the Controlling Party), delivered to the
Indenture Trustee and the Issuer.
(e) If at any time:
(i) the Indenture Trustee shall fail to resign after written request
therefor by the Issuer, the Insurer or by Noteholders holding more than
50% of the Aggregate Outstanding Principal Amount of the Notes (with
the Insurer's prior written consent); or
(ii) the Indenture Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver or liquidator of the
Indenture Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, (x) the Issuer, by Issuer Order, (y) the Holders of more
than 50% of the Aggregate Outstanding Principal Amount of the Notes may with the
consent of the Insurer (so long as it is the Controlling Party) or (z) the
Insurer if it is the Controlling Party may, at its sole discretion, remove the
Indenture Trustee. In the event that the Issuer shall remove the Indenture
Trustee in accordance with this Section 6.08(e), the Issuer shall, promptly, and
in any event within three days thereof, notify each Noteholder of such removal
in accordance with Section 12.04.
(f) If the Indenture Trustee shall be removed or become incapable of acting, or
if a vacancy shall occur in the office of the Indenture Trustee for any cause,
the Issuer, upon written direction from the Insurer or the Holders of more than
50% of the Aggregate Outstanding Principal Amount of the Notes (with the
Insurer's prior written consent if it is the Controlling Party), shall promptly
appoint a successor Indenture Trustee. If no successor Indenture Trustee shall
have been appointed pursuant to Section 6.08(c) hereof and shall have accepted
appointment in the manner hereinafter provided within 90 days, the Indenture
Trustee, the Insurer or any Noteholder may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
(g) The Indenture Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any state thereof authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $150,000,000 and subject to
supervision or examination by federal or state authority and be acceptable to
the Insurer (so long as it is the Controlling Party) and have an actual or
implied short-term debt of at least "P-1" by Moody's and "A-1" by Standard &
Poor's and an actual or implied long-term debt rating of at least "Baa1" by
Moody's and "BBB+" by Standard & Poor's. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 6.08(g), the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Indenture Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.08(g), the Indenture Trustee shall resign immediately in the manner and with
the effect specified in Sections 6.08(b)(i) and 6.08(b)(ii) hereof.
(h) The successor Indenture Trustee shall give prompt notice of each resignation
and each removal of the Indenture Trustee and each appointment of a successor
Indenture Trustee by notifying the Insurer and the Noteholders in accordance
with Section 12.04 hereof. Each notice shall include the name of the successor
Indenture Trustee and the address of its Corporate Trust Office.
(i) As long as no Insurer Default shall have occurred and be continuing, the
Insurer may at any time require the Issuer to remove the Indenture Trustee if,
(i) the Insurer determines that reasonable cause exists for such removal or (ii)
in the opinion of independent counsel of recognized standing (A) any payment of
interest or principal or premium in respect of any of the Collateral would be
subject to withholding or deduction for or on account of taxes, (B) the
Indenture Trustee would not be entitled to receive a gross-up in respect of such
payment, and (C) such withholding or deduction could be avoided by appointing a
successor Indenture Trustee; provided that in the case of subsection (ii) the
Issuer shall not be required to remove the Indenture Trustee if the Issuer or
the Indenture Trustee takes other action to avoid such withholding or deduction
which is reasonably satisfactory to the Insurer (including the appointment of a
co-Indenture Trustee). The Insurer may exercise its rights hereunder by giving
written notice of such exercise to the Indenture Trustee and the Issuer, in
which case the Issuer shall promptly remove the Indenture Trustee and appoint a
successor thereto with the consent of the Insurer by written instrument, in
duplicate, executed upon an Issuer Order, one copy of which instrument shall be
delivered to the Indenture Trustee and one copy to the successor Indenture
Trustee.
SECTION 6.09 Acceptance of Appointment by Successor. (a) Every successor
Indenture Trustee appointed hereunder shall execute, acknowledge and deliver to
the Issuer, the Insurer and the retiring Indenture Trustee an instrument in form
and substance reasonably satisfactory to the Insurer accepting such appointment,
and thereupon, upon receipt by such retiring or removed Indenture Trustee, of
all sums due under Section 6.07 or 7.02 hereof, as applicable, the resignation
or removal of the retiring Indenture Trustee shall become effective and such
successor Indenture Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts, duties and obligations of the
retiring Indenture Trustee; but, on written request of the Issuer, the Insurer
or the successor Indenture Trustee, such retiring Indenture Trustee shall, upon
payment of its charges then unpaid, execute and deliver an instrument in form
and substance reasonably satisfactory to such successor Indenture Trustee and
the Insurer transferring to such successor Indenture Trustee all the rights,
powers and trusts of the retiring Indenture Trustee, and shall duly assign,
transfer and deliver to such successor Indenture Trustee all property and money
held by such retiring Indenture Trustee hereunder. Upon written request of any
such successor Indenture Trustee, the Issuer and the Insurer shall execute any
and all instruments reasonably necessary to more fully and certainly vesting in
and confirming to such successor Indenture Trustee all such rights, powers and
trusts.
(b) Upon acceptance of appointment by a successor Indenture Trustee as provided
in this Section 6.09, the successor Indenture Trustee shall notify the
Noteholders in accordance with Section 12.04 hereof.
SECTION 6.10 Merger, Conversion, Consolidation or Succession to Business of
Indenture Trustee. Any corporation into which the Indenture Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Indenture
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Indenture Trustee, shall be the
successor of the Indenture Trustee hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, provided
that written notice of such merger, conversion or consolidation shall be
provided to the Issuer, the Insurer and the Rating Agencies and provided,
further, that the resulting or successor corporation is eligible under Section
6.08(g). In case any Notes subsequent thereto have been authenticated, but not
delivered, by the Indenture Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Indenture Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Indenture Trustee had itself authenticated such Notes.
SECTION 6.11 Limitation of Liability.. It is expressly understood and agreed by
the parties hereto that (a) this Indenture is executed and delivered by
Wilmington Trust Company, not individually or personally but solely as trustee
of the Issuer, in the exercise of the powers and authority conferred and vested
in it under the Trust Agreement, (b) each of the representations, undertakings
and agreements herein made on the part of the Issuer is made and intended not as
personal representations, undertakings and agreements by Wilmington Trust
Company but is made and intended for the purpose of binding only the Trust
Property (as defined in the Trust Agreement) and (c) under no circumstances
shall Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Issuer or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Indenture or the other Transaction Documents to which the
Issuer is a party.
ARTICLE SEVEN
[RESERVED]
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.01 Supplemental Indentures Without Consent of Noteholders. (a) The
Issuer, the Insurer and the Indenture Trustee, without the consent of the
Noteholders, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Indenture Trustee:
(i) to correct or amplify the description of any property at any time
subject to the Lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to
be subject to the Lien of this Indenture (including, without
limitation, in order to obtain a security interest thereto in a manner
consistent with Section 7.02), or to subject to the Lien of this
Indenture additional property;
(ii) to evidence the succession of another Person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer
contained herein and in the Notes;
(iii) to add to the covenants of the Issuer, in each case only to the extent
not adverse to the interests of any Noteholder or the Insurer, or to
surrender any right or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to or with
the Indenture Trustee for the benefit of Secured Parties or add to the
conditions, limitations or restrictions on the authorized amount, terms
and purposes of the issue, authentication and delivery of Notes;
(v) to evidence and provide for the acceptance of appointment hereunder by
a successor Indenture Trustee and to add to or change any of the
provisions as shall be necessary to facilitate the administration of
the trusts hereunder by more than one Indenture Trustee, pursuant to
the requirements of Sections 6.08 and 6.09 hereof;
(vi) to take any action necessary or advisable to prevent the Issuer or the
Indenture Trustee from becoming subject to any withholding or other
taxes, fees or assessments;
(vii) to cure any ambiguity or to correct or supplement any provisions herein
or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture;
(viii) to facilitate the transfer of Notes in accordance with applicable law
(as evidenced by an Opinion of Counsel), which may include providing
for the maintenance of a book-entry trading system;
(ix) to take any action necessary and appropriate to facilitate the
originations of new Franchise Agreements, the servicing of Franchise
Assets and the preservation and maintenance of the Arby's IP and the
Franchise Assets; and
(x) with the prior consent of the Controlling Party, take any action
necessary or advisable to effectuate any lockbox arrangements entered
into by the Issuer.
(b) The Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Indenture Trustee shall not
be obligated to enter into any such supplemental indenture that materially
adversely affects the Indenture Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise except to the extent required by
law.
(c) Copies of any Supplemental Indenture entered into in accordance with this
Section 8.01 shall be available upon request by any Noteholder duly given to the
Indenture Trustee.
SECTION 8.02 Consents to Supplemental Indentures. (a) With the written consent
of the Controlling Party, the Issuer and at the written direction of the Issuer,
the Indenture Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Noteholders under this Indenture; provided, however,
that any such supplemental indenture for which approval of Noteholders has not
been obtained as provided in this Section 8.02(a) may be entered into only upon
satisfaction of the Insurer Condition and written confirmation by each Rating
Agency that such action would not have an adverse effect upon the ratings of the
Notes; and provided, further, that no supplemental indenture shall be entered
into without the written consent of the Insurer and all the Holders of
Outstanding Notes affected thereby (in which event such confirmation from the
Rating Agencies and satisfaction of the Insurer Condition shall not be required)
that would do any of the following:
(i) change the Legal Final Payment Date, or the due date of any installment
of principal of or interest on, any Note, or reduce the principal
amount thereof or the Note Rate thereon, change the provisions of
Section 10.03 of this Indenture or change any place where, or the coin
or currency in which, any Note or the interest thereon is payable, or
the date or manner of payment, or impair the right to institute suit
for the enforcement of any such payment on or after the Legal Final
Payment Date thereof (or, in the case of the termination of the
obligations of the Issuer hereunder, on or after the applicable Trust
Termination Date);
(ii) reduce the percentage in Aggregate Outstanding Principal Amount of the
Notes, the consent of the Noteholders of which is required for the
execution of any such supplemental indenture, or the consent of the
Noteholders of which is required for any waiver of compliance with any
provisions of this Indenture or any Defaults hereunder and their
consequences provided for in this Indenture;
(iii) impair or adversely affect the Trust Estate except as otherwise
permitted herein;
(iv) permit the creation of any Lien ranking prior to or on a parity with
the Lien of this Indenture with respect to any part of the Trust Estate
or terminate the Lien of this Indenture on any property at any time
subject hereto or deprive any Noteholder of the security afforded by
the Lien of this Indenture except as otherwise permitted herein;
(v) reduce the percentage of the Aggregate Outstanding Principal Amount of
the Notes, the consent of the Noteholders of which is required to
request that the Indenture Trustee preserve the Trust Estate or to
rescind the Indenture Trustee's election to preserve the Trust Estate
pursuant to Section 5.06 hereof or to sell or liquidate the Trust
Estate pursuant to Section 5.06 hereof;
(vi) modify any of the provisions of this Section 8.02, except to increase
the percentage of the Aggregate Outstanding Principal Amount of the
Notes the consent of the Holders of which is required for any
supplemental indenture or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Noteholder of each Outstanding Note affected thereby;
(vii) modify the definition of the term "Outstanding";
(viii) release the Insurer from all or any part of its obligation to make
each and every payment under the Policy; or
(ix) modify any of the provisions of this Indenture in such a manner as to
affect the calculation of the amount of any payment of Interest
Distribution or Principal Distribution on any Payment Date (including
the calculation of any of the individual components of such
calculation) or to reduce the amount payable upon the redemption of
such Notes or change the time at which any Note may be redeemed.
(b) With respect to any supplemental indenture entered into in accordance with
this Section 8.02, it shall not be necessary for Noteholders to approve the
particular form of any proposed supplemental indenture, only the substance
thereof.
SECTION 8.03 Execution of Supplemental Indentures. In executing or accepting the
additional trusts created by any supplemental indenture permitted by this
Article Eight or the modifications thereby of the trusts created by this
Indenture, the Indenture Trustee shall be entitled to receive, and (subject to
Sections 6.01 and 6.03 hereof) shall be fully protected in relying conclusively
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture and that such
supplemental indenture is the legal, valid and binding obligation of the Issuer
enforceable against the Issuer in accordance with its terms (subject to
customary exceptions). The Indenture Trustee may, but shall not be obligated to,
enter into any such supplemental indenture that materially adversely affects the
Indenture Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 8.04 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article Eight, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Outstanding Note theretofore
and thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 8.05 Reference in Notes to Supplemental Indenture. Notes authenticated
and delivered after the execution of any supplemental indenture pursuant to this
Article Eight may, and if required by the Indenture Trustee shall, bear a
notation in form satisfactory to the Indenture Trustee as to any matter provided
for in such supplemental indenture. If the Issuer shall so determine, new Notes,
so modified as to conform in the opinion of the Indenture Trustee and the Issuer
to any such supplemental indenture, may be prepared and executed by the Issuer
and authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Notes.
ARTICLE NINE
REDEMPTION OF NOTES
SECTION 9.01 Optional Redemption, Election to Redeem. (a) Optional Redemption by
Issuer. The Notes shall be subject to redemption, in whole or in part, at the
option of the Issuer on any Payment Date at the Optional Redemption Price.
(b) Installments of interest and principal due on or prior to an Optional
Redemption Date shall continue to be payable to the Holders of such Notes
according to their terms. The election of the Issuer to redeem any Notes
pursuant to this Section 9.01 shall be evidenced by an Issuer Order from the
American Servicer directing the Indenture Trustee to make payment of the
Optional Redemption Price of the Aggregate Outstanding Principal Amount of the
Notes to be redeemed from funds in the Collection Account as described below.
The Notes shall be redeemed on a pro rata basis, based on the Aggregate
Outstanding Principal Amount of the Notes held by each Noteholder. The Issuer
shall deposit, or cause to be deposited, the funds required for an optional
redemption in whole or in part, as applicable, in the Collection Account on or
before the Business Day prior to the Optional Redemption Date. The Issuer shall
set the Optional Redemption Date and give notice thereof to the Indenture
Trustee, and the Insurer pursuant to Section 9.02 hereof.
SECTION 9.02 Notice to Indenture Trustee, and Insurer of Optional Redemption. In
the event of any optional redemption pursuant to Section 9.01, the Issuer shall,
at least 30 days prior to the proposed Optional Redemption Date but no more than
60 days prior to such date (unless the Indenture Trustee shall agree to a
shorter notice period), notify the Indenture Trustee, the Insurer and the
Servicers in writing of such Optional Redemption Date, the Aggregate Outstanding
Principal Amount to be redeemed on such Optional Redemption Date and the
Optional Redemption Price of such Aggregate Outstanding Principal Amount and as
further specified in Section 9.03 hereof and in accordance with Section 12.03
hereof.
SECTION 9.03 Notice of Optional Redemption or Maturity by the Issuer. (a) Upon
receipt of notice pursuant to Section 9.02, notice of such redemption of the
Notes shall be given by the Indenture Trustee to the Rating Agencies and the
Noteholders not less than 20 days prior to the scheduled Optional Redemption
Date.
(b) All notices of optional redemption shall state:
(1) the CUSIP number, Common Code or ISIN, as applicable, of the Notes to
be redeemed and that the Notes shall be redeemed on a pro rata basis,
based on the Aggregate Outstanding Principal Amount;
(2) the Optional Redemption Date;
(3) the Optional Redemption Price;
(4) in the case of an optional redemption in whole, that all the Notes are
being paid in full and that interest on such Notes shall cease to
accrue on the date specified in the notice, or, in the case of a
redemption in part, the amount of principal of each Note that will be
repaid and that interest on such amount of principal shall cease to
accrue on the date specified in the notice;
(5) in the case of an optional redemption in whole, the place or places
where such Notes to be redeemed in whole are to be surrendered for
payment of the Optional Redemption Price which shall be the office or
agency of the Issuer to be maintained as provided in Section 3.02; and
(6) that the redemption is subject to the satisfaction of certain
conditions set forth in this Indenture.
(c) The Issuer shall have the option to withdraw the notice of optional
redemption up to the fifth Business Day prior to the scheduled Optional
Redemption Date by written notice to the Indenture Trustee, , the Insurer and
the Servicers.
(d) [Reserved.]
(e) Notice of redemption shall be given by the Issuer or, at the Issuer's
request, by the Indenture Trustee in the name and at the expense of the Issuer.
Failure to give notice of redemption, or any defect therein, to any Holder of
any Note shall not impair or affect the validity of the redemption of any other
Notes.
SECTION 9.04 Notes Payable on Optional Redemption Date. (a) Notice of redemption
having been given as aforesaid, the Notes to be redeemed pursuant to an optional
redemption shall, on the Optional Redemption Date, become due and payable at the
Optional Redemption Price therein specified, and from and after the Optional
Redemption Date (unless the Issuer shall Default in the payment of the Optional
Redemption Price and accrued interest) such Notes shall cease to bear interest.
Upon final payment on a Note to be redeemed in full, the Holder shall present
and surrender such Note at the place specified in the notice of redemption on or
prior to such Optional Redemption Date; provided, however, that if there is
delivered to the Issuer, the Insurer, and the Indenture Trustee such security or
indemnity as may be required by them to save each of them harmless and an
undertaking thereafter to surrender such Note, then, in the absence of notice to
the Issuer, the Insurer or the Indenture Trustee that the applicable Note has
been acquired by a bona fide purchaser, such final payment shall be made without
presentation or surrender. Payments of interest on Notes so to be redeemed shall
be payable to the Holders of such Notes, or one or more predecessor Notes,
according to the terms and provisions of Section 2.07 hereof.
(b) If any Note called for redemption shall not be paid upon
surrender thereof for redemption, the principal thereof shall, until paid, bear
interest from the Optional Redemption Date at the Note Rate for each successive
Accrual Period the Note remains Outstanding.
(c) Upon the partial redemption of any Notes and the surrender
thereof, the Issuer shall to the extent necessary issue, and the Authenticating
Agent shall authenticate, new Notes equal to the Aggregate Outstanding Principal
Amount of the Notes not so redeemed.
SECTION 9.05 Mandatory Redemption. (a) The Notes are subject to mandatory
redemption, in whole or in part, at the Mandatory Redemption Price upon the
occurrence of any of the following events in the manner set forth below:
(i) If the Debt Service Coverage Ratio, on any Accounting Date is less than
or equal to 1.20 but greater than 1.10, then, on each Payment Date
following such Accounting Date, all funds remaining after the
application of Available Funds in accordance with Section 10.03(i)
through Section 10.03(vi) hereof, shall be applied to redeem Notes on a
pro rata basis, based on the Aggregate Outstanding Principal Amount of
the Notes held by each Noteholder. Such redemption of Notes on each
such Payment Date shall continue until the Debt Service Coverage Ratio
exceeds 1.20 and remains greater than 1.20 for six consecutive
Collection Periods.
(ii) If the Debt Service Coverage Ratio, on any Accounting Date, is less
than or equal to 1.10, then on each Payment Date following such
Accounting Date, (i) the sum of (A) all funds available after the
application of Available Funds in accordance with Section 10.03(i)
through Section 10.03(v) hereof, (B) all funds in the Debt Service
Reserve Account, and (C) all funds in the Seasonality Coverage Account,
shall be applied to redeem Notes on a pro rata basis, based on the
Aggregate Outstanding Principal Amount of the Notes held by each
Noteholder, until the Legal Final Payment Date of the Notes and (ii)
such occurrence shall constitute a Servicer Termination Event.
(iii) If an Indemnification Mandatory Redemption Event occurs, on the related
Payment Date, all Indemnification Amounts on deposit in the
Indemnification Account shall be released as Available Funds and shall
be applied to redeem Notes on a pro rata basis, based on the Aggregate
Outstanding Principal Amount of the Notes held by each Noteholder.
The Indenture Trustee shall give notice to the Noteholders of
the occurrence of any of the foregoing events as indicated in a monthly report
delivered to the Indenture Trustee by the Issuer.
(b) Upon the occurrence of an event leading to a mandatory redemption as
described in Sections 9.05(a)(i), 9.05(a)(ii) and 9.05(a)(iii) above, the
Aggregate Outstanding Principal Amount to be redeemed shall, on the Mandatory
Redemption Date, become due and payable at the Mandatory Redemption Price and
from and after such Mandatory Redemption Date (unless the Issuer shall Default
in the payment of the Mandatory Redemption Price and accrued interest) such
Notes shall cease to bear interest. Upon final payment on a Note to be redeemed
in full, the Holder shall present and surrender such Note at the office or
agency of the Issuer to be maintained as provided in Section 3.02 hereof on or
promptly following such Mandatory Redemption Date; provided, however, that if
there is delivered to the Issuer, the Insurer, and the Indenture Trustee such
security or indemnity as may be required by them to save each of them harmless
and an undertaking thereafter to surrender such Note, then, in the absence of
notice to the Issuer, the Insurer or the Indenture Trustee that the applicable
Note has been acquired by a bona fide purchaser, such final payment shall be
made without presentation or surrender. Payments of interest on Notes so to be
redeemed shall be payable to the Holders of such Notes, or one or more
predecessor Notes, according to the terms and provisions of Section 2.07 hereof.
If any Note called for redemption shall not be paid upon surrender thereof for
redemption, the principal thereof shall, until paid, bear interest from the
Mandatory Redemption Date at the Note Rate for each successive Accrual Period
the Note remains Outstanding. Upon the partial redemption of any Notes and the
surrender thereof, the Issuer shall to the extent necessary issue, and the
Authenticating Agent shall authenticate, new Notes equal to the Aggregate
Outstanding Principal Amount of the Notes not so redeemed.
ARTICLE TEN
COLLECTION OF FUNDS AND MAINTENANCE OF ACCOUNTS
SECTION 10.01 Segregation of Money. The Indenture Trustee shall segregate and
hold all money and property received by it in trust for the Noteholders and
shall apply it as provided in this Indenture.
SECTION 10.02 Collection Account; Canadian Sub-Account. (a) The Indenture
Trustee shall, prior to the Closing Date, establish a segregated trust account
at the corporate trust department of The Bank of New York in New York which
shall be held in trust in the name of the Indenture Trustee for the benefit of
the Secured Parties and designated as the Collection Account.
(i) Funds shall be deposited into the Collection Account immediately upon
the receipt thereof.
(ii) All monies deposited from time to time in the Collection Account
pursuant to this Indenture shall be held by the Indenture Trustee as
part of the Trust Estate and shall be applied for the purposes herein
provided.
The Issuer shall, prior to the Closing Date, establish a
sub-account of the Collection Account which shall be held in trust in the name
of the Indenture Trustee for the benefit of the Secured Parties at the corporate
trust department of the Royal Bank of Canada. The Canadian Servicer shall
deposit any Franchisee Payments (denominated in Canadian dollars) it receives
pursuant to any Canadian Franchise Agreements into such sub-account. On each
Payment Date, in accordance with the monthly report delivered to the Indenture
Trustee by the Issuer on the related Accounting Date, the Indenture Trustee
shall transfer to the Collection Account all funds then in such sub-account net
of the sum of (i) the Servicing Fee payable to the Canadian Servicer, (ii)
amounts constituting Excluded Fees and (iii) fees payable in connection with the
conversion of funds denominated in Canadian dollars to funds denominated in U.S.
dollars.
(b) All payments to be made from time to time by the Indenture Trustee to the
Holders of Notes out of funds in the Collection Account pursuant to this
Indenture shall be made by the Indenture Trustee according to the written
direction of the American Servicer. Upon the request of the American Servicer in
accordance with Section 2.2(b) of the American Servicing Agreement, the
Indenture Trustee shall be authorized to promptly withdraw on a weekly basis any
amounts necessary to pay any Advertising Fees or Canadian Advertising Fees. In
addition, the Indenture Trustee, shall, at the written direction of the American
Servicer in accordance with Section 2.2(b) of the American Servicing Agreement,
withdraw any amounts in the Collection Account which have been mistakenly
deposited in the Collection Account, which amounts are not part of the Trust
Estate (such amounts, "Misdirected Payments").
(c) Upon delivery of a Servicer Order, monies in the Collection Account shall be
invested and reinvested by the Indenture Trustee as directed in a Servicer Order
in one or more Eligible Investments. If the Indenture Trustee does not receive
such investment instructions for three consecutive Business Days, then upon the
next following Business Day, the Indenture Trustee shall invest and reinvest
such monies in Government Obligations. All income or other gain from such
investments shall be credited to such Collection Account and any loss resulting
from such investments shall be charged to such Collection Account. The Indenture
Trustee shall not in any way be held liable by reason of any insufficiency in
the Collection Account resulting from any loss on any Eligible Investment. If
such Servicer Order is received after 1:00 p.m. (New York time) on any Business
Day, the Indenture Trustee will have no obligation to make such investment on
such day but shall use its best efforts to make such investment on such day, and
in any event shall make such investment by the next Business Day.
SECTION 10.03 Disbursement of Monies from Collection Account. Distribution of
Available Funds. (a) On each Payment Date, Available Funds received with respect
to the related Collection Period to the extent available will be distributed in
the following order of priority:
(i) to the payment to the Industry Consultant, Independent Accountant, the
Insurer, the Principal Reinsurer, the SPE Administrator, Issuer
Trustee, the trustee of the IP Holder, the Issuer and the Indenture
Trustee, as applicable, of the SPV Operating Expenses (solely, with
respect to indemnities, on a pro rata basis in proportion to the total
indemnity amounts then payable to indemnitees, respectively) (including
any accrued and unpaid SPV Operating Expenses) as of such Payment Date;
(ii) to the Servicers, an amount equal to the Servicing Fees due on such
Payment Date, including any accrued and unpaid Servicing Fees as of
such Payment Date;
(iii) to the Insurer, an amount equal to the sum of (A) the Premium due under
the Insurance Agreement due on such Payment Date (including any accrued
and unpaid Premium) and (B) any Reimbursements owed to the Insurer
(including any accrued and unpaid Reimbursements);
(iv) to the Noteholders, an amount equal to the Interest Distribution
(including any Additional Interest, if any);
(v) to the Noteholders, an amount equal to the Principal Distribution;
(vi) if the Notes are not subject to a mandatory redemption pursuant to
Section 9.05(a)(ii) hereof, to the Debt Service Reserve Account, the
Cash Trap Reserve Amount;
(vii) to the Noteholders, in the event of a mandatory redemption, in whole
or in part, in accordance with Section 9.05 hereof, an amount
necessary to fund such mandatory redemption;
(viii) to the Noteholders, in the event of an optional redemption, in whole
or in part, in accordance with Section 9.01 hereof, an amount
necessary to fund such optional redemption;
(ix) to the Seasonality Coverage Account, the amount equal to the
Seasonality Deposit Amount;
(x) to each of the Industry Consultant, Independent Accountant, the Issuer
Trustee, the Issuer, the trustee of the IP Holder, the Insurer, the
Principal Reinsurer, the SPE Administrator and the Indenture Trustee,
as applicable and on a pro rata basis in proportion to the indemnity
amounts payable to them, respectively, the payment of the (A)
indemnities in excess of the prevailing cap on such indemnities and not
paid under clause (i) above, and (B) any indemnities accrued and unpaid
as of such Payment Date; and
(xi) to the Certificateholder, any remaining Available Funds.
(b) To the extent funds on deposit in the Collection Account
are insufficient to pay the Expected Priority Payments on any Payment Date, the
Trustee shall transfer to the Collection Account funds from the Seasonality
Coverage Account, in an amount sufficient to make the payment of the Expected
Priority Payments on such Payment Date, and to the extent necessary, after
application of such funds from the Seasonality Coverage Account, the Indenture
Trustee shall transfer funds from the Debt Service Reserve Account.
SECTION 10.04 Reports. Subject to the limitations set forth in this paragraph,
the Indenture Trustee shall supply in a timely fashion to the Issuer, the
Servicers, the Insurer, the Rating Agencies and the Noteholders any information
in the possession of the Indenture Trustee that the Issuer, the Servicers, the
Insurer, the Rating Agencies or any Noteholder may from time to time request in
writing with respect to the Franchise Assets and the Collection Account (which
shall include all officer's certificates) and accountants' reports delivered or
caused to be delivered by the Servicers to the Indenture Trustee as provided in
the Servicing Agreements). Such information shall be furnished by the office of
the Indenture Trustee so long as the Indenture Trustee is authorized to release
such information by the Issuer, provided that the Indenture Trustee is hereby
irrevocably authorized to release such information at all times to the Insurer.
The Indenture Trustee agrees to maintain all information received from the
Issuer or its Affiliates in a confidential manner and shall not disclose such
information except as specifically authorized by the Issuer in writing or as set
forth in the second following sentence. The Indenture Trustee acknowledges that
the information it may receive in the course of its duties hereunder may be
non-public in nature and should be safe-guarded with these concerns in mind. In
addition, the Indenture Trustee shall supply to the Rating Agencies and the
Noteholders to the extent available (a) a monthly report no later than the
Payment Date and (b) a quarterly report no later than 10 days after the receipt
thereof by the Indenture Trustee (such quarterly report together with the
monthly report referred to in clause (a), the "Reports"), in each case,
substantially in the forms attached hereto as Exhibit M.
Nothing herein shall obligate the Indenture Trustee, the
Issuer or the American Servicer to disclose any information regarding its
operations or business which is of a proprietary or confidential nature. The
Servicers shall supply to the Indenture Trustee and the Insurer in a timely
fashion any information in their possession regarding the Franchise Assets;
necessary to permit the Indenture Trustee to prepare the Reports or to perform
its other duties hereunder. Notwithstanding anything to the contrary herein, the
Indenture Trustee shall not be obligated to prepare a Report in the event that
the Servicers have not provided to the Indenture Trustee information necessary
to prepare such reports.
SECTION 10.05 [Reserved]
SECTION 10.06 Notices to the Insurer and the Rating Agencies. The Indenture
Trustee shall, promptly after receipt, deliver copies of the following documents
to the Insurer and the Rating Agencies or, as the case may be, give prior notice
to (and, if unable to give prior notice, to the extent the Indenture Trustee has
actual knowledge thereof, to notify promptly, and in any event within 10
Business Days after the occurrence thereof) the Insurer and the Rating Agencies
of the following events:
(a) any proposed amendment or supplement to this Indenture;
(b) the occurrence of an Event of Default under this Indenture;
(c) any resignation or removal of the Indenture Trustee or appointment of
a successor Indenture Trustee;
(d) any change in the Servicers;
(e) effectiveness of any supplemental indenture pursuant to Section 8.01
or 8.02;
(f) the Trust Termination Date;
(g) a copy of the annual financial statements of the Issuer;
(h) any redemption of Notes; and
(i) a substitution of debtor pursuant to Article Eleven.
SECTION 10.07 Debt Service Reserve Account. The Indenture Trustee shall, prior
to the Closing Date, establish a segregated account at the corporate trust
department of The Bank of New York in New York, which shall be held in trust in
the name of the Indenture Trustee for the benefit of the Secured Parties and
designated as the Debt Service Reserve Account. Any payments under Section
10.03(vi) of this Indenture on any Payment Date shall be deposited in the Debt
Service Reserve Account and invested in Eligible Investments as directed in
writing by the American Servicer pursuant to a Servicer Order. If the Indenture
Trustee does not receive investment instructions for three consecutive Business
Days after receipt of such deposit, the Indenture Trustee shall invest and
reinvest such monies in Government Obligations.
SECTION 10.08 Seasonality Coverage Account. The Indenture Trustee shall, prior
to the Closing Date, establish a segregated account at the corporate trust
department of The Bank of New York in New York, which shall be held in trust in
the name of the Indenture Trustee for the benefit of the Secured Parties and
designated as the Seasonality Coverage Account. Any payments under Section
10.03(ix) of this Indenture on any Payment Date shall be deposited in the
Seasonality Coverage Account and invested in Eligible Investments as directed in
writing by the American Servicer pursuant to a Servicer Order. If the Indenture
Trustee does not receive investment instructions for three consecutive Business
Days after receipt of such deposit, the Indenture Trustee shall invest and
reinvest such monies in Government Obligations.
SECTION 10.09 Indemnification Account. The Indenture Trustee shall, prior to the
Closing Date, establish a segregated account at the corporate trust department
of The Bank of New York in New York, which shall be held in trust in the name of
the Indenture Trustee for the benefit of the Secured Parties and designated as
the Indemnification Account. All Indemnification Amounts paid by XxxXx or
deducted on a current basis (at the option of the Issuer) from amounts owed on a
current basis to XxxXx, in its capacity as Certificateholder pursuant to Section
10.03(x) hereof, shall be deposited in the Indemnification Account and invested
in Eligible Investments as directed in writing by the American Servicer pursuant
to a Servicer Order. If the Indenture Trustee does not receive investment
instructions for three consecutive Business Days after receipt of such deposit,
the Indenture Trustee shall invest and reinvest such monies in Government
Obligations.
ARTICLE ELEVEN
SUBSTITUTION OF DEBTOR
SECTION 11.01 Conditions to Substitution. The Indenture Trustee shall, without
the consent of the Noteholders, agree with the Issuer and the Insurer (if it is
the Controlling Party) to the substitution in place of the Issuer (or of any
previously substituted Person under this Section), as the debtor in respect of
this Indenture, the Insurance Agreement and the Notes, of any other Person (the
"Substituted Person") in accordance with the provisions of this Article Eleven.
The Indenture Trustee shall agree with the Issuer and the Insurer (if it is the
Controlling Party) as to such substitution, and such substitution shall be
effected if the Insurer so directs in a Controlling Party Order (so long as it
is the Controlling Party), in the event that the Insurer reasonably believes
that such substitution would have the result of avoiding the imposition of, or
the lessening of, any present or future tax (including but not limited to any
withholding tax), assessment or other governmental charge on the Issuer, the
Collateral or the Notes; provided, however, that any such substitution shall be
effected only upon confirmation by each Rating Agency that such action would not
have an adverse effect upon the ratings of the Notes and upon satisfaction of
the Insurer Condition. The Indenture Trustee may also receive an Opinion of
Counsel, if requested by the Indenture Trustee, to such effect. Any substitution
pursuant to this Section 11.01 shall be subject to the preconditions that:
(a) an indenture is executed or some other form of undertaking is given by
the Substituted Person to the Indenture Trustee, the Issuer and the
Insurer in a form satisfactory to the Indenture Trustee, the Issuer and
the Insurer to be bound by the terms hereof and by the provisions of
the Notes and the other Transaction Documents to which the Issuer is a
party (with any consequential amendments which may be appropriate) as
fully as if the Substituted Person had been a party to this Indenture
and the other Transaction Documents to which the Issuer is a party and
named herein and in the Notes as the debtor in respect of the Notes in
place of the Issuer (or such previously Substituted Person as
aforesaid);
(b) the Substituted Person acquires the Issuer's rights to the Collateral,
acknowledges the security interest created in respect thereof pursuant
to this Indenture and takes all such action as the Indenture Trustee or
the Insurer may require so that the Collateral is subject to a security
interest in all respects corresponding to the security interest created
by the Issuer hereunder;
(c) (without prejudice to the generality of the foregoing provisions of
this Section) if the Substituted Person is incorporated, domiciled or
resident in a jurisdiction or jurisdictions other than Delaware, an
undertaking or covenant shall be given in terms corresponding to the
provisions of Section 2.11 hereof;
(d) the purposes and powers of the Substituted Person will be comparably
limited to those of the Issuer;
(e) the Indenture Trustee and the Insurer shall be satisfied that (A) all
governmental and regulatory approvals and consents necessary for or in
connection with the assumption by the Substituted Person of the
obligations hereunder and under the Notes and the other Transaction
Documents to which the Issuer is a party in place of the Issuer (or
such previously Substituted Person as aforesaid) and for the Policy to
continue to be in all respects in full force and effect have been
obtained and (B) such approvals and consents are at the time of
substitution in full force and effect; and
(f) the Issuer (or any previously Substituted Person under this Section)
and/or the Controlling Party and the Substituted Person shall (A)
execute such other deeds, documents and instruments (if any) as the
Indenture Trustee or the Insurer may reasonably require in order that
such substitution be fully effective and that the Policy remain in full
force and effect following such substitution, and (B) comply with such
other requirements in the interests of the Noteholders and the Insurer
as the Indenture Trustee or the Insurer may reasonably direct.
SECTION 11.02 No Regard to Consequences for Individual Holders. In the case of
any substitution in accordance with Section 11.01, the Indenture Trustee may in
its absolute discretion agree with the Issuer and the Insurer, without the
consent of the Noteholders, as to a change in the law expressed to govern this
Indenture and the Notes; provided that such change would not in the opinion of
the Indenture Trustee be materially prejudicial to the interests of the
Noteholders, including the maintenance of the then applicable ratings on the
Notes or to the interests of the Indenture Trustee (based upon, if requested by
the Indenture Trustee, an Officer's Certificate and an Opinion of Counsel
satisfactory to the Indenture Trustee). In connection with any proposed
substitution as aforesaid, the Indenture Trustee shall not have regard to the
consequences of such substitution for individual Noteholders resulting from
their being for any purpose domiciled or resident in, or otherwise connected
with, or subject to the jurisdiction of, any particular state, country or
territory. No Noteholder shall, in connection with any such substitution, be
entitled to claim from the Issuer, the Indenture Trustee, or the Insurer any
indemnification or payment in respect of any tax consequences of any such
substitution upon individual Noteholders, except to the extent provided for in
subsection (c) of Section 11.01.
SECTION 11.03 Effect of Substitution. Upon the execution of the documents and
compliance with the requirements set forth in Sections 11.01 and 11.02, the
Substituted Person shall be deemed to be named in this Indenture, in the Notes
and in the other Transaction Documents to which the Issuer is a party as the
debtor in place of the Issuer (or any previously Substituted Person under this
Article), and this Indenture and the Notes shall thereupon be deemed to be
amended in such manner as shall be necessary to give effect to such
substitution. Compliance with the requirements of Sections 11.01 and 11.02 shall
operate to release the Issuer (or such previously Substituted Person as
aforesaid) from all of its obligations as debtor in respect of the Notes
hereunder but without prejudice to the obligations of the Insurer under the
Policy. Not later than 10 days after the execution of any such undertaking and
such other documents and instruments as aforesaid and compliance with the said
requirements of the Indenture Trustee, the Issuer shall, unless the Indenture
Trustee agrees otherwise, give notice thereof to the Noteholders in accordance
with Section 12.04.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01 Form of Documents Delivered to Indenture Trustee. (a) In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
(b) Any Officer's Certificate may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel or a certificate of or representations by
such legal counsel, unless such Authorized Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate of an Authorized Officer of the Issuer or
Opinion of Counsel or certificate of or representations by such legal counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, the Issuer or any other Person, stating that
the information with respect to such factual matters is in the possession of the
Issuer or such other Person, unless such Authorized Officer of the Issuer or
counsel knows that the certificate or opinion or representations with respect to
such matters are erroneous. Any Opinion of Counsel may also be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Authorized Officer of the Issuer, stating that the
information with respect to such matters is in the possession of the Issuer,
unless such counsel knows that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 12.02 Governing Law. This Indenture and each Note shall be construed in
accordance with and governed by the laws of the State of New York, without
regard to principles of conflict of laws.
SECTION 12.03 Notices, Etc. to Indenture Trustee, Issuer, Insurer, the Ratings
Agencies and the Servicers. Unless otherwise expressly provided for herein, any
request, demand, authorization, direction, notice, consent or waiver of
Noteholders or other documents provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with:
(a) the Indenture Trustee by the Insurer or any Noteholder, or by the
Issuer shall be sufficient for every purpose hereunder if in writing
and if made, given, or sent by courier of international reputation to
the Indenture Trustee addressed to it at its Corporate Trust Office, or
at any other address furnished in writing to the Issuer, the Insurer or
Noteholder by the Indenture Trustee, or, as among the Issuer, the
Insurer and the Indenture Trustee, if sent via telecopier and confirmed
via overnight courier;
(b) the Issuer by the Indenture Trustee, the Insurer or by any Noteholder
shall be sufficient for every purpose hereunder if in writing and
sent by courier of international reputation to the Issuer, 0000
Xxxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000-0000, Attention:
General Counsel, Telecopy No.: (000) 000-0000, with a copy to
Triarc Companies, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel, Telecopy No.: (000) 000-0000, or at
any other address previously furnished in writing to the Indenture
Trustee and the Insurer, or, as among the Issuer, the Insurer and
the Indenture Trustee, if sent via telecopier and confirmed via
overnight courier;
(c) the Insurer by the Indenture Trustee, the Issuer or by any Noteholder
shall be sufficient for every purpose hereunder if in writing and sent
by courier of international reputation to the Insurer at Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Risk Management
Structured Finance and Credit Derivatives, Arby's Franchise Trust
7.44% Fixed Rate Insured Notes due December 20, 2020, Telecopy No.:
(000) 000-0000, provided that, in each case in which notice or other
communication to the Insurer refers to an Event of Default, a claim
on the Policy or with respect to which failure on the part of the
Insurer to respond shall be deemed to constitute consent or
acceptance, then a copy of such notice or other communication should
also be sent to the same address listed above but to the attention
of the General Counsel, or at any other address previously furnished
in writing to the Indenture Trustee and the Issuer, or as among
the Insurer, the Issuer and the Indenture Trustee, if sent via
telecopier and confirmed via overnight courier;
(d) the Rating Agencies by the Indenture Trustee if in writing and
mailed first-class postage prepaid to Xxxxx'x Investors Service,
Attention: Structured Finance Group, 00 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and Standard & Poor's Rating Services, Attention:
Structured Finance Ratings, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000;
(e) the American Servicer by the Issuer, the Insurer or the Indenture
Trustee shall be sufficient for every purpose hereunder if sent via
telecopier and confirmed via overnight courier to 0000 Xxxxxxxxx
Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000-0000, Attention: General
Counsel, Telecopy No.: (000) 000-0000, with a copy to Triarc Companies,
Inc. 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel, Telecopy No.: (000) 000-0000; and
(f) the Canadian Servicer by the Issuer, the Insurer or the Indenture
Trustee shall be sufficient for every purpose hereunder if sent via
telecopier and confirmed via overnight courier to 0000 Xxxxxxxxx
Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000-0000, Attention: General
Counsel, Telecopy No.: (000) 000-0000, with a copy to Triarc
Companies, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel, Telecopy No.: (000) 000-0000.
SECTION 12.04 Notices and Reports to Noteholders; Waiver of Notice. (a) Notices
Regarding the Global Notes. So long as Notes are represented by a Global Note
and such Global Note is held on behalf of a Clearance System, notices to
Noteholders may be given by delivery of the relevant notice to that Clearance
System for communication by it to entitled accountholders in substitution for
publication.
(b) Notices Regarding the Registered Notes. Notices to the
holders of the Registered Notes shall be given by first class mail, postage
prepaid, to the registered Holders of such Registered Notes at their address
appearing in the Note Register.
SECTION 12.05 Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the interpretation or construction of any provision hereof.
SECTION 12.06 Successors and Assigns. All covenants and agreements in this
Indenture by the Issuer shall bind its respective successors and assigns,
whether so expressed or not.
SECTION 12.07 Severability. In case any provision in this Indenture or in the
Notes 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 12.08 Benefits of Indenture. Nothing in this Indenture or in the Notes,
expressed or implied, shall give to any Person, other than the parties hereto,
the Servicers or the Secured Parties (if not a party hereto) and their
successors hereunder and the Noteholders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 12.09 Counterparts. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
SECTION 12.10 Submission to Jurisdiction. The Issuer hereby irrevocably submits
to the nonexclusive jurisdiction of any New York State or federal court sitting
in the Borough of Manhattan in The City of New York in any action or Proceeding
arising out of or relating to the Notes or this Indenture, and the Issuer hereby
irrevocably agrees that all claims in respect of such action or Proceeding may
be heard and determined in such New York State or federal court. The Issuer
hereby irrevocably waives, to the fullest extent it may legally do so, the
defense of an inconvenient forum to the maintenance of such action or Proceeding
and the right to trial by jury. The Issuer agrees that a final judgment in any
such action or Proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
The Issuer hereby irrevocably designates and appoints Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
the agent of the Issuer to receive on its behalf service of all process brought
against it with respect to any such Proceeding in any such court in the State of
New York, such service being hereby acknowledged by the Issuer to be effective
and binding on it in every respect. If for any reason such agent shall cease to
be available to act as such, then the Issuer shall promptly designate a new
agent in the City of New York.
SECTION 12.11 Resignation or Removal of a Servicer. Upon any resignation or
removal of the Servicer pursuant to the terms of each Servicing Agreement, the
Issuer shall appoint an institution which (i) has demonstrated an ability to
professionally and completely perform duties similar to those imposed upon such
Servicer, (ii) is legally qualified and has the capacity to act as a Servicer
and (iii) is approved by the Controlling Party.
SECTION 12.12 Calculations. Any calculations performed in connection with the
financial covenants set forth in Section 3.16 hereof, shall be made, to the
fifth decimal point, without giving effect to any rounding.
SECTION 12.13 Prescription. Claims for payment of principal and interest in
respect of any Note will not be enforceable unless such Note is presented for
payment within a period of ten years from the payment dates relating thereto.
SECTION 12.14 No Petition. By virtue of their acceptance of their rights
hereunder, none of the Secured Parties may petition or cause the Issuer to
petition for bankruptcy or winding up.
IN WITNESS WHEREOF, each of the undersigned has caused this
Indenture to be executed as a deed (in the case of the Issuer) by it or on its
behalf as of the year and date first above written.
Executed as a deed by:
ARBY'S FRANCHISE TRUST, as Issuer
By: Wilmington Trust Company, not in its
individual capacity but solely as Issuer
Trustee
By: W. XXXXX XXXXXXXXXX
------------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Assistant Vice President
Witness: AS
AMBAC ASSURANCE CORPORATION, as Insurer
By: XXXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
Witness: AR
BNY MIDWEST TRUST COMPANY, A BANK OF NEW
YORK COMPANY, not in its individual capacity
but solely as Indenture Trustee
By: XXXXX XXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
Witness: AS
