EXHIBIT 4.1(b)
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STANDARD PACIFIC CORP.
SENIOR SUBORDINATED DEBT SECURITIES
Indenture
Dated as of _______________, 1998
_____________, TRUSTEE
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TABLE OF CONTENTS
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ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE....................................... 1
Section 1.01. Definitions.............................................................. 1
Section 1.02. Other Definitions........................................................ 8
Section 1.03. Incorporation by Reference of Trust Indenture Act........................ 8
Section 1.04. Rules of Construction.................................................... 9
ARTICLE TWO THE SECURITIES................................................................... 9
Section 2.01. Form and Dating.......................................................... 9
Section 2.02. Execution and Authentication............................................. 11
Section 2.03. Registrar and Paying Agent............................................... 11
Section 2.04. Paying Agent to Hold Money in Trust...................................... 11
Section 2.05. Securityholder Lists..................................................... 12
Section 2.06. Transfer and Exchange.................................................... 12
Section 2.07. Replacement Securities................................................... 12
Section 2.08. Outstanding Securities................................................... 13
Section 2.09. Temporary Securities..................................................... 13
Section 2.10. Cancellation............................................................. 13
Section 2.11. Defaulted Interest....................................................... 13
Section 2.12. Treasury Securities...................................................... 14
Section 2.13. CUSIP Numbers............................................................ 14
Section 2.14. Deposit of Moneys........................................................ 14
Section 2.15. Book-Entry Provisions for Global Security................................ 14
ARTICLE THREE REDEMPTION..................................................................... 15
Section 3.01. Notices to Trustee....................................................... 15
Section 3.02. Selection of Securities to be Redeemed................................... 16
Section 3.03. Notice of Redemption..................................................... 16
Section 3.04. Effect of Notice of Redemption........................................... 16
Section 3.05. Deposit of Redemption Price.............................................. 17
Section 3.06. Securities Redeemed in Part.............................................. 17
ARTICLE FOUR COVENANTS....................................................................... 17
Section 4.01. Payment of Securities.................................................... 17
Section 4.02. Maintenance of Office or Agency.......................................... 17
Section 4.03. Compliance Certificate................................................... 17
Section 4.04. Payment of Taxes; Maintenance of Corporate Existence;
Maintenance of Properties................................................ 18
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Section 4.05. Limitation on Senior Subordinated Indebtedness........................... 18
ARTICLE FIVE SUCCESSOR CORPORATION........................................................... 19
Section 5.01. When Company May Merge, etc.............................................. 19
ARTICLE SIX DEFAULTS AND REMEDIES............................................................ 19
Section 6.01. Events of Default........................................................ 19
Section 6.02. Acceleration............................................................. 21
Section 6.03. Other Remedies........................................................... 21
Section 6.04. Waiver of Existing Defaults.............................................. 22
Section 6.05. Control by Majority...................................................... 22
Section 6.06. Limitation on Suits...................................................... 22
Section 6.07. Rights of Holders to Receive Payment..................................... 23
Section 6.08. Collection Suit by Trustee............................................... 23
Section 6.09. Trustee May File Proofs of Claim......................................... 23
Section 6.10. Priorities............................................................... 23
Section 6.11. Undertaking for Costs.................................................... 24
ARTICLE SEVEN TRUSTEE........................................................................ 24
Section 7.01. Duties of Trustee........................................................ 24
Section 7.02. Rights of Trustee........................................................ 25
Section 7.03. Individual Rights of Trustee............................................. 26
Section 7.04. Trustee's Disclaimer..................................................... 26
Section 7.05. Notice of Defaults....................................................... 26
Section 7.06. Reports by Trustee to Holders............................................ 26
Section 7.07. Compensation and Indemnity............................................... 28
Section 7.08. Replacement of Trustee................................................... 28
Section 7.09. Successor Trustee by Merger, etc......................................... 29
Section 7.10. Eligibility; Disqualification............................................ 29
Section 7.11. Preferential Collection of Claims Against Company........................ 29
ARTICLE EIGHT DISCHARGE OF INDENTURE......................................................... 29
Section 8.01. Defeasance upon Deposit of Moneys or U.S. Government
Obligations.............................................................. 29
Section 8.02. Survival of the Company's Obligations.................................... 32
Section 8.03. Application of Trust Money............................................... 33
Section 8.04. Repayment to the Company................................................. 33
Section 8.05. Reinstatement............................................................ 33
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS............................................. 34
Section 9.01. Without Consent of Holders............................................... 34
Section 9.02. With Consent of Holders.................................................. 34
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Section 9.03. Compliance with Trust Indenture Act..................................... 35
Section 9.04. Revocation and Effect of Consents....................................... 35
Section 9.05. Notation on or Exchange of Securities................................... 36
Section 9.06. Trustee to Sign Amendments, etc......................................... 36
ARTICLE TEN MISCELLANEOUS.................................................................... 36
Section 10.01. Trust Indenture Act Controls............................................ 36
Section 10.02. Notices................................................................. 36
Section 10.03. Communications by Holders with Other Holders............................ 37
Section 10.04. Certificate and Opinion as to Conditions Precedent...................... 37
Section 10.05. Statements Required in Certificate or Opinion........................... 38
Section 10.06. Rules by Trustee and Agents............................................. 38
Section 10.07. Legal Holidays.......................................................... 38
Section 10.08. Governing Law........................................................... 38
Section 10.09. No Adverse Interpretation of Other Agreements........................... 38
Section 10.10. No Recourse Against Others.............................................. 38
Section 10.11. Successors and Assigns.................................................. 39
Section 10.12. Duplicate Originals..................................................... 39
Section 10.13. Severability............................................................ 39
ARTICLE ELEVEN SUBORDINATION OF SECURITIES................................................... 39
Section 11.01. Securities Subordinated to Senior Indebtedness.......................... 39
Section 11.02. No Payment on Securities in Certain Circumstances....................... 39
Section 11.03. Payment Over of Proceeds upon Dissolution, etc.......................... 40
Section 11.04. Subrogation............................................................. 41
Section 11.05. Obligations of Company Unconditional.................................... 42
Section 11.06. Notice to Trustee....................................................... 42
Section 11.07. Reliance on Judicial Order or Certificate of Liquidating
Agent................................................................... 43
Section 11.08. Trustee's Relation to Senior Indebtedness............................... 43
Section 11.09. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness........................... 44
Section 11.10. Securityholders Authorize Trustee To Effectuate
Subordination of Securities............................................. 44
Section 11.11. This Article Not to Prevent Events of Default........................... 44
Section 11.12. Trustee's Compensation Not Prejudiced................................... 44
Section 11.13. No Waiver of Subordination Provisions................................... 45
Section 11.14. Certain Payments May Be Paid Prior to Dissolution....................... 45
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CROSS-REFERENCE TABLE
This Cross-Reference Table is not a part of the Indenture.
TIA Indenture Section Section
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310(a)(1).................................................... 7.10
(a)(2)....................................................... 7.10
(a)(3)....................................................... N.A.
(a)(4)....................................................... N.A.
(b).......................................................... 7.08; 7.10; 9.02
310(a)....................................................... 7.10
(b).......................................................... 7.10
(c).......................................................... N.A.
312(a)....................................................... 2.05
(b).......................................................... 9.03
(c).......................................................... 9.03
313(a)....................................................... 7.06
(b)(1)....................................................... N.A.
(b)(2)....................................................... 7.06
(c).......................................................... 9.02
(d).......................................................... 7.06
314(a)....................................................... 4.02; 9.02
(b).......................................................... N.A.
(c)(1)....................................................... 9.04
(c)(2)....................................................... 9.04
(c)(3)....................................................... N.A.
(d).......................................................... N.A.
(e).......................................................... 9.05
315(a)....................................................... 7.01(b)
(b).......................................................... 7.05; 9.02
(c).......................................................... 7.01(a)
(d).......................................................... 7.01(c)
(e).......................................................... 6.10
316(a)(last sentence)........................................ 9.06
(a)(1)(A).................................................... 6.05
(a)(1)(B).................................................... 6.04
(a)(2)....................................................... N.A.
(b).......................................................... 6.07
317(a)(1).................................................... 6.08
(a)(2)....................................................... 6.09
(b).......................................................... 2.04
318(a)....................................................... 9.01
N.A. means Not Applicable.
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INDENTURE dated as of _________________, 1998, by and between STANDARD
PACIFIC CORP., a Delaware corporation (the "Company"), and _______________ (the
"Trustee"). Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's debt
securities issued under this Indenture (the "Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Affiliate" means, when used with reference to a specified person, any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Person specified.
"Agent" means any Registrar, Paying Agent or co-Registrar or agent for
service of notices and demands.
"Attributable Debt" means, with respect to any Capitalized Lease
Obligations, the capitalized amount thereof determined in accordance with GAAP.
"Authorizing Resolution" means a resolution adopted by the Board of
Directors or by an Officer or committee of Officers pursuant to Board delegation
authorizing a Series of Securities.
"Bankruptcy Law" means title 11 of the United States Code, as amended, or
any similar federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee thereof.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of or in
such Person's capital stock or other equity interests, and options, rights or
warrants to purchase such capital stock or other equity interests, whether now
outstanding or issued after the applicable Issue Date, including, without
limitation, all Disqualified Stock and Preferred Stock.
"Capitalized Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligations will be the capitalized amount thereof determined in
accordance with GAAP.
"Change of Control Provisions" has the meaning set forth in the definition
of "Disqualified Stock" below.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to the Indenture and thereafter means the successor.
"Currency Agreement" of any Person means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect such Person or any of its Subsidiaries against fluctuations in currency
values.
"Default" means any event, act or condition that is, or after notice or the
passage of time or both would be, an Event of Default.
"Designated Senior Indebtedness" means any Senior Indebtedness which, at
the time of determination, has an aggregate principal amount outstanding of at
least $_____ million if the instrument governing such Senior Indebtedness
expressly states that such Indebtedness is "Designated Senior Indebtedness" for
purposes of this Indenture and a Board Resolution setting forth such designation
by the Company has been filed with the Trustee.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (i) matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
final maturity date of the Securities of the applicable Series or (ii) is
convertible into or exchangeable or exercisable for (whether at the option of
the issuer or the holder thereof) (a) debt securities or (b) any Capital Stock
referred to in (i) above, in each case, at any time prior to the final maturity
date of the Securities of the applicable Series; provided, however, that any
Capital Stock that would not constitute Disqualified Stock but for provisions
thereof giving holders thereof (or the holders of any security into or for which
such Capital Stock is convertible, exchangeable or exercisable) the right to
require the Company to repurchase or redeem such Capital Stock upon the
occurrence of a change in control occurring prior to the final maturity date of
the Securities of the applicable Series shall not constitute Disqualified Stock
if the change in control provisions applicable to such Capital Stock are no more
favorable to such holders than any provisions described in the Authorizing
Resolution or supplemental indenture pertaining to the Securities of the
applicable Series ("Change of Control Provisions") and such Capital Stock
specifically provides that the Company will not repurchase or redeem any such
Capital Stock pursuant to such provisions prior to the Company's repurchase of
the Securities of the applicable Series to the extent required pursuant to any
such Change of Control Provisions.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as in effect on the date of this Indenture.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
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"Indebtedness" of any Person means, without duplication, (i) any liability
of such Person (a) for borrowed money or under any reimbursement obligation
relating to a letter of credit or other similar instruments (other than standby
letters of credit issued for the benefit of or surety, performance, completion
or payment xxxxx, xxxxxxx money notes or similar purpose undertakings or
indemnifications issued by, such Person in the ordinary course of business), (b)
evidenced by a bond, note, debenture or similar instrument (including a purchase
money obligation) given in connection with the acquisition of any businesses,
properties or assets of any kind or with services incurred in connection with
capital expenditures (other than any obligation to pay a contingent purchase
price which, as of the date of incurrence thereof is not required to be re
corded as a liability in accordance with GAAP), or (c) in respect of Capitalized
Lease Obligations (to the extent of the Attributable Debt in respect thereof),
(ii) any Indebtedness of others that such Person has guaranteed to the extent of
the guarantee, (iii) to the extent not otherwise included, the obligations of
such Person under Currency Agreements or Interest Protection Agreements to the
extent recorded as liabilities not constituting Interest Incurred, net of
amounts recorded as assets in respect of such agreements, in accordance with
GAAP, and (iv) all Indebtedness of others secured by a Lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person; provided,
that Indebtedness shall not include accounts payable, liabilities to trade
creditors of such Person or other accrued expenses arising in the ordinary
course of business. The amount of Indebtedness of any Person at any date shall
be (a) the outstanding balance at such date of all unconditional obligations as
described above, net of any unamortized discount to be accounted for as Interest
Expense, in accordance with GAAP, (b) the maximum liability of such Person for
any contingent obligations under clause (ii) above at such date, net of, any
unamortized discount to be accounted for as Interest Expense in accordance with
GAAP and (c) in the case of clause (iv) above, the lesser of (1) the fair market
value of any asset subject to a Lien securing the Indebtedness of others on the
date that the Lien attaches and (2) the amount of the Indebtedness secured.
"Indenture" means this Indenture as amended or supplemented from time to
time, including pursuant to any Authorizing Resolution or supplemental indenture
pertaining to any Series.
"Insolvency or Liquidation Proceeding" means, with respect to any Person,
any liquidation, dissolution or winding up of such Person, or any bankruptcy,
reorganization, insolvency, receivership or similar proceeding with respect to
such Person, whether voluntary or involuntary.
"Interest Expense" of any Person for any period means, without duplication,
the aggregate amount of (i) interest which, in conformity with GAAP, would be
set opposite the caption "interest expense" or any like caption on an income
statement for such Person (including, without limitation, imputed interest
included in Capitalized Lease Obligations, all commissions, discounts and other
fees and charges owned with respect to letters of credit and bankers' acceptance
financing, the net costs (but reduced by net gains) associated with Currency
Agreements and Interest Protection Agreements, amortization of other financing
fees and expenses, the interest portion of any deferred payment obligation,
amortization of discount or premium, if any, and all other noncash interest
expense other than interest and other charges amortized to cost of sales), and
(ii) all interest actually paid by the Company or a Restricted
3
Subsidiary under any guarantee of Indebtedness (including, without limitation, a
guarantee of principal, interest or any combination thereof) of any Person other
than the Company or any Restricted Subsidiary during such period; provided, that
Interest Expense shall exclude any expense associated with the complete write-
off of financing fees and expenses in connection with the repayment of any
Indebtedness.
"Interest Protection Agreement" of any Person means any interest rate swap
agreement, interest rate collar agreement, option or futures contract or other
similar agreement or arrangement designed to protect such Person or any of its
Subsidiaries against fluctuations in interest rates with respect to Indebtedness
permitted to be incurred under this Indenture.
"Investments" of any Person means (i) all investments by such Person in any
other Person in the form of loans, advances or capital contributions, (ii) all
guarantees of Indebtedness or other obligations of any other Person by such
person, (iii) all purchases (or other acquisitions for consideration) by such
Person of Indebtedness, Capital Stock or other securities of any other Person
and (iv) all other items that would be classified as investments in any other
Person (including, without limitation, purchases of assets outside the ordinary
course of business) on a balance sheet of such Person prepared in accordance
with GAAP.
"Issue Date" means, with respect to any Series of Securities, the date on
which the Securities of such Series are originally issued under this Indenture.
"Lien" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this definition, a Person shall be deemed to own,
subject to a Lien, any Property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such Property.
"Non-Recourse Indebtedness" with respect to any Person means Indebtedness
of such Person for which (i) the sole legal recourse for collection of principal
and interest on such Indebtedness is against the specific property identified in
the instruments evidencing or securing such Indebtedness and such property was
acquired with the proceeds of such Indebtedness or such Indebtedness was
incurred within 90 days after the acquisition of such property and (ii) no other
assets of such Person may be realized upon in collection of principal or
interest on such Indebtedness. Indebtedness which is otherwise Non-Recourse
Indebtedness will not lose its character as Non-Recourse Indebtedness because
there is recourse to the borrower, any guarantor or any other Person for (i)
environmental warranties and indemnities, or (ii) indemnities for and
liabilities arising from fraud, misrepresentation, misapplication or non-payment
of rents, profits, insurance and condemnation proceeds and other sums actually
received by the borrower from secured assets to be paid to the lender, waste and
mechanics' liens.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Controller or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or an Assistant Secretary of the Company.
4
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Permitted Junior Securities" means any securities of the Company or any
other Person that are (i) equity securities or (ii) subordinated in right of
payment to all Senior Indebtedness that may at the time be outstanding, to
substantially the same extent as, or to a greater extent than, the Securities
are subordinated as provided in this Indenture, in any event pursuant to a court
order so providing and as to which (a) the rate of interest on such securities
shall not exceed the effective rate of interest on the Securities on the date of
this Indenture, (b) such securities shall not be entitled to the benefits of
covenants or defaults materially more beneficial to the holders of such
securities than those in effect with respect to the Securities on the date of
this Indenture and (c) such securities shall not provide for amortization
(including sinking fund and mandatory prepayment provisions) commencing prior to
the date six months following the final scheduled maturity date of the Senior
Indebtedness (as modified by the plan of reorganization or readjustment pursuant
to which such securities are issued).
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, incorporated or unincorporated association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Post-Petition Interest" means, with respect to any Senior Indebtedness of
any Person, all interest accrued or accruing on such Indebtedness after the
commencement of any Insolvency or Liquidation Proceeding against such Person in
accordance with and at the contract rate (including, without limitation, any
rate applicable upon default) specified in the agreement or instrument creating,
evidencing or governing such Indebtedness, whether or not, pursuant to
applicable law or otherwise, the claim for such interest is allowed as a claim
in such Insolvency or Liquidation Proceeding.
"Preferred Stock" of any Person means all Capital Stock of such Person
which has a preference in liquidation or with respect to the payment of
dividends.
"principal" of a debt security means the principal of the security plus,
when appropriate, the premium, if any, on the security.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person, whether or not included in
the most recent consolidated balance sheet of such Person and its Subsidiaries
under GAAP.
"Restricted Subsidiary" means any Subsidiary of the Company which is not an
Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission or any successor agency
performing the duties now assigned to it under the TIA.
"Securities" means any Securities that are issued under this Indenture.
5
"Senior Indebtedness" means, at any date, (a) all Indebtedness of the
Company for borrowed money, including principal, premium, if any, and interest
(including Post-Petition Interest) on such Indebtedness, unless the instrument
under which such Indebtedness of the Company for money borrowed is incurred
expressly provides that such Indebtedness for money borrowed is not senior or
superior in right of payment to the Securities of the applicable Series, and all
renewals, extensions, modifications, amendments or refinancings thereof; (b) all
obligations of the Company under Interest Protection Agreements, and (c) all
obligations of the Company under Currency Agreements. Notwithstanding the
foregoing, Senior Indebtedness shall not include (a) to the extent that it may
constitute Indebtedness, any obligation for federal, state, local or other
taxes; (b) any Indebtedness between the Company and any Subsidiary of the
Company; (c) to the extent that it may constitute Indebtedness, any obligation
in respect of any trade payable incurred for the purchase of goods or materials,
or for services obtained, in the ordinary course of business; (d) that portion
of any Indebtedness that is incurred in violation of this Indenture; (e)
Indebtedness evidenced by the Securities; (f) Indebtedness of the Company that
is expressly subordinate or junior in right of payment to any other Indebtedness
of the Company; (g) to the extent that it may constitute Indebtedness, any
obligation owing under leases (other than Capitalized Lease Obligations); and
(h) any obligation that by operation of law is subordinate to any general
unsecured obligations of the Company.
"Series" means a series of Securities established under this Indenture.
"Significant Subsidiary" means any Subsidiary of the Company which would
constitute a "significant subsidiary" as defined in Rule 1.02 of Regulation S-X
under the Securities Act and the Exchange Act.
"Subsidiary" of any Person means any corporation or other entity of which a
majority of the Capital Stock having ordinary voting power to elect a majority
of the Board of Directors or other persons performing similar functions is at
the time directly or indirectly owned or controlled by such Person.
"TIA" means the Trust Indenture Act of 1939, as in effect from time to
time.
"Trustee" means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture and thereafter means the successor
serving hereunder.
"Trust Officer" means the Chairman of the Board, the President, any Vice
President or any other officer or assistant officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
"United States" means the United States of America.
"U.S. government obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case are not callable or redeemable at the
option of the issuer
6
thereof, and shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such U.S. government obligations or a
specific payment of interest on or principal of any such U.S. government
obligation held by such custodian for the account of the holder of a depositary
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the
U.S. government obligation or the specific payment of interest on or principal
of the U.S. government obligation evidenced by such depositary receipt.
"Unrestricted Subsidiary" means any Subsidiary of the Company so designated
by a resolution adopted by the Board of Directors of the Company as provided
below; provided that (a) the holders of Indebtedness thereof do not have direct
or indirect recourse against the Company or any Restricted Subsidiary, and
neither the Company nor any Restricted Subsidiary otherwise has liability, for
any payment obligations in respect of such Indebtedness (including any
undertaking, agreement or instrument evidencing such Indebtedness), except, (i)
in each case, to the extent that the amount thereof constitutes a "restricted
payment" permitted to be made under any provisions set forth limiting the making
or paying of a "restricted payment" under the Authorizing Resolution or
supplemental indenture pertaining to an applicable Series ("Restricted Payment
Provisions"), (ii) in the case of Non-Recourse Indebtedness, to the extent such
recourse or liability is for the matters discussed in the last sentence of the
definition of "Non-Recourse Indebtedness," or (iii) to the extent such
Indebtedness is a guarantee by such Subsidiary of Indebtedness of the Company or
a Restricted Subsidiary and (b) no holder of any Indebtedness of such Subsidiary
shall have a right to declare a default on such Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity as a
result of a default on any Indebtedness of the Company or any Restricted
Subsidiary. Subject to the foregoing, the Board of Directors of the Company may
designate any Subsidiary to be an Unrestricted Subsidiary; provided, however,
that (i) the net amount (the "Designation Amount") then outstanding of all
previous Investments by the Company and the Restricted Subsidiaries in such
Subsidiary will be deemed to be a "restricted payment" pursuant to any
Restricted Payment Provisions at the time of such designation and will reduce
the amount available for other restricted payments under any Restricted Payment
Provisions, to the extent provided therein, (ii) the Company must be permitted
under any Restricted Payment Provisions to make the "restricted payment" deemed
to have been made pursuant to clause (i), and (iii) after giving effect to such
designation, no Default or Event of Default shall have occurred and be
continuing. The Board of Directors of the Company may also redesignate an
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that
(i) the Indebtedness of such Unrestricted Subsidiary as of the date of such
redesignation could then be incurred under any provisions set forth limiting the
incurrence of Indebtedness under the Authorizing Resolution or supplemental
indenture pertaining to an applicable Series ("Debt Limitation Provisions"),
(ii) immediately after giving effect to such redesignation and the incurrence of
any such additional Indebtedness, the Company and the Restricted Subsidiaries
could incur $1.00 of additional Indebtedness under any debt incurrence covenant
ratio set forth in any Debt Limitation Provisions and (iii) the Liens of such
Unrestricted Subsidiary as of the date of such redesignation could then be
incurred in accordance with any provisions set forth limiting the creation or
existence of Liens under the Authorizing Resolution or supplemental indenture
pertaining to an applicable Series ("Lien Limitation Provisions"). Any
7
such designation or redesignation by the Board of Directors of the Company will
be evidenced to the Trustee by the filing with the Trustee of a certified copy
of the resolution of the Board of Directors of the Company giving effect to such
designation or redesignation and an Officers' Certificate certifying that such
designation or redesignation complied with the foregoing conditions and setting
forth the underlying calculations of such Officers' Certificate. The designation
of any Person as an Unrestricted Subsidiary shall be deemed to include a
designation of all Subsidiaries of such Person as Unrestricted Subsidiaries;
provided, however, that the ownership of the general partnership interest or a
similar member's interest in a limited liability company by an Unrestricted
Subsidiary shall not cause a Subsidiary of the Company of which more than 95% of
the equity interest is held by the Company or one or more Restricted
Subsidiaries to be deemed an Unrestricted Subsidiary.
Section 1.02. Other Definitions.
-----------------
Term Defined in
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"Agent Members" 2.15
"Business Day" 11.07
"Custodian" 6.01
"Depository" 2.15
"Event of Default" 6.01
"Legal Holiday" 11.07
"Paying Agent" 2.03
"Registrar" 2.03
Section 1.03. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities of a Series.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings so assigned to them.
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Section 1.04. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE TWO
THE SECURITIES
Section 2.01. Form and Dating. The aggregate principal amount of
---------------
Securities that may be issued under this Indenture is unlimited. The Securities
may be issued from time to time in one or more Series. Each Series shall be
created by an Authorizing Resolution or a supplemental indenture that
establishes the terms of the Series, which may include the following:
(1) the title of the Series;
(2) the aggregate principal amount (or any limit on the aggregate
principal amount) of the Series and, if any Securities of a Series are
to be issued at a discount from their face amount, the method of
computing the accretion of such discount;
(3) the interest rate or method of calculation of the interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Securities of the Series;
(6) the dates when, places where and manner in which principal and
interest are payable;
(7) the Registrar and Paying Agent;
(8) the terms of any mandatory (including any sinking fund requirements)
or optional redemption by the Company;
(9) the terms of any redemption at the option of Holders;
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(10) the denominations in which Securities are issuable;
(11) whether Securities will be issued in registered or bearer form and the
terms of any such forms of Securities;
(12) whether any Securities will be represented by a global Security and
the terms of any such global Security;
(13) the currency or currencies (including any composite currency) in which
principal or interest or both may be paid;
(14) if payments of principal or interest may be made in a currency other
than that in which Securities are denominated, the manner for
determining such payments;
(15) provisions for electronic issuance of Securities or issuance of
Securities in uncertificated form;
(16) any Events of Default, covenants and/or defined terms in addition to
or in lieu of those set forth in this Indenture;
(17) whether and upon what terms Securities may be defeased if different
from the provisions set forth in this Indenture;
(18) the form of the Securities, which, unless the Authorizing Resolution
or supplemental indenture otherwise provides, shall be in the form of
Exhibit A;
(19) any terms that may be required by or advisable under applicable law;
(20) the percentage of the principal amount of the Securities which is
payable if the maturity of the Securities is accelerated in the case
of Securities issued at a discount from their face amount;
(21) whether any Securities will have guarantees; and
(22) any other terms in addition to or different from those contained in
this Indenture.
All Securities of one Series need not be issued at the same time and,
unless otherwise provided, a Series may be reopened for issuances of additional
Securities of such Series pursuant to an Authorizing Resolution, an Officers'
Certificate or in any indenture supplemental hereto. The creation and issuance
of a Series and the authentication and delivery thereof are not subject to any
conditions precedent.
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Section 2.02. Execution and Authentication.
----------------------------
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue upon receipt
of an Officers' Certificate of the Company. Each Security shall be dated the
date of its authentication.
Section 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency where Securities may be presented for payment ("Paying Agent") and an
office or agency where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co-Registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall promptly notify the
Trustee in writing of the name and address of any such Agent and the Trustee
shall have the right to inspect the Securities register at all reasonable times
to obtain copies thereof, and the Trustee shall have the right to rely upon such
register as to the names and addresses of the Holders and the principal amounts
and certificate numbers thereof. If the Company fails to maintain a Registrar
or Paying Agent or fails to give the foregoing notice, the Trustee shall act as
such.
The Company initially appoints the Trustee as Registrar and Paying Agent.
Section 2.04. Paying Agent to Hold Money in Trust.
-----------------------------------
Each Paying Agent shall hold in trust for the benefit of Securityholders
and the Trustee all money held by the Paying Agent for the payment of principal
of or interest on the Securities, and shall notify the Trustee of any default by
the Company in making any such payment. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate the money and hold it as a separate trust fund.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon doing so the Paying Agent shall have no further liability
for the money.
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Section 2.05. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least 7 Business Days before each semiannual interest payment
date and at such other times as the Trustee may request in writing a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Securityholders.
Section 2.06. Transfer and Exchange.
---------------------
Where a Security is presented to the Registrar or a co-Registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(1) of the New York Uniform
Commercial Code are met. Where Securities are presented to the Registrar or a
co-Registrar with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit transfers and exchanges,
the Trustee shall authenticate Securities at the Registrar's request. The
Registrar need not transfer or exchange any Security selected for redemption,
except the unredeemed part thereof if the Security is redeemed in part, or
transfer or exchange any Securities for a period of 15 days before a selection
of Securities to be redeemed. Any exchange or transfer shall be without charge,
except that the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto except in
the case of exchanges pursuant to 2.09, 3.06, or 9.05 not involving any
transfer.
Any Holder of a global Security shall, by acceptance of such global
Security, agree that transfers of beneficial interests in such global Security
may be effected only through a book entry system maintained by the Holder of
such global Security (or its agent), and that ownership of a beneficial interest
in the Security shall be required to be reflected in a book entry.
Section 2.07. Replacement Securities.
----------------------
If the Holder of a Security claims that the Security has been lost,
destroyed, mutilated or wrongfully taken, the Company shall issue and, upon
written request of any Officer of the Company, the Trustee shall authenticate a
replacement Security, provided in the case of a lost, destroyed or wrongfully
taken Security, that the requirements of Section 8-405 of the New York Uniform
Commercial Code are met. If any such lost, destroyed, mutilated or wrongfully
taken Security shall have matured or shall be about to mature, the Company may,
instead of issuing a substitute Security therefor, pay such Security without
requiring (except in the case of a mutilated Security) the surrender thereof.
An indemnity bond must be sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee or any Agent from any loss which any
of them may suffer if a Security is replaced, including the acquisition of such
Security by a bona fide purchaser. The Company or the Trustee may charge for
its expenses in replacing a Security.
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Section 2.08. Outstanding Securities.
----------------------
Securities outstanding at any time are all Securities authenticated by the
Trustee except for those cancelled by it and those described in this Section. A
Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security. If a Security is replaced pursuant to Section
2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory
to it that the replaced Security is held by a bona fide purchaser. If the
Paying Agent holds on a redemption date or maturity date money sufficient to pay
Securities payable on that date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 2.09. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and, upon surrender for
cancellation of the temporary Security, the Company shall execute and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
authenticated and delivered hereunder.
Section 2.10. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange,
redemption or payment. The Trustee and no one else shall cancel and destroy, or
retain in accordance with its standard retention policy, all Securities
surrendered for registration or transfer, exchange, redemption, paying or
cancellation. Unless the Authorizing Resolution so provides, the Company may
not issue new Securities to replace Securities that it has previously paid or
delivered to the Trustee for cancellation.
Section 2.11. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest plus any interest payable on the defaulted
interest to the persons who are Securityholders on a subsequent special record
date. The Company shall fix such special record date and a payment date which
shall be reasonably satisfactory to the Trustee. At least 15 days before such
special record date, the Company shall mail to each Securityholder a notice that
states the record date, the payment date and the amount of defaulted interest to
be paid. On or before the date such notice is mailed, the Company shall deposit
with the Paying Agent money
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sufficient to pay the amount of defaulted interest to be so paid. The Company
may pay defaulted interest in any other lawful manner if, after notice given by
the Company to the Trustee of the proposed payment, such manner of payment shall
be deemed practicable by the Trustee.
Section 2.12. Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any direction, waiver, consent or
notice, Securities owned by the Company or any of its Affiliates shall be
considered as though they are not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee actually knows
are so owned shall be so considered.
Section 2.13. CUSIP Numbers.
-------------
The Company in issuing the Securities of any Series may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders of such Securities; provided
that no representation is hereby deemed to be made by the Trustee as to the
correctness or accuracy of any such CUSIP number printed in the notice or on
such Securities, and that reliance may be placed only on the other
identification numbers printed on such Securities. The Company shall promptly
notify the Trustee of any change in any CUSIP number.
Section 2.14. Deposit of Moneys.
-----------------
Prior to 11:00 a.m. New York City time on each interest payment date and
maturity date with respect to each Series of Securities, the Company shall have
deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments due on such interest payment date or maturity date, as the
case may be, in a timely manner which permits the Paying Agent to remit payment
to the Holders on such interest payment date or maturity date, as the case may
be.
Section 2.15. Book-Entry Provisions for Global Security.
-----------------------------------------
(a) Any global Security of a Series initially shall (i) be registered
in the name of the depository who shall be identified in the Authorizing
Resolution or supplemental indenture relating to such Securities (the
"Depository") or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear any required legends.
Members of, or participants in, the Depository ("Agent Members") shall have no
rights under this Indenture with respect to any global Security held on their
behalf by the Depository, or the Trustee as its custodian, or under the global
Security, and the Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as
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between the Depository and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any Security.
(b) Transfers of any global Security shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the global Security may be
transferred or exchanged for definitive Securities in accordance with the rules
and procedures of the Depository. In addition, definitive Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in a global Security if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for the global Security and a
successor depository is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depository to issue definitive
Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more definitive Securities are to
be issued) reflect on its books and records the date and a decrease in the
principal amount of the global Security in an amount equal to the principal
amount of the beneficial interest in the global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more definitive Securities of like tenor and amount.
(d) In connection with the transfer of an entire global Security to
beneficial owners pursuant to paragraph (b), the global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
the global Security, an equal aggregate principal amount of definitive
Securities of authorized denominations.
(e) The Holder of any global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities of such Series.
ARTICLE THREE
REDEMPTION
Section 3.01. Notices to Trustee.
------------------
Securities of a Series that are redeemable prior to maturity shall be
redeemable in accordance with their terms and, unless the Authorizing Resolution
or supplemental indenture provides otherwise, in accordance with this Article.
If the Company wants to redeem Securities pursuant to Paragraph 5 of the
Securities, it shall notify the Trustee in writing of the Redemption Date and
the principal amount of Securities to be redeemed. Any such notice may be
cancelled at any time prior to notice of such redemption
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being mailed to Holders. Any such cancelled notice shall be void and of no
effect. If the Company wants to credit any Securities previously redeemed,
retired or acquired against any redemption pursuant to Paragraph 6 of the
Securities, it shall notify the Trustee of the amount of the credit and it shall
deliver any Securities not previously delivered to the Trustee for cancellation
with such notice.
The Company shall give each notice provided for in this Section 3.01 at
least 30 days before the notice of any such redemption is to be mailed to
Holders (unless a shorter notice shall be satisfactory to the Trustee).
Section 3.02. Selection of Securities to be Redeemed.
--------------------------------------
If fewer than all of the Securities of a Series are to be redeemed, the
Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate. The Trustee shall make the selection from
Securities outstanding not previously called for redemption and shall promptly
notify the Company of the serial numbers or other identifying attributes of the
Securities so selected. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than the minimum
denomination for the Series. Securities and portions of them it selects shall
be in amounts equal to the minimum denomination for the Series or an integral
multiple thereof. Provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for redemption.
Section 3.03. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail, postage prepaid,
to each Holder of Securities to be redeemed. The notice shall identify the
Securities to be redeemed and shall state: (1) the redemption date; (2) the
redemption price; (3) the name and address of the Paying Agent; (4) that
Securities called for redemption must be surrendered to the Paying Agent to
collect the redemption price; (5) that interest on Securities called for
redemption ceases to accrue on and after the redemption date; and (6) that the
Securities are being redeemed pursuant to the mandatory redemption or the
optional redemption provisions, as applicable. At the Company's request, the
Trustee shall give the notice of redemption in the Company's name and at its
expense; provided, however, that the Company shall deliver to the Trustee at
least 15 days prior to the date on which notice of redemption is to be mailed or
such shorter period as may be satisfactory to the Trustee, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price as set
forth in the notice of redemption. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price, plus accrued interest to the
redemption date.
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Section 3.05. Deposit of Redemption Price.
---------------------------
On or before the redemption date, the Company shall deposit with the Paying
Agent immediately available funds sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on that date.
Section 3.06. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for each Holder a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on a Series on the
dates and in the manner provided in the Securities of the Series. An
installment of principal or interest shall be considered paid on the date it is
due if the Paying Agent holds on that date money designated for and sufficient
to pay the installment.
The Company shall pay interest on overdue principal at the rate borne by
the Series; it shall pay interest on overdue installments of interest at the
same rate.
Section 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain the office or agency required under Section
2.03. The Company shall give prior written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee.
Section 4.03. Compliance Certificate.
----------------------
The Company shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company an Officers' Certificate stating whether or not
the signers know of any Default by the Company in performing any of its
obligations under this Indenture. If they do know of such a Default, the
certificate shall describe the Default.
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Section 4.04. Payment of Taxes; Maintenance of Corporate Existence;
-----------------------------------------------------
Maintenance of Properties.
-------------------------
The Company will:
(a) cause to be paid and discharged all lawful taxes, assessments and
governmental charges or levies imposed upon the Company and its Restricted
Subsidiaries or upon the income or profits of the Company and its Restricted
Subsidiaries or upon property or any part thereof belonging to the Company and
its Restricted Subsidiaries before the same shall be in default, as well as all
lawful claims for labor, materials and supplies which, if unpaid, might become a
lien or charge upon such property or any part thereof; provided, however, that
the Company shall not be required to cause to be paid or discharged any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the nonpayment
thereof does not, in the judgment of the Company, materially adversely affect
the ability of the Company and the Restricted Subsidiaries to pay all
obligations under the Indenture when due; and provided further that the Company
shall not be required to cause to be paid or discharged any such tax,
assessment, charge, levy or claim if, in the judgment of the Company, such
payment shall not be advantageous to the Company in the conduct of its business
and if the failure so to pay or discharge does not, in its judgment, materially
adversely affect the ability of the Company and the Restricted Subsidiaries to
pay all obligations under this Indenture when due;
(b) cause to be done all things necessary to preserve and keep in full
force and effect the corporate existence of the Company and each of its
Restricted Subsidiaries and to comply with all applicable laws; provided,
however, that nothing in this subsection (b) shall prevent a consolidation or
merger of the Company or any Restricted Subsidiary not prohibited by the
provisions of Article Five or any other provision or the Authorizing Resolution
or supplemental indenture pertaining to a Series, and the Company need not
maintain the corporate existence of an immaterial Restricted Subsidiary; and
(c) at all times keep, maintain and preserve all the property of the
Company and the Restricted Subsidiaries in good repair, working order and
condition (reasonable wear and tear excepted) and from time to time make all
needful and proper repairs, renewals, replacements, betterments and improvements
thereto, so that the business carried on in connection therewith may be properly
and advantageously conducted at all times; provided, however, that nothing in
this subsection (c) shall prevent the Company from discontinuing the operation
and maintenance of any such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the ability of the Company and the
Restricted Subsidiaries to pay all obligations under this Indenture when due.
Section 4.05. Limitation on Senior Subordinated Indebtedness.
----------------------------------------------
The Company shall not, directly or indirectly, incur any Indebtedness that
by its terms would expressly rank senior in right of payment to the Securities
of any Series and expressly rank subordinate in right of payment to any Senior
Indebtedness.
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ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, etc.
---------------------------
The Company shall not consolidate with or merge with or into, any other
corporation, or transfer all or substantially all of its assets to, any entity
unless permitted by law and unless (1) the resulting, surviving or transferee
entity, which shall be a corporation organized and existing under the laws of
the United States or a State thereof, assumes by supplemental indenture, in a
form reasonably satisfactory to the Trustee, all of the obligations of the
Company under the Securities and this Indenture and (2) immediately after giving
effect to, and as a result of, such transaction, no Default or Event of Default
shall have occurred and be continuing. Thereafter such successor corporation or
corporations shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as the "Company" and all such obligations
of the predecessor corporation shall terminate. The Company shall deliver to
the Trustee prior to the consummation of the proposed transaction an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with this Indenture.
To the extent that an Authorizing Resolution or supplemental indenture
pertaining to any Series provides for different provisions relating to the
subject matter of this Article Five, the provisions in such Authorizing
Resolution or supplemental indenture shall govern for purposes of such Series.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
-----------------
An "Event of Default" on a Series occurs if, voluntarily or involuntarily,
whether by operation of law or otherwise, any of the following occurs:
(1) the failure by the Company to pay interest on any Security of such
Series when the same becomes due and payable and the continuance of
any such failure for a period of 30 days, whether or not such payment
is prohibited by Article Eleven hereof;
(2) the failure by the Company to pay the principal or premium of any
Security of such Series when the same becomes due and payable at
maturity, upon acceleration or otherwise, whether or not such payment
is prohibited by Article Eleven hereof;
(3) the failure by the Company or any Restricted Subsidiary to comply with
any of its agreements or covenants in, or provisions of, the
Securities of such Series or this Indenture (as they relate thereto)
and such failure continues for the period and after the notice
specified below (except in the
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case of a default with respect to any Change of Control Provisions or
Article Five (or any replacement provisions as contemplated by Article
Five), which will constitute Events of Default with notice but without
passage of time);
(4) the acceleration of any Indebtedness (other than Non-Recourse
Indebtedness) of the Company or any Restricted Subsidiary in an amount
of $______ million or more, individually or in the aggregate, and such
acceleration does not cease to exist, or such Indebtedness is not
satisfied, in either case within five days after such acceleration;
(5) the failure by the Company or any Restricted Subsidiary to make any
principal or interest payment in an amount of $________ million or
more, individually or in the aggregate, in respect of Indebtedness
(other than Non-Resource Indebtedness) of the Company or any
Restricted Subsidiary within five days of such principal or interest
becoming due and payable (after giving effect to any applicable grace
period set forth in the documents governing such Indebtedness);
(6) a final judgment or judgments in an amount of $________ million or
more, individually or in the aggregate, for the payment of money
having been entered by a court or courts of competent jurisdiction
against the Company or any of its Restricted Subsidiaries and such
judgment or judgments is not satisfied, stayed, annulled or rescinded
within 60 days of being entered;
(7) the Company or any Restricted Subsidiary that is a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property or
(D) makes a general assignment for the benefit of its creditors; or
(8) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company or any Restricted Subsidiary
that is a Significant Subsidiary as debtor in an involuntary
case,
(B) appoints a Custodian of the Company or any Restricted Subsidiary
that is a Significant Subsidiary or a Custodian for all or
substantially all of the
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property of the Company or any Restricted Subsidiary that is a
Significant Subsidiary, or
(C) orders the liquidation of the Company or any Restricted
Subsidiary that is a Significant Subsidiary, and the order or
decree remains unstayed and in effect for 60 days.
Default as described in sub-clause (3) above will not be deemed an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25
percent in principal amount of the then outstanding Securities of the applicable
Series notify the Company and the Trustee, of the Default and (except in the
case of a default with respect to any Change of Control Provisions or Article
Five (or any replacement provisions as contemplated by Article Five)) the
Company does not cure the Default within 60 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default." If such a Default is cured within such
time period, it ceases. The term "Custodian" means any receiver, trustee,
assignee, liquidator, custodian or similar official under any Bankruptcy Law.
Section 6.02. Acceleration.
------------
If an Event of Default (other than an Event of Default with respect to the
Company resulting from sub-clauses (7) or (8) above), shall have occurred and be
continuing under the Indenture, the Trustee by notice to the Company, or the
Holders of at least 25 percent in principal amount of the Securities of the
applicable Series then outstanding by notice to the Company and the Trustee, may
declare all Securities of such Series to be due and payable immediately. Upon
such declaration of acceleration, the amounts due and payable on the Securities
of such Series will be due and payable immediately. If an Event of Default with
respect to the Company specified in sub-clauses (7) or (8) above occurs, all
amounts due and payable on the Securities of such Series will ipso facto become
and be immediately due and payable without any declaration, notice or other act
on the part of the Trustee and the Company or any Holder. The Holders of a
majority in principal amount of the Securities of such Series then outstanding
by written notice to the Trustee and the Company may waive any Default or Event
of Default (other than any continuing Default or Event of Default in payment of
principal or interest) with respect to such Series of Securities under the
Indenture. Holders of a majority in principal amount of the then outstanding
Securities of such Series may rescind an acceleration with respect to such
Series and its consequence (except an acceleration due to nonpayment of
principal or interest on the Securities of such Series) if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived.
No such rescission shall extend to or shall affect any subsequent Event of
Default, or shall impair any right or power consequent thereon.
Section 6.03. Other Remedies.
--------------
If an Event of Default on a Series occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or
21
interest on the Series or to enforce the performance of any provision in the
Securities or this Indenture applicable to the Series.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Existing Defaults.
---------------------------
Subject to Section 9.02, the Holders of a majority in principal amount of
the outstanding Securities of a Series on behalf of all the Holders of the
Series by notice to the Trustee may waive an existing Default on such Series and
its consequences. When a Default is waived, it is cured and stops continuing,
and any Event of Default arising therefrom shall be deemed to have been cured;
but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.
Section 6.05. Control by Majority.
-------------------
The Holders of a majority in principal amount of the outstanding Securities
of a Series may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it with respect to such Series. The Trustee, however, may refuse
to follow any direction (i) that conflicts with law or this Indenture, (ii)
that, subject to Section 7.01, the Trustee determines is unduly prejudicial to
the rights of other Securityholders, (iii) that would involve the Trustee in
personal liability or (iv) if the Trustee shall not have been provided with
indemnity satisfactory to it.
Section 6.06. Limitation on Suits.
-------------------
A Securityholder of a Series may not pursue any remedy with respect to this
Indenture or the Series unless:
(1) the Holder gives to the Trustee written notice of a continuing Event
of Default on the Series;
(2) the Holders of at least a majority in principal amount of the
outstanding Securities of the Series make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
22
(5) no written request inconsistent with such written request shall have
been given to the Trustee pursuant to this Section 6.06. A
Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over
another Securityholder.
Section 6.07. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Security, on or
after the respective due dates expressed in the Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Section 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of interest or principal specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal and interest remaining unpaid.
Section 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements,
and advances of the Trustee, its agents and counsel) and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property, and unless prohibited by applicable law or regulation, may vote on
behalf of the Holders in any election of a Custodian, and shall be entitled and
empowered to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same and any Custodian in
any such judicial proceeding is hereby authorized by each Securityholder to make
such payments to the Trustee. Nothing herein shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder or to authorize
the Trustee to vote in respect of the claim of any Securityholder except as
aforesaid for the election of the Custodian.
Section 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Securityholders of the Series for amounts due and unpaid on the
Series for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Series for principal
and interest, respectively; and
23
Third: to the Company as its interests may appear.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having the due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in principal amount of the Series.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the Trustee
shall, prior to the receipt of directions from the Holders of a majority in
principal amount of the Securities, exercise its rights and powers and use the
same degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no implied covenants
or obligations shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. The Trustee,
however, shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture but need not confirm or
investigate the accuracy of mathematical calculations or other facts or matters
stated therein.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section.
24
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.05 or any other direction of the Holders permitted
hereunder.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
(g) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
Section 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting on any document, resolution, certificate, instrument,
report, or direction believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document, resolution, certificate, instrument, report, or
direction.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both, which shall conform to
Sections 10.04 and 10.05 hereof and containing such other statements as the
Trustee reasonably deems necessary to perform its duties hereunder. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officers' Certificate, Opinion of Counsel or any other direction
of the Company permitted hereunder.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
25
(e) The Trustee may consult with counsel, and the written advice of
such counsel or any Opinion of Counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) Unless otherwise specifically provided in the Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(g) For all purposes under this Indenture, the Trustee shall not be
deemed to have notice or knowledge of any Event of Default (other than under
Section 6.01(1) or 6.01(2)) unless a Trust Officer assigned to and working in
the Trustee's corporate trust office has actual knowledge thereof or unless
written notice of any Event of Default is received by the Trustee at its address
specified in Section 10.02 hereof and such notice references the Securities
generally, the Company or this Indenture.
Section 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its affiliates
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. The Trustee, however, must comply with Sections 7.10 and
7.11.
Section 7.04. Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or adequacy of this
Indenture, the Securities or of any prospectus used to sell the Securities; it
shall not be accountable for the Company's use of the proceeds from the
Securities; it shall not be accountable for any money paid to the Company, or
upon the Company's direction, if made under and in accordance with any provision
of this Indenture; it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee; and it shall not be
responsible for any statement of the Company in this Indenture or in the
Securities other than its certificate of authentication.
Section 7.05. Notice of Defaults.
------------------
If a Default on a Series occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Securityholder of the Series notice of
the Default (which shall specify any uncured Default known to it) within 90 days
after it occurs. Except in the case of a default in payment of principal of or
interest on a Series, the Trustee may withhold the notice if and so long as the
board of directors of the Trustee, the executive or any trust committee of such
directors and/or responsible officers of the Trustee in good faith determine(s)
that withholding the notice is in the interests of Holders of the Series.
26
Section 7.06. Reports by Trustee to Holders.
-----------------------------
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such May 15 that complies with TIA (S) 313(a) (but if no
event described in TIA (S) 313(2) has occurred within the twelve months
preceding the reporting date no report need be transmitted). The Trustee also
shall comply with TIA (S) 313(b). A copy of each report at the time of its
mailing to Securityholders shall be delivered to the Company and filed by the
Trustee with the SEC and each national securities exchange on which the
Securities are listed. The Company agrees to notify the Trustee of each
national securities exchange on which the Securities are listed.
27
Section 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee or predecessor trustee from time to
time reasonable compensation for their respective services subject to any
written agreement between the Trustee and the Company. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel. The Company shall indemnify the
Trustee and each predecessor trustee, its officers, directors, employees and
agents and hold it harmless against any loss, liability or expense incurred or
made by or on behalf of it in connection with the administration of this
Indenture or the trust hereunder and its duties hereunder including the costs
and expenses of defending itself against or investigating any claim in the
premises. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through the Trustee's, or
its officers', directors', employees' or agents' negligence or bad faith. To
ensure the Company's payment obligations in this Section, the Trustee shall have
a claim prior to the Securities on all money or property held or collected by
the Trustee, except that held in trust to pay principal of or interest on
particular Securities. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01 or in connection
with Article Six hereof, the expenses (including the reasonable fees and
expenses of its counsel) and the compensation for services in connection
therewith are to constitute expenses of administration under any bankruptcy law.
Section 7.08. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Securities may remove the
Trustee by so notifying the removed Trustee in writing and may appoint a
successor trustee with the Company's consent. Such resignation or removal shall
not take effect until the appointment by the Securityholders or the Company as
hereinafter provided of a successor trustee and the acceptance of such
appointment by such successor trustee. The Company may remove the Trustee and
any Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee for any or no
reason, including if:
(1) the Trustee fails to comply with Section 7.10 after written request by
the Company or any bona fide Securityholder who has been a
Securityholder for at least six months;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
trustee. If a successor trustee does not
28
take office within 45 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or any Holder may petition any court of competent
jurisdiction for the appointment of a successor trustee. A successor trustee
shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company. Immediately after that, the retiring Trustee shall transfer
all property held by it as Trustee to the successor trustee, the resignation or
removal of the retiring Trustee shall become effective, and the successor
trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor trustee shall mail notice of its succession to each
Securityholder.
Section 7.09. Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates with, merges with or into or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor trustee.
Section 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the requirements
of TIA (S) 310(a)(1). The Trustee shall have a combined capital and surplus of
at least $10,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01. Defeasance upon Deposit of Moneys or U.S. Government
----------------------------------------------------
Obligations.
-----------
(a) The Company may, at its option and, subject to the provisions of
Article Eleven hereof, at any time, elect to have either paragraph (b)
or paragraph (c) below be applied to the outstanding Securities of any
Series upon compliance with the applicable conditions set forth in
paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have
been released and discharged from its obligations with respect to the
outstanding Securities of a Series on the date the applicable
conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Securities of a Series,
which shall thereafter be deemed to be
29
"outstanding" only for the purposes of the Sections and matters under
this Indenture referred to in (i) and (ii) below, and to have
satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned, except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Securities of a
Series to receive solely from the trust fund described in paragraph
(d) below and as more fully set forth in such paragraph, payments in
respect of the principal of and interest on such Securities when such
payments are due and (ii) obligations listed in Section 8.02, subject
to compliance with this Section 8.01. The Company may exercise its
option under this paragraph (b) notwithstanding the prior exercise of
its option under paragraph (c) below with respect to such Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and
discharged from the obligations under any covenant contained in
Article Five and any other covenant contained in the Authorizing
Resolution or supplemental indenture relating to such Series to the
extent provided for therein, on and after the date the conditions set
forth below are satisfied (hereinafter, "Covenant Defeasance"), and
the Securities of such Series shall thereafter be deemed to be not
"outstanding" for the purpose of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose,
such Covenant Defeasance means that, with respect to the outstanding
Securities of a Series, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in
any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01(3), but, except as
specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities of
the applicable Series:
(1) The Company shall have irrevocably deposited in trust with the
Trustee, pursuant to an irrevocable trust and security agreement
in form and substance reasonably satisfactory to the Trustee,
money in U.S. dollars or U.S. government obligations or a
combination thereof in such amounts and at such times as are
sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of
30
and interest on the outstanding Securities of such Series to
maturity or redemption; provided, however, that the Trustee (or
other qualifying trustee) shall have received an irrevocable
written order from the Company instructing the Trustee (or other
qualifying trustee) to apply such money or the proceeds of such
U.S. government obligations to said payments with respect to the
Securities of such Series to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(3) Such deposit will not result in a Default under this Indenture or
a breach or violation of, or constitute a default under, any
other material instrument or agreement to which the Company or
any of any of its Subsidiaries is a party or by which it or any
of their property is bound;
(4) (i) In the event the Company elects paragraph (b) hereof, the
Company shall deliver to the Trustee an Opinion of Counsel in the
United States, in form and substance reasonably satisfactory to
the Trustee, to the effect that (A) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the Issue Date pertaining to such
Series, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall state that, or (ii) in the event
the Company elects paragraph (c) hereof, the Company shall
deliver to the Trustee an Opinion of Counsel in the United
States, in form and substance reasonably satisfactory to the
Trustee, to the effect that, in the case of clauses (i) and (ii),
Holders of the Securities of such Series will not recognize
income, gain or loss for federal income tax purposes as a result
of such deposit and the defeasance contemplated hereby and will
be subject to federal income tax in the same amounts and in the
same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers'
Certificate, stating that the deposit under clause (1) was not
made by the Company with the intent of preferring the Holders of
the Securities of such Series over any other creditors of the
Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of
Counsel, reasonably satisfactory to the Trustee, to the effect
that, (A) the trust funds will not be subject to the rights of
Holders of Indebtedness of the Company other than the Securities
of such Series and (B) assuming no intervening bankruptcy of the
Company between the date of deposit and the 91st day following
the deposit and that no Holder of Securities of such Series is an
insider of the Company, after the 91st day following the
31
deposit, the trust funds will not be subject to any applicable
bankruptcy, insolvency, reorganization or similar law affecting
creditors' rights generally; and
(7) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the defeasance
contemplated by this Section 8.01 have been complied with. In
the event all or any portion of the Securities of a Series are to
be redeemed through such irrevocable trust, the Company must make
arrangements satisfactory to the Trustee, at the time of such
deposit, for the giving of the notice of such redemption or
redemptions by the Trustee in the name and at the expense of the
Company.
(e) In addition to the Company's rights above under this Section 8.01, the
Company may terminate all of its obligations under this Indenture with
respect to a Series, when:
(1) All Securities of such Series theretofore authenticated and
delivered (other than Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in
Section 2.07 and Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee
for cancellation or all such Securities not theretofore delivered
to the Trustee for cancellation have become due and payable and
the Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust solely for that purpose
an amount of money sufficient to pay and discharge the entire
Indebtedness on the Securities not theretofore delivered to the
Trustee for cancellation, for principal of and interest;
(2) The Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) The Company has delivered irrevocable instructions to the Trustee
to apply the deposited money toward the payment of the Securities
at maturity or redemption, as the case may be; and
(4) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, stating that all conditions precedent
specified herein relating to the satisfaction and discharge of
this Indenture have been complied with.
Section 8.02. Survival of the Company's Obligations.
-------------------------------------
Notwithstanding the satisfaction and discharge of the Indenture under
Section 8.01, the Company's obligations in paragraph 9 of the Securities and
Sections 2.03 through 2.07, 4.01,
32
7.07, 7.08, 8.04 and 8.05, however, shall survive until the Securities of an
applicable Series are no longer outstanding. Thereafter, the Company's
obligations in paragraph 9 of the Securities of such Series and Sections 7.07,
8.04 and 8.05 shall survive (as they relate to such Series).
Section 8.03. Application of Trust Money.
--------------------------
The Trustee shall hold in trust money or U.S. government obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. government obligations in accordance with this Indenture
to the payment of principal of and interest on the Securities of the defeased
Series.
Section 8.04. Repayment to the Company.
------------------------
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time. The Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once in a newspaper of general circulation in the City of New York
or mail to each such Holder notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company,
Securityholders entitled to the money must look to the Company for payment as
general creditors unless applicable abandoned property law designates another
person and all liability of the Trustee or such Paying Agent with respect to
such money shall cease.
Section 8.05. Reinstatement.
-------------
If the Trustee is unable to apply any money or U.S. government obligations
in accordance with Section 8.01 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities relating to the Series shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee is permitted to apply all such money or U.S. government
obligations in accordance with Section 8.01; provided, however, that (a) if the
Company has made any payment of interest on or principal of any Securities of
the Series because of the reinstatement of their obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. government obligations held by the Trustee and
(b) unless otherwise required by any legal proceeding or any order or judgment
of any court or governmental authority, the Trustee shall return all such money
or U.S. government obligations to the Company promptly after receiving a written
request therefor at any time, if such reinstatement of the Company's obligations
has occurred and continue to be in effect.
33
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
--------------------------
The Company and the Trustee may amend or supplement this Indenture or the
Securities of a Series without notice to or consent of any Securityholder of
such Series:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide that specific provisions of this Indenture shall not apply
to a Series not previously issued;
(4) to create a Series and establish its terms;
(5) to provide for uncertificated Securities in addition to or in place of
certificated Securities; and
(6) to make any other change that does not adversely affect the rights of
Securityholders.
After an amendment under this Section 9.01 becomes effective, the Company
shall mail notice of such amendment to the Securityholders.
Section 9.02. With Consent of Holders.
-----------------------
The Company and the Trustee may amend or supplement this Indenture or the
Securities of a Series without notice to any Securityholder of such Series but
with the written consent of the Holders of at least a majority in principal
amount of the outstanding Securities of each such Series affected by the
amendment. Each such Series shall vote as a separate class. The Holders of a
majority in principal amount of the outstanding Securities of any Series may
waive compliance by the Company with any provision of the Securities of such
Series or of this Indenture relating to such Series without notice to any
Securityholder. Without the consent of each Securityholder of a Series
affected, however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:
(1) reduce the amount of Securities of such Series whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest,
including defaulted interest, on any Security;
(3) reduce the principal of or change the fixed maturity of any Security
or alter the provisions (including related definitions) with respect
to redemption of
34
Securities pursuant to Article Three hereof or with respect to any
obligations on the part of the Company to offer to purchase or to
redeem Securities of a Series pursuant to the Authorizing Resolution
or supplemental indenture pertaining to such Series;
(4) modify the ranking or priority of the Securities of any Series;
(5) make any change in Sections 6.04, 6.07 or this 9.02;
(6) waive a continuing Default or Event of Default in the payment of the
principal of or interest on any Security; or
(7) make any Security payable at a place or in money other than that
stated in the Security, or impair the right of any Securityholder to
bring suit as permitted by Section 6.07.
An amendment of a provision included solely for the benefit of one or more
Series does not affect the interests of Securityholders of any other Series.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed supplement, but it shall be
sufficient if such consent approves the substance thereof.
Section 9.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
---------------------------------
A consent to an amendment, supplement or waiver by a Holder shall bind the
Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent is not made on any Security. Subject to the following paragraph,
any such Holder or subsequent Holder, however, may revoke the consent as to his
Security or portion of a Security. Such revocation shall be effective only if
the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. The Company may, but shall not be
obligated to, fix a record date for the purpose of determining the Holders of
Securities of any Series entitled to consent to any amendment, supplement or
waiver, which record date shall be at least 10 days prior to the first
solicitation of such consent. If a record date is fixed, then notwithstanding
the last sentence of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date. After
an amendment, supplement or waiver becomes effective, it shall bind every
Holder, unless it makes a change described in any of clauses (1) through (7) of
Section 9.02, in which case, the amendment, supplement or waiver shall bind only
each Holder of a Security who has consented
35
to it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security; provided that any
such waiver shall not impair or affect the right of any Holder to receive
payment of principal of and interest on a Security, on or after the respective
due dates expressed in such Security, or to bring suit for the enforcement of
any such payment on or after such respective dates without the consent of such
Holder.
Section 9.05. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security, the
Company may require the Holder of the Security to deliver it to the Trustee, at
which time the Trustee shall place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
Section 9.06. Trustee to Sign Amendments, etc.
-------------------------------
Subject to Section 7.02(b), the Trustee shall sign any amendment,
supplement or waiver authorized pursuant to this Article if the amendment,
supplement or waiver does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. If it does, the Trustee may but need not sign it.
In signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be entitled to receive and shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel as conclusive evidence
that such amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE TEN
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
Section 10.02. Notices.
-------
Any order, consent, notice or communication shall be sufficiently given if
in writing and delivered in person or mailed by first class mail, postage
prepaid, addressed as follows:
if to the Company:
Standard Pacific Corporation.
0000 X. XxxXxxxxx Xxxxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention:
36
if to the Trustee:
Attention:
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed to
him by first class mail at his address as it appears on the registration books
of the Registrar and shall be sufficiently given to him if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it except that notice to the
Trustee shall only be effective upon receipt thereof by the Trustee.
If the Company mails notice or communications to the Securityholders, it
shall mail a copy to the Trustee at the same time.
Section 10.03. Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA (S) 312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set forth
in Section 10.05) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth in
Section 10.05) stating that, in the opinion of such counsel, all such
conditions precedent and covenants, compliance with which constitutes
a condition precedent, if any, provided for in this Indenture relating
to the proposed action or inaction, have been complied with and that
any such section does not conflict with the terms of the Indenture.
37
Section 10.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Section 10.06. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules for
its functions.
Section 10.07. Legal Holidays.
--------------
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday or a day on
which banking institutions in Los Angeles, California and New York, New York are
not required to be open. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period. A
Business Day is any day other than a Legal Holiday.
Section 10.08. Governing Law.
-------------
The laws of the State of New York shall govern this Indenture and the
Securities of each Series.
Section 10.09. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.10. No Recourse Against Others.
--------------------------
All liability described in paragraph 13 of the Securities of any director,
officer, employee or stockholder, as such, of the Company is waived and
released.
38
Section 10.11. Successors and Assigns.
----------------------
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the Trustee
in this Indenture shall bind its successors and assigns.
Section 10.12. Duplicate Originals.
-------------------
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section 10.13. Severability.
------------
In case any one or more of the provisions contained in this Indenture or in
the Securities of a Series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Securities.
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
Section 11.01. Securities Subordinated to Senior Indebtedness.
----------------------------------------------
The Company covenants and agrees, and the Trustee and each Holder of the
Securities by his acceptance thereof likewise covenant and agree, that all
Securities shall be issued subject to the provisions of this Article Eleven; and
each person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that all payments of the
principal of and interest on the Securities by the Company shall, to the extent
and in the manner set forth in this Article Eleven, be subordinated and junior
in right of payment to the prior payment in full in cash of all amounts payable
under Senior Indebtedness.
Section 11.02. No Payment on Securities in Certain Circumstances.
-------------------------------------------------
(a) No direct or indirect payment (excluding any payment or
distribution of Permitted Junior Securities) by or on behalf of the Company of
principal of or interest on the Securities, except from those funds held in
trust for the benefit of Holders of any Securities pursuant to the procedures
set forth in Article Eight hereof, whether pursuant to the terms of the
Securities, upon acceleration or otherwise, shall be made if, at the time of
such payment, there exists a default in the payment of all or any portion of the
obligations on any Senior Indebtedness, whether at maturity, on account of
mandatory redemption or prepayment, acceleration or otherwise, and such default
shall not have been cured or waived or the benefits of this sentence waived by
or on behalf of the holders of such Senior Indebtedness. In addition, during
the continuance of any non-payment event of default with respect to any
Designated Senior Indebtedness pursuant to which the maturity thereof may be
immediately accelerated, and upon receipt by the Trustee of written notice (a
"Payment Blockage Notice" ) from the holder or holders of such Designated Senior
Indebtedness or the trustee or agent acting on behalf of such
39
Designated Senior Indebtedness, then, unless and until such event of default has
been cured or waived or has ceased to exist or such Designated Senior
Indebtedness has been discharged or repaid in full in cash or the benefits of
these provisions have been waived by the holders of such Designated Senior
Indebtedness, no direct or indirect payment (excluding any payment or
distribution of Permitted Junior Securities) shall be made by or on behalf of
the Company of principal of or interest on the Securities, except from those
funds held in trust for the benefit of Holders of any Securities pursuant to the
procedures set forth in Article Eight hereof, to such Holders, during a period
(a "Payment Blockage Period") commencing on the date of receipt of such notice
by the Trustee and ending 179 days thereafter.
Notwithstanding anything herein or in the Securities to the contrary, (x)
in no event shall a Payment Blockage Period extend beyond 179 days from the date
the Payment Blockage Notice in respect thereof was given, (y) there shall be a
period of at least 181 consecutive days in each 360-day period when no Payment
Blockage Period is in effect and (z) not more than one Payment Blockage Period
may be commenced with respect to the Securities during any period of 360
consecutive days. No event of default that existed or was continuing on the
date of commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage Period may be,
or be made, the basis for the commencement of any other Payment Blockage Period
by the holder or holders of such Designated Senior Indebtedness or the trustee
or agent acting on behalf of such Designated Senior Indebtedness, whether or not
within a period of 360 consecutive days, unless such event of default has been
cured or waived for a period of not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 11.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders) or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that, upon notice from the Trustee to the holders of Senior Indebtedness
that such prohibited payment has been made, the holders of the Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Trustee in writing of the amounts then due and owing on the Senior
Indebtedness, if any, and only the amounts specified in such notice to the
Trustee shall be paid to the holders of Senior Indebtedness.
Section 11.03. Payment Over of Proceeds upon Dissolution, etc.
----------------------------------------------
(a) Upon any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities
(excluding any payment or distribution of Permitted Junior Securities), upon any
dissolution or winding up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all Senior Indebtedness shall first be paid in full in cash
before the Holders of the Securities or the Trustee on behalf of such Holders
shall be entitled to receive any payment by the Company of the principal of or
interest on the Securities, or any payment by the Company to acquire any of the
Securities for cash, property or securities, or any distribution
40
with respect to the Securities of any cash, property or securities (excluding
any payment or distribution of Permitted Junior Securities). Before any payment
may be made by, or on behalf of, the Company of the principal of or interest on
the Securities upon any such dissolution or winding up or liquidation or
reorganization, any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities
(excluding any payment or distribution of Permitted Junior Securities), to which
the Holders of the Securities or the Trustee on their behalf would be entitled,
but for the subordination provisions of this Indenture, shall be made by the
Company or by any receiver, trustee in bankruptcy, liquidation trustee, agent or
other Person making such payment or distribution, directly to the holders of the
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders) or their representatives or
to the trustee or trustees or agent or agents under any agreement or indenture
pursuant to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay all such Senior
Indebtedness in full in cash after giving effect to any prior or concurrent
payment, distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities (excluding any payment or distribution of Permitted Junior
Securities), shall be received by the Trustee or any Holder of Securities at a
time when such payment or distribution is prohibited by Section 11.03(a) and
before all obligations in respect of Senior Indebtedness are paid in full in
cash, or payment provided for, such payment or distribution shall be received
and held in trust for the benefit of, and shall be paid over or delivered to,
the holders of Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders) or their
respective representatives, or to the trustee or trustees or agent or agents
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, for application to the
payment of Senior Indebtedness remaining unpaid until all such Senior
Indebtedness has been paid in full in cash after giving effect to any prior or
concurrent payment, distribution or provision therefor to or for the holders of
such Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company with or
into, another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five (or any replacement provisions as
contemplated by Article Five) shall not be deemed a dissolution, winding up,
liquidation or reorganization for the purposes of this Section 11.03 if such
other corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Five (or any replacement
provisions as contemplated by Article Five).
Section 11.04. Subrogation.
-----------
Upon the payment in full of all Senior Indebtedness, or provision for
payment, the Holders of the Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company made on such
41
Senior Indebtedness until the principal of and interest on the Securities shall
be paid in full in cash; and, for the purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee on their
behalf would be entitled except for the provisions of this Article Eleven, and
no payment over pursuant to the provisions of this Article Eleven to the holders
of Senior Indebtedness by Holders of the Securities or the Trustee on their
behalf shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness. It is understood that
the provisions of this Article Eleven are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on the
one hand, and the holders of the Senior Indebtedness, on the other hand. If any
payment or distribution to which the Holders of the Securities would otherwise
have been entitled but for the provisions of this Article Eleven shall have been
applied, pursuant to the provisions of this Article Eleven, to the payment of
all amounts payable under Senior Indebtedness, then and in such case, the
Holders of the Securities shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount required to make payment in full, or
provision for payment, of such Senior Indebtedness.
Section 11.05. Obligations of Company Unconditional.
------------------------------------
Nothing contained in this Article Eleven or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Company and the
Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Holder of any Security or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Eleven of the
holders of the Senior Indebtedness in respect of cash, property or securities of
the Company received upon the exercise of any such remedy. Without limiting the
generality of the foregoing, nothing contained in this Article Eleven shall
restrict the right of the Trustee or the Holders of Securities to take any
action to declare the Securities to be due and payable prior to their stated
maturity pursuant to Section 6.01 or to pursue any rights or remedies hereunder;
provided, however, that all Senior Indebtedness then due and payable shall first
be paid in full before the Holders of the Securities or the Trustee are entitled
to receive any direct or indirect payment from the Company of principal of or
interest on the Securities.
Section 11.06. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article
Eleven. The Trustee shall not be charged with knowledge of the existence of any
event of default with respect to any Senior Indebtedness or of any other facts
which would prohibit the making of any payment to or by the Trustee unless
42
and until the Trustee shall have received notice in writing at its corporate
trust office to that effect signed by an Officer of the Company, or by a holder
of Senior Indebtedness or trustee or agent therefor; and prior to the receipt of
any such written notice, the Trustee shall, subject to Article Seven, be
entitled to assume that no such facts exist; provided that if the Trustee shall
not have received the notice provided for in this Section 11.06 at least two
Business Days prior to the date upon which by the terms of this Indenture any
moneys shall become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Security), then, regardless of
anything herein to the contrary, the Trustee shall have full power and authority
to receive any moneys from the Company and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 11.06 shall limit the right of the holders of Senior
Indebtedness to recover payments as contemplated by Section 11.03. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Senior Indebtedness (or a
trustee on behalf of, or other representative of, such holder) to establish that
such notice has been given by a holder of such Senior Indebtedness or a trustee
or representative on behalf of any such holder. In the event that the Trustee
determines in good faith that any evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness to participate in any payment
or distribution pursuant to this Article Eleven, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Eleven, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 11.07. Reliance on Judicial Order or Certificate of Liquidating
--------------------------------------------------------
Agent.
-----
Upon any payment or distribution of assets or securities referred to in
this Article Eleven, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Eleven.
Section 11.08. Trustee's Relation to Senior Indebtedness.
-----------------------------------------
The Trustee and any Paying Agent shall be entitled to all the rights set
forth in this Article Eleven with respect to any Senior Indebtedness which may
at any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee or any Paying Agent of any of its rights as such
holder.
43
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Eleven, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness (except as provided in
Section 11.03(b)). The Trustee shall not be liable to any such holders if the
Trustee shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article Eleven or otherwise.
Section 11.09. Subordination Rights Not Impaired by Acts or Omissions of
---------------------------------------------------------
the Company or Holders of Senior Indebtedness.
---------------------------------------------
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
The provisions of this Article Eleven are intended to be for the benefit of, and
shall be enforceable directly by, the holders of Senior Indebtedness.
Section 11.10. Securityholders Authorize Trustee To Effectuate
-----------------------------------------------
Subordination of Securities.
---------------------------
Each Holder of Securities by his acceptance of such Securities authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Eleven, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, the filing of a claim for the unpaid balance of its or his
Securities in the form required in those proceedings.
Section 11.11. This Article Not to Prevent Events of Default.
---------------------------------------------
The failure to make a payment on account of principal of or interest on the
Securities by reason of any provision of this Article Eleven shall not be
construed as preventing the occurrence of an Event of Default specified in
clause (1) or (2) of Section 6.01.
Section 11.12. Trustee's Compensation Not Prejudiced.
-------------------------------------
Nothing in this Article Eleven shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
44
Section 11.13. No Waiver of Subordination Provisions.
-------------------------------------
Without in any way limiting the generality of Section 11.09, the holders of
Senior Indebtedness may, at any time and from time to time, without the consent
of or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article Eleven or the obligations
hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the time of
payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness
is outstanding or secured;
(b) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Indebtedness;
(c) release any Person liable in any manner for the collection of Senior
Indebtedness; and
(d) exercise or refrain from exercising any rights against the Company and
any other Person.
Section 11.14. Certain Payments May Be Paid Prior to Dissolution.
-------------------------------------------------
All money and United States government obligations properly deposited in
trust with the Trustee pursuant to and in accordance with Article Eight shall be
for the sole benefit of the Holders and shall not be subject to this Article
Eleven.
Nothing contained in this Article Eleven or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in Section
11.02, from making payments of principal of and interest on the Securities, or
from depositing with the Trustee any moneys for such payments or from effecting
a termination of the Company's obligations under the Securities and this
Indenture as provided in Article Eight, or (ii) the application by the Trustee
of any moneys deposited with it for the purpose of making such payments of
principal of on and interest on the Securities to the holders entitled thereto
unless at least two Business Days prior to the date upon which such payment
becomes due and payable, the Trustee shall have received the written notice
provided for in Section 11.02(b) or in Section 11.06. The Company shall give
prompt written notice to the Trustee of any dissolution, winding up, liquidation
or reorganization of the Company.
45
SIGNATURES
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, all as of the date first above written.
Dated: ___________________, 1998 STANDARD PACIFIC CORP.
By:
-------------------------------
Name:
Title:
Dated: ___________________, 1998 [Trustee], as Trustee
By:
-------------------------------
Name:
Title:
(SEAL)
46
EXHIBIT A
No. CUSIP No.: _______
[Title of Security]
STANDARD PACIFIC CORP., a Delaware corporation, promises to pay to or
registered assigns the principal sum of __________________[Dollars]/1/ on [Title
of Security]
Interest Payment Dates: and
Record Dates: and
Authenticated:
Dated: Standard Pacific Corp.
(Seal)
By
-----------------------------------
Title:
By
-----------------------------------
Title:
, as Trustee, certifies that this is one of the Securities referred to in
the within mentioned Indenture.
By
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Authorized Signatory
/1/ Or other currency. Insert corresponding provisions on reverse side of
Security in respect of foreign currency denomination or interest payment
requirement.
STANDARD PACIFIC CORP.
[Title of Security]
1. INTEREST. STANDARD PACIFIC CORP. (the "Company"), a Delaware
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corporation, promises to pay interest on the principal amount of this Security
at the rate per annum shown above. The Company will pay interest semiannually
on __________________ and ______________ of each year until the principal is
paid or made available for payment. Interest on the Securities will accrue from
the most recent date to which interest has been paid or duly provided for or, if
no interest has been paid, from _______________, 19 , provided that, if there is
no existing default in the payment of interest, and if this Security is
authenticated between a record date referred to on the face hereof and the next
succeeding interest payment date, interest shall accrue from such interest
payment date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
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(except defaulted interest, if any, which will be paid on such special payment
date to Holders of record on such special record date as may be fixed by the
Company) to the persons who are registered Holders of Securities at the close of
business on the [Insert record dates]. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, _________________________ (the
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"Trustee") will act as Paying Agent and Registrar. The Company may change or
appoint any Paying Agent, Registrar or co-Registrar without notice. The Company
or any of its Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
4. INDENTURE. The Company issued the Securities under an Indenture dated
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as of ______________, 1998 ("Indenture") between the Company and the Trustee.
The terms of the Securities include those stated in the Indenture (including
those terms set forth in the Authorizing Resolution or supplemental indenture
pertaining to the Securities of the Series of which this Security is a part) and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
("TIA") as in effect on the date of the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the Act
for a statement of them.
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the applicable Authorizing Resolution
or supplemental indenture. Requests may be made to: Standard Pacific Corp.,
0000 X. XxxXxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, Attention:
___________.
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5. OPTIONAL REDEMPTION./1/ The Company may redeem the Securities at any
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time on or after ______________, ____, in whole or in part, at the following
redemption prices (expressed as a percentage of their principal amount) together
with interest accrued and unpaid to the date fixed for redemption:
If redeemed during the Twelve-Month period Percentage
commencing on ___________ and ending on
___________ in each of the following years
[Insert provisions relating to redemption at option of Holders, if any]
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each Holder of Securities to be redeemed at
his registered address. Securities in denominations larger than $1,000 may be
redeemed in part. On and after the redemption date interest ceases to accrue on
Securities or portions of them called for redemption, provided that if the
Company shall default in the payment of such Security at the redemption price
together with accrued interest, interest shall continue to accrue at the rate
borne by the Securities.
6. MANDATORY REDEMPTION./2/ The Company shall redeem __% of the aggregate
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principal amount of Securities originally issued under the Indenture on each of
_____, which redemptions are calculated to retire % of the Securities originally
issued prior to maturity. Such redemptions shall be made at a redemption price
equal to 100% of the principal amount thereof, together with accrued interest to
the redemption date. The Company may reduce the principal amount of Securities
to be redeemed pursuant to this Paragraph 6 by the principal amount of any
Securities previously redeemed, retired or acquired, otherwise than pursuant to
this Paragraph 6, that the Company has delivered to the Trustee for cancellation
and not previously credited to the Company's obligations under this Paragraph 6.
Each such Security shall be received and credited for such purpose by the
Trustee at the redemption price and the amount of such mandatory redemption
payment shall be reduced accordingly.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered
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form without coupons in denominations of $1,000 and integral multiples of
$1,000. A Holder may transfer or exchange Securities by presentation of such
Securities to the Registrar or a co-Registrar with a request to register the
transfer or to exchange them for an equal principal amount of Securities of
other denominations. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
transfer or exchange any Security
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/1/ If applicable
/2/ If applicable. Insert different or additional denomination and multiples.
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selected for redemption, except the unredeemed part thereof if the Security is
redeemed in part, or transfer or exchange any Securities for a period of 15 days
before a selection of Securities to be redeemed. If applicable. Insert different
or additional denomination and multiples.
8. PERSONS DEEMED OWNERS. The registered Holder of this Security shall be
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treated as the owner of it for all purposes.
9. UNCLAIMED MONEY. If money for the payment of principal or interest
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remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Company at its request. After that, Holders entitled to the money
must look to the Company for payment unless an abandoned property law designates
another person.
10. AMENDMENT, SUPPLEMENT, WAIVER. Subject to certain exceptions, the
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Indenture or the Securities may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the outstanding
Securities of each Series affected by the amendment, and any past default or
compliance with any provision relating to any Series of the Securities may be
waived in a particular instance with the consent of the Holders of a majority in
principal amount of the outstanding Securities of such Series /3/. Without the
consent of any Securityholder, the Company and the Trustee may amend or
supplement the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Securities in addition to or in
place of certificated Securities, to create a Series and establish its terms or
to make any other change, provided such action does not adversely affect the
rights of any Securityholder.
11. SUCCESSOR CORPORATION. If different terms apply, insert a brief
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summary thereof. When a successor corporation assumes all the obligations of
its predecessor under the Securities and the Indenture, the predecessor
corporation will be released from those obligations.
12. TRUSTEE DEALINGS WITH COMPANY. ________________________________, the
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Trustee under the Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the Company or its
affiliates, and may otherwise deal with the Company or its affiliates, as if it
were not Trustee.
13. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
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stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of, such
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/3/ If different terms apply, insert a brief summary thereof.
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obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
14. DISCHARGE OF INDENTURE. The Indenture contains certain provisions
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pertaining to defeasance, which provisions shall for all purposes have the same
effect as if set forth herein.
15. AUTHENTICATION. This Security shall not be valid until the Trustee
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signs the certificate of authentication on the other side of this Security.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
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Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below:
I or we assign and transfer this Security to (Insert assignee's social
security or tax ID number) (Print or type assignee's name, address, and zip
code) and irrevocably appoint agent to transfer this Security on the books of
the Company. The agent may substitute another to act for him.
Date: ________________ Your signature:
(Sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee:
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