EXHIBIT 4.7
================================================================================
GREAT WOLF RESORTS, INC.
AND
WILMINGTON TRUST COMPANY, AS INDENTURE TRUSTEE
JUNIOR SUBORDINATED INDENTURE
DATED AS OF JUNE __, 2006
-----------------
================================================================================
CROSS REFERENCE SHEET
Between
Provisions of Trust Indenture Act of 1939 and Junior Subordinated
Indenture to be dated as of June __, 2006 between GREAT WOLF RESORTS, INC. and
WILMINGTON TRUST COMPANY, Indenture Trustee.
Section of the Act Section of the Indenture
-------------------------------------------------------- ----------------------------
310(a)(1) and (2)....................................... 6.09
310(a)(3) and (4)....................................... Inapplicable
310(b).................................................. 6.08 and 6.10(a), (b) and (d)
310(c).................................................. Inapplicable
311(a).................................................. 6.13
311(b).................................................. 6.13
312(a).................................................. 4.01
312(b).................................................. 4.02
312(c).................................................. 4.02
313(a).................................................. 4.04
313(b)(1)............................................... Inapplicable
313(b)(2)............................................... Inapplicable
313(c).................................................. 4.04
313(d).................................................. 4.03
314(a).................................................. 4.03
314(b).................................................. Inapplicable
314(c)(1) and (2)....................................... 11.05
314(c)(3)............................................... Inapplicable
314(d).................................................. Inapplicable
314(e).................................................. 11.05
314(f).................................................. Inapplicable
315(a), (c) and (d)..................................... 6.01
315(b).................................................. 5.11
315(e).................................................. 5.12
316(a)(1)............................................... 5.09
316(a)(2)............................................... Inapplicable
316(b).................................................. 5.07
317(a)(1)............................................... 5.02
317(a)(2)............................................... 5.02(a)
317(b).................................................. 3.04(a) and (b)
318(a).................................................. 11.07
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Junior Subordinated Indenture.
TABLE OF CONTENTS
PAGE
-----
ARTICLE 1
DEFINITIONS
Section 1.01. Certain Terms Defined ...................................................................... 1
ARTICLE 2
SECURITIES
Section 2.01. Forms Generally ............................................................................ 8
Section 2.02. Form of Indenture Trustee's Certificate of Authentication .................................. 8
Section 2.03. Amount Unlimited; Issuable in Series ....................................................... 9
Section 2.04. Authentication and Delivery of Securities .................................................. 12
Section 2.05. Execution of Securities .................................................................... 15
Section 2.06. Certificate of Authentication .............................................................. 15
Section 2.07. Denomination and Date of Securities; Payments of Interest .................................. 16
Section 2.08. Registration, Transfer and Exchange ........................................................ 16
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities .................................. 20
Section 2.10. Cancellation of Securities; Disposition Thereof ............................................ 21
Section 2.11. Temporary Securities ....................................................................... 21
ARTICLE 3
COVENANTS OF THE ISSUER
Section 3.01. Payment of Principal and Interest .......................................................... 22
Section 3.02. Offices for Payments, etc .................................................................. 22
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture Trustee ............................... 23
Section 3.04. Paying Agents .............................................................................. 24
Section 3.05. Written Statement to Indenture Trustee ..................................................... 25
ARTICLE 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE INDENTURE TRUSTEE
Section 4.01. Issuer to Furnish Indenture Trustee Information as to Names and Addresses of
Securityholders .................................................................................. 25
Section 4.02. Preservation and Disclosure of Securityholders Lists ....................................... 25
Section 4.03. Reports by the Issuer ...................................................................... 25
Section 4.04. Reports by the Indenture Trustee ........................................................... 25
ARTICLE 5
REMEDIES OF THE INDENTURE TRUSTEE AND SECURITYHOLDERS IN DEFAULT OR EVENT
OF DEFAULT
Section 5.01. Event of Default Defined; Acceleration of Maturity; Waiver of Event of Default ............. 26
Section 5.02. Collection of Indebtedness by Indenture Trustee; Indenture Trustee May Prove Debt .......... 28
Section 5.03. Applications of Proceeds ................................................................... 31
Section 5.04. Suits for Enforcement ...................................................................... 32
Section 5.05. Restoration of Rights on Abandonment of Proceedings ........................................ 32
Section 5.06. Limitations on Suits by Securityholder; Default Defined .................................... 32
Section 5.07. Unconditional Right of Securityholders to Institute Certain Suits .......................... 34
Section 5.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default;
Restoration of Rights and Remedies ............................................................... 34
Section 5.09. Control by Holders of Securities ........................................................... 35
Section 5.10. Waiver of Past Defaults .................................................................... 35
Section 5.11. Indenture Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances .................................................................................... 36
Section 5.12. Right of Court to Require Filing of Undertaking to Pay Costs ............................... 36
ARTICLE 6
CONCERNING THE INDENTURE TRUSTEE
Section 6.01. Duties and Responsibilities of the Indenture Trustee; During Default; Prior to
Default .......................................................................................... 37
Section 6.02. Certain Rights of the Indenture Trustee .................................................... 38
Section 6.03. Indenture Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof .................................................................. 39
Section 6.04. Indenture Trustee and Agents May Hold Securities or Coupons; Collections, etc .............. 39
Section 6.05. Moneys Held by Indenture Trustee ........................................................... 40
Section 6.06. Compensation and Indemnification of Indenture Trustee and Its Prior Claim .................. 40
Section 6.07. Right of Indenture Trustee to Rely on Officer's Certificate, etc ........................... 40
Section 6.08. Indentures Not Creating Potential Conflicting Interests for the Indenture Trustee .......... 41
Section 6.09. Persons Eligible for Appointment as Indenture Trustee ...................................... 41
Section 6.10. Resignation and Removal; Appointment of Successor Trustee .................................. 41
Section 6.11. Acceptance of Appointment by Successor Trustee ............................................. 43
Section 6.12. Merger, Conversion, Consolidation or Succession to Business of Indenture Trustee ........... 44
Section 6.13. Preferential Collection of Claims Against the Issuer ....................................... 45
Section 6.14. Appointment of Authenticating Agent ........................................................ 45
ii
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
Section 7.01. Evidence of Action Taken by Securityholders ................................................ 46
Section 7.02. Proof of Execution of Instruments and of Holding of Securities ............................. 46
Section 7.03. Holders to be Treated as Owners ............................................................ 47
Section 7.04. Securities Owned by Issuer Deemed Not Outstanding .......................................... 48
Section 7.05. Right of Revocation of Action Taken ........................................................ 49
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Securityholders ................................. 49
Section 8.02. Supplemental Indentures With Consent of Securityholders .................................... 50
Section 8.03. Effect of Supplemental Indenture ........................................................... 52
Section 8.04. Documents to be Given to Indenture Trustee ................................................. 52
Section 8.05. Notation on Securities in Respect of Supplemental Indentures ............................... 53
Section 8.06. Subordination Unimpaired ................................................................... 53
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.01. Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain
Conditions ....................................................................................... 53
Section 9.02. Successor Corporation Substituted .......................................................... 53
Section 9.03. Opinion of Counsel Delivered to Indenture Trustee .......................................... 54
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.01. Satisfaction and Discharge of Indenture ................................................... 54
Section 10.02. Application by Indenture Trustee of Funds Deposited for Payment of Securities ............. 59
Section 10.03. Repayment of Moneys Held by Paying Agent .................................................. 60
Section 10.04. Return of Moneys Held by Indenture Trustee and Paying Agent Unclaimed for Two
Years ............................................................................................ 60
Section 10.05. Indemnity for U.S. Government Obligations ................................................. 60
ARTICLE 11
MISCELLANEOUS PROVISIONS
Section 11.01. Incorporators, Stockholders, Officers and Directors of Issuer Exempt from
Individual Liability ............................................................................. 61
Section 11.02. Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities
and Coupons ...................................................................................... 61
Section 11.03. Successors and Assigns of Issuer Bound by Indenture ....................................... 61
iii
Section 11.04. Notices and Demands on Issuer, Indenture Trustee and Holders of Securities and
Coupons .......................................................................................... 61
Section 11.05. Officer's Certificates and Opinions of Counsel; Statements to be Contained Therein ........ 62
Section 11.06. Payments Due on Saturdays, Sundays and Holidays ........................................... 63
Section 11.07. Conflict of Any Provision of Indenture with Trust Indenture Act of 1939 ................... 63
Section 11.08. New York Law to Govern .................................................................... 63
Section 11.09. Counterparts .............................................................................. 63
Section 11.10. Effect of Headings ........................................................................ 63
Section 11.11. Securities in a Foreign Currency .......................................................... 64
Section 11.12. Judgment Currency ......................................................................... 64
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.01. Applicability of Article .................................................................. 65
Section 12.02. Notice of Redemption; Partial Redemptions ................................................. 65
Section 12.03. Payment of Securities Called for Redemption ............................................... 67
Section 12.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption ............. 68
Section 12.05. Mandatory and Optional Sinking Funds ...................................................... 68
ARTICLE 13
SUBORDINATION
Section 13.01. Securities and Coupons Subordinated to Senior Indebtedness ................................ 70
Section 13.02. Disputes with Holders of Certain Senior Indebtedness ...................................... 72
Section 13.03. Subrogation ............................................................................... 72
Section 13.04. Obligation of Issuer Unconditional ........................................................ 73
Section 13.05. Payments on Securities and Coupons Permitted .............................................. 73
Section 13.06. Effectuation of Subordination by Indenture Trustee ........................................ 73
Section 13.07. Knowledge of Indenture Trustee ............................................................ 74
Section 13.08. Indenture Trustee May Hold Senior Indebtedness ............................................ 74
Section 13.09. Rights of Holders of Senior Indebtedness Not Impaired ..................................... 74
Section 13.10. Article Applicable to Paying Agents ....................................................... 74
Section 13.11. Indenture Trustee; Compensation Not Prejudiced ............................................ 75
iv
THIS JUNIOR SUBORDINATED INDENTURE (this "INDENTURE"), is dated as of June
__, 2006 between GREAT WOLF RESORTS, INC., a Delaware corporation (the
"ISSUER"), and WILMINGTON TRUST COMPANY, as indenture trustee (the "INDENTURE
TRUSTEE").
W I T N E S S E T H :
WHEREAS, the Issuer has approved the form of and duly authorized the
execution and delivery of this Indenture to provide for issuance of its
unsecured junior subordinated debentures (the "SECURITIES") issued to evidence
loans made to the Company of the proceeds from the issuance by GW Capital Trust
II, a Delaware statutory trust, of undivided preferred beneficial interests in
the assets of GW Capital Trust II and undivided common beneficial interests in
the assets of GW Capital Trust II;
WHEREAS, the Issuer has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Indenture Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities and of the coupons, if any, appertaining thereto
as follows:
Article 1
DEFINITIONS
Section 1.01. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the date
of this Indenture. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "generally accepted accounting
principles" means such
accounting principles as are generally accepted in the United States of America
at the time of any computation. The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"2005 JUNIOR SUBORDINATED INDENTURE" means the Junior Subordinated
Indenture, dated as of March 15, 2005, between the Issuer and JPMorgan Chase
Bank, National Association, as trustee, pursuant to which the Existing Junior
Subordinated Debentures were issued.
"ADDITIONAL INTEREST" means compounded interest arising on any deferred
interest payments, as defined in any series of Securities.
"ADDITIONAL SUMS" has the meaning specified in Section 2.03(r) of this
Indenture.
"AUTHENTICATING AGENT" shall have the meaning set forth in Section 6.14.
"AUTHORIZED NEWSPAPER" means a newspaper published in the English
language, customarily published on each Business Day in the Borough of
Manhattan, The City of New York, which will, if practicable, be The Wall Street
Journal (Eastern Edition). If it shall be impractical in the opinion of the
Indenture Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Indenture Trustee shall constitute a
sufficient publication of such notice.
"BOARD OF DIRECTORS" means either the Board of Directors of the Issuer or
any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Issuer to have been duly adopted
or consented to by the Board of Directors and to be in full force and effect,
and delivered to the Indenture Trustee.
"BUSINESS DAY" means, with respect to any Security, unless otherwise
specified pursuant to Section 2.03, a day other than (a) a Saturday or Sunday,
and (b) a day on which banking institutions in Wilmington, Delaware and The City
of New York, New York are authorized or required by law or executive order to
close.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act of 1939, then the body performing such duties on such date.
2
"COMMON SECURITIES" means, with respect to a GW Capital Trust, the
undivided beneficial interests in the assets of such trust that rank pari passu
with the Trust Preferred Securities issued by such trust; provided, that if a
Default has occurred and is continuing, the rights of holders of such Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights of holders of such Trust
Preferred Securities.
"COMMON SECURITIES GUARANTEE" means, with respect to a GW Capital Trust,
the Guarantee of the Guarantor that operates directly or indirectly for the
benefit of holders of the Common Securities of such trust.
"CORPORATE TRUST OFFICE" means the office of the Indenture Trustee at
which the corporate trust business of the Indenture Trustee shall, at any
particular time, be principally administered, which office is, at the date as of
which this Indenture is dated, located in Wilmington, Delaware.
"COUPON" means any interest coupon appertaining to a Security.
"COVENANT DEFEASANCE" shall have the meaning set forth in Section
10.01(c).
"DEFAULT" shall have the meaning set forth in Section 5.06.
"DEPOSITARY" means, with respect to the Securities of any series issuable
or issued in the form of one or more Registered Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"DIRECT ACTION" means a legal proceeding instituted by a holder of the
Trust Preferred Securities of a GW Capital Trust directly against the Issuer for
the enforcement of payment to such holder of any amounts payable in respect of
the Securities held by such trust having a principal amount equal to the
aggregate liquidation amount of the Trust Preferred Securities held by such
holder if an Event of Default or a Default has occurred and is continuing and
such event is attributable to the failure of the Issuer to pay any amounts
payable in respect of such Securities on the date such amounts are otherwise
payable (in accordance with the terms hereof and thereof).
"DOLLAR" means the coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private debts.
"EXISTING JUNIOR SUBORDINATED DEBENTURES" means the Floating Rate Junior
Subordinated Debentures due 2035 issued by the Issuer under the 2005 Junior
Subordinated Indenture.
3
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.01.
"FOREIGN CURRENCY" means a currency issued by the government of a country
other than the United States (or any currency unit comprised of any such
currencies).
"GUARANTOR" means the Issuer in its capacity as guarantor under any Trust
Securities Guarantee.
"GW CAPITAL TRUST" means GW Capital Trust II, a Delaware statutory trust,
or any permitted successor thereto, or any substantially similar Delaware
statutory trust sponsored by the Issuer, or any permitted successor thereto.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar terms
mean (a) in the case of any Registered Security, the Person in whose name such
Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"INDENTURE" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
"INDENTURE TRUSTEE" means the Person identified as "INDENTURE TRUSTEE" in
the first paragraph hereof and, subject to the provisions of Article 6, shall
also include any successor trustee. "INDENTURE TRUSTEE" shall also mean or
include each Person who is then an indenture trustee hereunder and if at any
time there is more than one such Person, "INDENTURE TRUSTEE" as used with
respect to the Securities of any series shall mean the indenture trustee with
respect to the Securities of such series.
"INTEREST" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"ISSUER" means (except as otherwise provided in Article 6) Great Wolf
Resorts, Inc., a Delaware corporation, and, subject to Article 9, its successors
and assigns.
"ISSUER ORDER" means a written statement, request or order of the Issuer
signed in its name by any one of the following: the Chairman of the Board, the
Chief Executive Officer, the President, an Executive Vice President, the Chief
Financial Officer, the General Counsel, or the Treasurer, or any other person
authorized by the Board of Directors to execute any such written statement,
request or order.
"JUDGMENT CURRENCY" shall have the meaning set forth in Section 11.12.
4
"OFFICER'S CERTIFICATE" means a certificate (i) signed by any one of the
following: the Chairman of the Board, the Chief Executive Officer, the
President, an Executive Vice President, the Chief Financial Officer, the General
Counsel, or the Treasurer, or any other person authorized by the Board of
Directors to execute any such certificate and (ii) delivered to the Indenture
Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 11.05.
"OPINION OF COUNSEL" means an opinion or opinions in writing signed by
legal counsel who may be an employee of or counsel to the Issuer and who shall
be satisfactory to the Indenture Trustee. Each such opinion shall comply with
Section 314 of the Trust Indenture Act of 1939 and include the statements
provided for in Section 11.05.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"OUTSTANDING" when used with reference to Securities, shall, subject to
the provisions of Section 7.04, mean, as of any particular time, all Securities
authenticated and delivered by the Indenture Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Indenture Trustee or delivered
to the Indenture Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section 10.01)
in the necessary amount shall have been deposited in trust with the Indenture
Trustee or with any paying agent (other than the Issuer) or shall have been set
aside, segregated and held in trust by the Issuer for the Holders of such
Securities (if the Issuer shall act as its own paying agent), provided that if
such Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Indenture Trustee shall have been made for giving
such notice; and
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.09 (except with respect to any such Security as to which
proof satisfactory to the Indenture Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
5
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.01.
"PERIODIC OFFERING" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Issuer or its agents upon the issuance of such
Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any".
"RECORD DATE" shall have the meaning set forth in Section 2.07.
"REDEMPTION NOTICE PERIOD" shall have the meaning set forth in Section
12.02.
"REGISTERED GLOBAL SECURITY" means a Security evidencing all or a part of
a series of Registered Securities, issued to the Depositary for such series in
accordance with Section 2.04, and bearing the legend prescribed in Section 2.04.
"REGISTERED SECURITY" means any Security registered on the Security
register of the Issuer.
"REQUIRED CURRENCY" shall have the meaning set forth in Section 11.12.
"RESPONSIBLE OFFICER" when used with respect to the Indenture Trustee
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president, (whether or not designated by numbers or words added before or after
the title "vice president") the cashier, the secretary, the treasurer, any trust
officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, any
financial services officer, or any other officer or assistant officer of the
Indenture Trustee customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
6
"SECURITIES ACT OF 1933" means the Securities Act of 1933, as amended, and
the rules of the Commission relating thereto.
"SECURITIES EXCHANGE ACT OF 1934" means the Securities Exchange Act of
1934, as amended, and the rules of the Commission relating thereto.
"SECURITY" or "SECURITIES" has the meaning stated in the first recital of
this Indenture, or, as the case may be, Securities that have been authenticated
and delivered under this Indenture.
"SENIOR INDEBTEDNESS" means (i) obligations (other than non-recourse
obligations, the Securities, the Existing Junior Subordinated Debentures or any
other obligations specifically designated as being subordinate in right of
payment to Senior Indebtedness) of, or guaranteed or assumed by, the Issuer for
borrowed money or evidenced by bonds, debentures, notes or similar instruments,
and amendments, renewals, extensions, modifications and refundings of any of
such indebtedness or of such obligations, (ii) capitalized lease obligations of
the Issuer, (iii) obligations of the Issuer issued or assumed as the deferred
purchase price of property, (iv) obligations of the Issuer in respect of
interest rate, foreign exchange rate and commodity forward contracts, options
and swaps and similar arrangements and (v) all obligations of the type referred
to in clauses (i) through (iv) of other Persons which the Issuer has guaranteed
or is responsible or liable for as obligor or otherwise.
"TRUST AGREEMENT" means, with respect to a GW Capital Trust, the Amended
and Restated Declaration of Trust of such trust.
"TRUST INDENTURE ACT OF 1939" means the Trust Indenture Act of 1939, as
amended, and the rules of the Commission relating thereto.
"TRUST PREFERRED SECURITIES" means, with respect to a GW Capital Trust,
the undivided beneficial interests in the assets of such trust that rank pari
passu with the Common Securities issued by such trust; provided, that if a
Default has occurred and is continuing, the rights of holders of such Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights of holders of such Trust
Preferred Securities.
"TRUST PREFERRED SECURITIES GUARANTEE" means, with respect to a GW Capital
Trust, any Guarantee that the Guarantor enters into with Wilmington Trust
Company or any other Person that operates directly or indirectly for the benefit
of holders of the Trust Preferred Securities of such trust.
"TRUST SECURITIES" means, with respect to a GW Capital Trust, the Common
Securities and the Trust Preferred Securities issued by such trust.
7
"TRUST SECURITIES GUARANTEE" means, with respect to a GW Capital Trust,
the Common Securities Guarantee and the Trust Preferred Securities Guarantee
covering the Common Securities and the Trust Preferred Securities, respectively,
of such trust.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
"U.S. GOVERNMENT OBLIGATIONS" shall have the meaning set forth in Section
10.01(a).
"YIELD TO MATURITY" means the yield to maturity on a series of securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with accepted financial practice.
ARTICLE 2
SECURITIES
Section 2.01. Forms Generally. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board Resolution, an
Officer's Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
Section 2.02. Form of Indenture Trustee's Certificate of Authentication.
The Indenture Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
"This is one of the Securities referred to in the within-mentioned
Junior Subordinated Indenture.
8
____________________________________
as Indenture Trustee
Dated: By:
__________________________ ________________________________
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Indenture Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the within-mentioned
Junior Subordinated Indenture.
____________________________________
as Authenticating Agent
Dated: By:
__________________________ ________________________________
Authorized Signatory
Section 2.03 Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each such series shall rank equally and pari passu with the Securities of each
other series, but all Securities issued hereunder shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in Article
13, to all Senior Indebtedness of the Issuer. There shall be established in or
pursuant to one or more Board Resolutions (and, to the extent established
pursuant to rather than set forth in a Board Resolution, in an Officer's
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series,
(a) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(b) any limit upon the aggregate principal amount of the Securities of the
series that may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of, transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
2.08, 2.09, 2.11, 8.05 or 12.03);
(c) if other than Dollars, the coin or currency in which the Securities of
that series are denominated (including, but not limited to, any Foreign
Currency);
(d) the date or dates on which the principal of the Securities of the
series is payable and any provisions for the advancement of any such date;
9
(e) the rate or rates at which the Securities of the series shall bear
interest, if any, the rate or rates and extent to which Additional Interest, if
any, shall be payable in respect of any Securities of such series, the date or
dates from which such interest shall accrue, on which such interest shall be
payable and (in the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is payable and/or the
method by which such rate or rates or date or dates shall be determined;
(f) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section
3.02), the place or places where the Securities of the series may be presented
for registration of transfer or exchange and the place or places where notices
and demands to or upon the Issuer in respect of the Securities of the series may
be made;
(g) any provisions relating to the deferral of interest payments on the
Securities of the series at the option of the Issuer or otherwise;
(h) the right, if any, of the Issuer to redeem Securities of the series,
in whole or in part, at its option and the period or periods within which, the
price or prices at which and any terms and conditions, including the Redemption
Notice Period, upon which Securities of the series may be so redeemed, pursuant
to any sinking fund or otherwise;
(i) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which, the period or periods within which and any terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(j) any securities exchange or quotation system on which the Securities of
the series may be listed or quoted, as applicable;
(k) if other than denominations of $25 and any integral multiple thereof,
the denominations in which Securities of the series shall be issuable;
(l) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(m) if other than the coin or currency in which the Securities of that
series are denominated, the coin or currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(n) if the Securities of a series may be converted into or exchanged for
stock or other securities of the Issuer or other entities, the terms upon which
such series may be converted or exchanged, any specific terms relating to the
adjustment thereof and the period during which such Securities may be so
converted or exchanged;
10
(o) if the principal of or interest on the Securities of such series are
to be payable, at the election of the Issuer or a Holder thereof, in a coin or
currency other than that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon which, such election may
be made;
(p) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based on a
coin or currency other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(q) whether the Securities of the series will be issuable as Registered
Securities (and if so, whether such Securities will be issuable as Registered
Global Securities) or Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest thereon and, if
other than as provided in Section 2.08. the terms upon which Unregistered
Securities of any series may be exchanged for Registered Securities of such
series and vice versa;
(r) whether and under what circumstances the Issuer will pay any
additional amounts ("ADDITIONAL SUMS") on the Securities of the series held by a
person who is not a U.S. person or held in a GW Capital Trust in respect of any
tax, assessment or governmental charge withheld or deducted and, if so, whether
the Issuer will have the option to redeem such Securities rather than pay such
Additional Sums;
(s) if the Securities of such series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security of such
series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(t) any trustees, depositaries, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to the Securities of such
series;
(u) any additions, modifications or deletions in the Defaults, Events of
Default or covenants of the Issuer set forth herein with respect to the
Securities of such series; and
(v) any other terms of the series.
The Board Resolutions, supplemental indenture or Officer's Certificate
establishing the terms of a series of Securities hereunder shall, for all
purposes, be considered a part of this Indenture and shall be deemed to be
incorporated by reference in it. For purposes of this Indenture, references to a
"INDENTURE" shall also mean an Officer's Certificate or Board Resolutions, as
the case may be.
All Securities of any one series and Coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of Registered
Securities as to denomination and
11
except as may otherwise be provided by or pursuant to the Board Resolution or
Officer's Certificate referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need not be issued at the
same time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution, such
Officer's Certificate or in any such indenture supplemental hereto.
Section 2.04 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series having attached thereto appropriate Coupons, if
any, executed by the Issuer to the Indenture Trustee for authentication together
with the applicable documents referred to below in this Section, the Indenture
Trustee shall thereupon authenticate and deliver such Securities to or upon the
order of the Issuer (contained in the Issuer Order referred to below in this
Section) or pursuant to such procedures acceptable to the Indenture Trustee and
to such recipients as may be specified from time to time by an Issuer Order. The
maturity date, original issue date, interest rate and any other terms of the
Securities of such series and Coupons, if any, appertaining thereto (including
Redemption Notice Periods) shall be determined by or pursuant to such Issuer
Order and procedures. If provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Indenture Trustee shall be entitled to receive (in the case of subparagraphs
(b), (c) and (d) below only at or before the time of the first request of the
Issuer to the Indenture Trustee to authenticate Securities of such series) and
(subject to Section 6.01) shall be fully protected in relying upon, unless and
until such documents have been superceded or revoked:
(a) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, provided that, with respect to Securities of a series
subject to a Periodic Offering, (i) such Issuer Order may be delivered by the
Issuer to the Indenture Trustee prior to the delivery to the Indenture Trustee
of such Securities for authentication and delivery, (ii) the Indenture Trustee
shall authenticate and deliver Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to an Issuer Order or
pursuant to procedures acceptable to the Indenture Trustee as may be specified
from time to time by an Issuer Order, (iii) the maturity date or dates, original
issue date or dates, interest rate or rates and any other terms of Securities of
such series (including Redemption Notice Periods) shall be determined by an
Issuer Order or pursuant to such procedures and (iv) if provided for in such
procedures, such Issuer Order may authorize authentication and delivery pursuant
to oral or electronic instructions from the Issuer or its duly authorized agent
or agents, which oral instructions shall be promptly confirmed in writing;
12
(b) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(c) an Officer's Certificate setting forth the form or forms and terms of
the Securities and Coupons, if any, stating that the form or forms and terms of
the Securities and Coupons, if any, have been established pursuant to Sections
2.01 and 2.03 and comply with this Indenture, and covering such other matters as
the Indenture Trustee may reasonably request; and
(d) at the option of the Issuer, either an Opinion of Counsel, or a letter
addressed to the Trustee permitting it to rely on an Opinion of Counsel,
substantially to the effect that:
(i) the forms of the Securities and Coupons, if any, have been duly
authorized and established in conformity with the terms of this Indenture;
(ii) in the case of an underwritten offering, the terms of the
Securities have been duly authorized and established in conformity with
the terms of this Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities have been established
pursuant to a Board Resolution, an Officer's Certificate or a supplemental
indenture in accordance with the terms of this Indenture, and when such
other terms as are to be established pursuant to procedures set forth in
an Issuer Order shall have been established, all such terms will have been
duly authorized by the Issuer and will have been established in conformity
with the terms of this Indenture;
(iii) when the Securities and Coupons, if any, have been executed by
the Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this Indenture
and will be valid and binding obligations of the Issuer, enforceable
against the Issuer in accordance with their respective terms, and will be
entitled to the benefits of this Indenture;
(iv) no consent, approval, authorization, order, registration or
qualification of or with any federal, New York or Wisconsin governmental
agency or body or any Delaware governmental agency or body acting pursuant
to the Delaware General Corporation Law, or, to such counsel's knowledge,
any federal, New York or Wisconsin court or any Delaware court acting
pursuant to the Delaware General Corporation Law is required for the
issuance or sale of the Securities and Coupons, if any, by the Issuer; and
(v) the issuance and sale of the Securities and Coupons, if any, by
the Issuer will not breach or result in a default under, (a) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument identified on an attached schedule furnished to such counsel by
the Issuer and which the Issuer
13
has represented lists all material agreements and instruments to which it
or any of its subsidiaries is a party or by which the Issuer or any of its
subsidiaries is bound or to which any of the property or assets of the
Issuer or any of its subsidiaries is subject, (b) the certificate of
incorporation or by-laws of the Issuer or (c) any federal, New York or
Wisconsin statute or the Delaware General Corporation Law or any rule or
regulation that has been issued pursuant to any federal, New York or
Wisconsin statute or the Delaware General Corporation Law or any order
known to us issued pursuant to any federal, New York or Wisconsin statute
or the Delaware General Corporation Law by any court or governmental
agency or body having jurisdiction over the Issuer or any of its
subsidiaries or any of their properties, except, in the case of clauses
(a) and (c), as would not, individually or in the aggregate, have a
material adverse effect.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws of general applicability affecting the rights and remedies of creditors and
is subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
State of New York and the federal law of the United States, upon opinions of
other counsel (copies of which shall be delivered to the Trustee), who shall be
counsel reasonably satisfactory to the Trustee, in which case the opinion shall
state that such counsel believes he and the Trustee are entitled so to rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, he has relied, to the extent he deems proper, upon certificates of
officers of the Issuer and its subsidiaries and certificates of public
officials.
The Indenture Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Indenture Trustee, being
advised by counsel, determines that such action may not lawfully be taken by the
Issuer or if the Indenture Trustee in good faith by its board of directors or
board of trustees, executive committee, or a trust committee of directors or
trustees or Responsible Officers shall determine that such action would expose
the Indenture Trustee to personal liability to existing Holders or would affect
the Indenture Trustee's own rights, duties or immunities under the Securities,
this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.03 that the Securities
of a series are to be issued in the form of one or more Registered Global
Securities, then the Issuer shall execute and the Indenture Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series issued and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Registered
Global Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Indenture Trustee to such Depositary or pursuant to such
Depositary's instructions
14
and (iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 2.03 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
Section 2.05. Execution of Securities. The Securities and, if applicable,
each Coupon appertaining thereto shall be signed on behalf of the Issuer by one
of the following: the Chairman of the Board, the Chief Executive Officer, the
President, an Executive Vice President, the Chief Financial Officer, the General
Counsel or the Treasurer, or any other person authorized by the Board of
Directors to execute Securities or, if applicable, Coupons, which Securities or
Coupons may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. Minor errors or
defects in any such reproduction of any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Indenture Trustee or
disposed of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Security or Coupon had not ceased to be such officer of the Issuer; and any
Security or Coupon may be signed on behalf of the Issuer by such persons as, at
the actual date of the execution of such Security or Coupon, shall be the proper
officers of the Issuer, although at the date of the execution and delivery of
this Indenture any such person was not such an officer.
Section 2.06. Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Indenture Trustee by the manual signature
of one of its authorized officers, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. No Coupon shall be entitled
to the benefits of this Indenture or shall be valid and obligatory for any
purpose until the certificate of authentication on the Security to which such
Coupon appertains shall have been duly executed by the Indenture Trustee. The
execution of such certificate by the Indenture Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
15
Section 2.07. Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by Section
2.03 or, with respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established,
such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Indenture Trustee, as
evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section 2.03.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.03.
The Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the Persons in whose names Outstanding
Registered Securities for such series are registered at the close of business on
a subsequent record date (which shall be not less than five Business Days prior
to the date of payment of such defaulted interest) established by notice given
by mail by or on behalf of the Issuer to the Holders of Registered Securities
not less than 15 days preceding such subsequent record date. The term "RECORD
DATE" as used with respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any series shall mean the
date specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.03, or, if no such date is so
established, the 15th calendar day, whether or not a Business Day, before the
applicable payment date.
Section 2.08 Registration, Transfer and Exchange. The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.02 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Indenture Trustee.
16
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.02, the Issuer shall execute and the Indenture
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.02
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.03, at
the option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall
be maintained for such purpose in accordance with Section 3.02, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter provided. At
the option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than one
authorized denomination, except as otherwise specified pursuant to Section 2.03,
such Unregistered Securities may be exchanged for Unregistered Securities of
such series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.02 or as specified pursuant to Section 2.03 with, in the case of
Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. Unless otherwise
specified pursuant to Section 2.03, Registered Securities of any series may not
be exchanged for Unregistered Securities of such series. Whenever any Securities
are so surrendered for exchange, the Issuer shall execute, and the Indenture
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. All Securities and Coupons surrendered upon
any exchange or transfer provided for in this Indenture shall be promptly
cancelled and disposed of by the Indenture Trustee and the Indenture Trustee
will deliver a certificate of disposition thereof to the Issuer.
17
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer and the
Indenture Trustee duly executed by the Holder or his attorney duly authorized in
writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing of notice of redemption of Securities of such series to be redeemed or
(b) any Securities selected, called or being called for redemption, in whole or
in part, except, in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.08, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Issuer that
it is unwilling or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such Registered Securities shall
no longer be eligible under Section 2.04, the Issuer shall appoint a successor
Depositary eligible under Section 2.04 with respect to such Registered
Securities. If a successor Depositary eligible under Section 2.04 for such
Registered Securities is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility, the Issuer's
election pursuant to Section 2.03 that such Registered Securities be represented
by one or more Registered Global Securities shall no longer be effective and the
Issuer will execute, and the Indenture Trustee, upon receipt of an Officer's
Certificate for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more Registered
Global Securities shall no longer be represented by a Registered Global Security
or Securities. In such
18
event the Issuer will execute, and the Indenture Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities, in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.03 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Indenture Trustee shall
authenticate and deliver, without service charge,
(a) to the Person specified by such Depositary a new Registered Security
or Securities of the same series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Registered Global Security; and
(b) to such Depositary a new Registered Global Security in a denomination
equal to the difference, if any, between the principal amount of the surrendered
Registered Global Security and the aggregate principal amount of Registered
Securities authenticated and delivered pursuant to clause (a) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without coupons, in authorized denominations, such
Registered Global Security shall be cancelled by the Indenture Trustee or an
agent of the Issuer or the Indenture Trustee. Securities in definitive
registered form without coupons issued in exchange for a Registered Global
Security pursuant to this Section 2.08 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Indenture Trustee or an agent of the Issuer or the
Indenture Trustee. The Indenture Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee (any of which, other than the
Issuer, shall rely on an Officer's Certificate and an Opinion of Counsel) shall
be required to exchange any Unregistered Security for a Registered Security if
such exchange would result in adverse Federal income tax consequences to the
Issuer (such as, for example, the inability of the Issuer to
19
deduct from its income, as computed for Federal income tax purposes, the
interest payable on the Unregistered Securities) under then applicable United
States Federal income tax laws.
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security or any Coupon appertaining to any
Security shall become mutilated, defaced or be destroyed, lost or stolen, the
Issuer in its discretion may execute, and upon the written request of any
officer of the Issuer, the Indenture Trustee shall authenticate and deliver a
new Security of the same series, maturity date, interest rate and original issue
date, bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen
with Coupons corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution
for the Security to which such mutilated, defaced, destroyed, lost or stolen
Coupon appertained, with Coupons appertaining thereto corresponding to the
Coupons so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Issuer and to
the Indenture Trustee and any agent of the Issuer or the Indenture Trustee such
security or indemnity as may be required by them to indemnify and defend and to
save each of them harmless and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof and in the case of mutilation or
defacement shall surrender the Security and related Coupons to the Indenture
Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Indenture Trustee or its agent) connected
therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuer may, instead of issuing a
substitute Security, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Indenture Trustee and any agent of the
Issuer or the Indenture Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Every substitute Security or Coupon of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with
20
any and all other Securities or Coupons of such series duly authenticated and
delivered hereunder. All Securities and Coupons shall be held and owned upon the
express condition that, to the extent permitted by law, the foregoing provisions
are exclusive with respect to the replacement or payment of mutilated, defaced
or destroyed, lost or stolen Securities and Coupons and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.10. Cancellation of Securities; Disposition Thereof. All
Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Indenture Trustee or any agent of the Indenture Trustee, shall be delivered
to the Indenture Trustee or its agent for cancellation or, if surrendered to the
Indenture Trustee, shall be cancelled by it; and no Securities or Coupons shall
be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Indenture Trustee or its agent shall return such
cancelled Securities and Coupons held by it to the Issuer. If the Issuer or its
agent shall acquire any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Indenture
Trustee or its agent for cancellation.
Section 2.11. Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Indenture Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Indenture Trustee). Temporary Securities of any series shall
be issuable as Registered Securities without coupons, or as Unregistered
Securities with or without coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Indenture Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to any
provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Indenture Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Registered Securities of such series may be surrendered in
exchange therefor without charge at each office or agency to be maintained by
the Issuer for that purpose pursuant to Section 3.02 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer for such purpose
as specified pursuant to Section 2.03, and the Indenture Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
21
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series, unless otherwise
established pursuant to Section 2.03. The provisions of this Section are subject
to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to
Section 2.03 (including any provision that Unregistered Securities of such
series initially be issued in the form of a single global Unregistered Security
to be delivered to a depositary or agency located outside the United States and
the procedures pursuant to which definitive or global Unregistered Securities of
such series would be issued in exchange for such temporary global Unregistered
Security).
ARTICLE 3
COVENANTS OF THE ISSUER
Section 3.01. Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary Unregistered
Security provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as
to the other installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest, in each case
subject to any restrictions that may be established pursuant to Section 2.03.
The interest on Registered Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Holders thereof and, at the option of the Issuer,
may be paid by wire transfer or by mailing checks for such interest payable to
or upon the written order of such Holders at their last addresses as they appear
on the registry books of the Issuer; provided, however, that, if the Securities
of such series are held by a GW Capital Trust or a trustee of such trust and a
holder of a Trust Preferred Security of such trust brings a successful Direct
Action with respect to any interest payable on such Securities, such interest
will be payable directly to such holder. In such event, the Issuer will have the
right to set-off such payment to such holder against its obligation to pay
interest on such Securities to such GW Capital Trust.
Section 3.02 . Offices for Payments, etc. So long as any Registered
Securities are authorized for issuance pursuant to this Indenture or are
outstanding hereunder, the Issuer
22
will maintain in Wilmington, Delaware, an office or agency where the Registered
Securities of each series may be presented for payment, where the Securities of
each series may be presented for exchange as is provided in this Indenture and,
if applicable, pursuant to Section 2.03 and where the Registered Securities of
each series may be presented for registration of transfer as in this Indenture
provided.
The Issuer initially appoints the Corporate Trust Office of the Indenture
Trustee in Wilmington, Delaware, as its agency for the foregoing purposes. The
Issuer may subsequently appoint a different office or agency of the Issuer in
Wilmington, Delaware. The Issuer further initially appoints the Indenture
Trustee at said Corporate Trust Office as Security registrar for each series of
Securities. The Issuer will have the right to remove and replace from time to
time the Security registrar for any series of Securities; provided that no such
removal or replacement will be effective until a successor Security registrar
with respect to such series of Securities has been appointed by the Issuer and
has accepted such appointment.
The Issuer will maintain in Wilmington, Delaware, an office or agency
where notices and demands to or upon the Issuer in respect of the Securities of
any series, the Coupons appertaining thereto or this Indenture may be served.
The Issuer will give to the Indenture Trustee written notice of the
location of each such office or agency and of any change of location thereof. In
case the Issuer shall fail to maintain any agency required by this Section to be
located in Wilmington, Delaware, or shall fail to give such notice of the
location or of any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Indenture Trustee.
The Issuer may from time to time designate one or more additional offices
or agencies where the Securities of a series and any Coupons appertaining
thereto may be presented for payment, where the Securities of that series may be
presented for exchange as provided in this Indenture and pursuant to Section
2.03 and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Issuer may from
time to time rescind any such designation, as the Issuer may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain the agencies
provided for in this Section. The Issuer will give to the Indenture Trustee
prompt written notice of any such designation or rescission thereof.
Section 3.03. Appointment to Fill a Vacancy in Office of Indenture
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office
of Indenture Trustee, will appoint, in the manner provided in Section 6.10, an
Indenture Trustee, so that there shall at all times be an Indenture Trustee with
respect to each series of Securities hereunder.
23
Section 3.04. Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Indenture Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Indenture
Trustee an instrument in which such agent shall agree with the Indenture
Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on
the Securities of such series) in trust for the benefit of the Holders of the
Securities of such series, or Coupons appertaining thereto, if any, or of the
Indenture Trustee,
(b) that it will give the Indenture Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series when
the same shall be due and payable, and
(c) that it will pay any such sums so held in trust by it to the Indenture
Trustee upon the Indenture Trustee's written request at any time during the
continuance of the failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Indenture Trustee) the Issuer will promptly notify the
Indenture Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer will promptly notify the Indenture Trustee of any
failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.01 and to the terms of any series of Securities, the Issuer may at
any time, for the purpose of obtaining a satisfaction and discharge with respect
to one or more or all series of Securities hereunder, or for any other reason,
pay or cause to be paid to the Indenture Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Indenture Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.03 and 11.04.
24
Section 3.05. Written Statement to Indenture Trustee. The Issuer will
furnish to the Indenture Trustee on or before March 31 in each year (beginning
with March 31, 2007) a brief certificate (which need not comply with Section
11.05) from the principal executive, financial or accounting officer of the
Issuer stating that in the course of the performance by the signer of his duties
as an officer of the Issuer he would normally have knowledge of any default or
non-compliance by the Issuer in the performance of any covenants or conditions
contained in this Indenture, stating whether or not he has knowledge of any such
default or non-compliance and, if so, specifying each such default or
non-compliance of which the signer has knowledge and the nature thereof.
Article 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE INDENTURE TRUSTEE
Section 4.01. Issuer to Furnish Indenture Trustee Information as to Names
and Addresses of Securityholders. If and so long as the Indenture Trustee shall
not be the Security registrar for the Securities of any series, the Issuer and
any other obligor on the Securities will furnish or cause to be furnished to the
Indenture Trustee a list in such form as the Indenture Trustee may reasonably
require of the names and addresses of the Holders of the Registered Securities
of such series pursuant to Section 312 of the Trust Indenture Act of 1939 (a)
semi-annually not more than 15 days after each record date for the payment of
interest on such Registered Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.03 for
non-interest bearing Registered Securities in each year, and (b) at such other
times as the Indenture Trustee may request in writing, within thirty days after
receipt by the Issuer of any such request as of a date not more than 15 days
prior to the time such information is furnished.
Section 4.02. Preservation and Disclosure of Securityholders Lists. This
Section intentionally left blank.
Section 4.03. Reports by the Issuer. The Issuer covenants to file with the
Indenture Trustee, within 15 days after the Issuer is required to file the same
with the Commission, copies of the annual reports and of the information,
documents, and other reports that the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 or pursuant to Section 314 of the Trust Indenture Act of 1939.
Section 4.04. Reports by the Indenture Trustee. Any Indenture Trustee's
report required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted on or before May 15 in each year beginning May 15, 2007, as provided
in Section 313(c) of the Trust Indenture Act of 1939, so long as any Securities
are Outstanding hereunder, and shall be dated as of a date convenient to the
Indenture Trustee no more than 60 days prior thereto.
25
Article 5
REMEDIES OF THE INDENTURE TRUSTEE AND SECURITYHOLDERS IN DEFAULT OR EVENT
OF DEFAULT
Section 5.01. Event of Default Defined; Acceleration of Maturity; Waiver
of Event of Default. "EVENT OF DEFAULT" with respect to Securities of any series
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless it is specifically
deleted or modified in the supplemental indenture, if any, under which such
series of Securities is issued:
(a) failure to pay in full the interest accrued on any Securities of such
series upon the conclusion of an extension of the interest payment period of six
consecutive quarters and continuance of that failure for a period of 30 days; or
(b) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Issuer in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Issuer or for any substantial part of
its property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(c) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Issuer or for any substantial part of its property, or make any general
assignment for the benefit of creditors; or
(d) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security for
such series.
If an Event of Default described in clause (a) or (d) (if the Event of
Default under clause (a) or (d) is with respect to less than all series of
Securities then Outstanding) occurs and is continuing, then, and in each and
every such case, except for any series of Securities the principal of which
shall have already become due and payable, either the Indenture Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
each such affected series then Outstanding hereunder (voting as a single class)
or, if the Securities of such series are held by a GW Capital Trust or a trustee
of such trust and should the Indenture Trustee or such Holders of the
Outstanding Securities fail to make the declaration referred to below, the
holders of at least 25% in aggregate liquidation amount of the outstanding Trust
Preferred Securities of such trust (voting as a
26
separate class) or the Property Trustee (as defined in the Trust Agreement), by
notice in writing to the Issuer (and to the Indenture Trustee if given by
Securityholders, the holders of Trust Preferred Securities or the Property
Trustee (as defined in the Trust Agreement)), may declare the entire principal
(or, if any of the Securities of any such affected series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such Securities) of all Securities of all such affected series or
of such series held by a GW Capital Trust, as the case may be, and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration, the same shall become immediately due and payable.
If an Event of Default described in clause (b), (c) or (d) (if the Event
of Default under clause (d) is with respect to all series of Securities then
Outstanding) occurs and is continuing, then and in each and every such case,
unless the principal of all the Securities shall have already become due and
payable, either the Indenture Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Securities then Outstanding hereunder
(treated as one class), or, if the Securities of any such series are held by a
GW Capital Trust or a trustee of such trust and should the Indenture Trustee or
such Holders of the Outstanding Securities fail to make the declaration referred
to below, the holders of at least 25% in aggregate liquidation amount of the
outstanding Trust Preferred Securities of such trust (treated as a separate
class) or the Property Trustee (as defined in the Trust Agreement), by notice in
writing to the Issuer (and to the Indenture Trustee if given by Securityholders,
the holders of Trust Preferred Securities or the Property Trustee (as defined in
the Trust Agreement)), may declare the entire principal (or, if any Securities
are Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then Outstanding or of
such series held by a GW Capital Trust, as the case may be, and interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Indenture Trustee a sum sufficient to pay all matured installments of interest
upon all the Securities of each such series (or of all the Securities, as the
case may be) and the principal of any and all Securities of each such series (or
of all the Securities, as the case may be) which shall have become due otherwise
than by acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series (or at the respective rates of interest or Yields to
Maturity of all the Securities, as the case may be) to the date of such payment
or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Indenture Trustee
27
and each predecessor Indenture Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee except as a result of
negligence or bad faith, and if any and all Defaults under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein then and in every such case the Holders of a majority in aggregate
principal amount of all the Securities of each such series or of all the
Securities then Outstanding, in each case voting as a single class (except that
each such series of Securities held by a GW Capital Trust shall vote as a
separate class), by written notice to the Issuer and to the Indenture Trustee,
may waive all Defaults with respect to each such series (or with respect to all
the Securities, as the case may be) and rescind and annul such declaration and
its consequences, but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent Default or shall impair any right consequent
thereon; provided however, that if the Securities of such series are held by a
GW Capital Trust or a trustee of such trust, (i) such waiver or rescission and
annulment shall not be effective until the holders of a majority in aggregate
liquidation amount of the Trust Preferred Securities of such trust shall have
consented to such waiver or rescission and annulment and (ii) should the Holders
of the Securities of such series fail to waive such Defaults and rescind and
annul such declaration and its consequences, the holders of a majority in
aggregate liquidation amount of the Trust Preferred Securities of such trust
shall have such right.
If the Securities of a series are held by a GW Capital Trust or a trustee
of such trust and an Event of Default or Default has occurred and is continuing
and such event is attributable to the failure of the Issuer to pay any amounts
payable in respect of such Securities on the date such amounts are otherwise
payable, a holder of Trust Preferred Securities of such trust may institute a
Direct Action. If the Issuer makes any payment to a holder of such Trust
Preferred Securities as a result of a Direct Action, the Issuer will have the
right to set-off any such payment against its obligation to make any
corresponding payment to such GW Capital Trust on such Securities.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section 5.02. Collection of Indebtedness by Indenture Trustee; Indenture
Trustee May Prove Debt. The Issuer covenants that (a) in case default shall be
made in the payment of any installment of interest on any of the Securities of
any series when such interest shall have become due and payable, and such
default shall have continued for a
28
period of 30 days or (b) in case default shall be made in the payment of all or
any part of the principal of any of the Securities of any series when the same
shall have become due and payable, whether upon maturity of the Securities of
such series or upon any redemption or by declaration or otherwise then upon
demand of the Indenture Trustee, the Issuer will pay to the Indenture Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal or interest, as the case may be (with interest
to the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Indenture Trustee and each predecessor Indenture
Trustee, their respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Indenture Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the Holders,
whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated,
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Title 11 of the United States Bankruptcy
Code or any other applicable Federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the
Issuer or other obligor upon the Securities, or to the creditors or property of
the Issuer or such other obligor, the Indenture Trustee, irrespective of whether
the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings or
otherwise:
(a) to file and prove a claim or claims for the whole amount of principal
and interest (or, if the Securities of any series are Original Issue Discount
Securities, such
29
portion of the principal amount as may be specified in the terms of such series)
owing and unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Indenture Trustee (including any claim for reasonable compensation
to the Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture Trustee and
each predecessor Indenture Trustee, except as a result of negligence or bad
faith) and of the Securityholders allowed in any judicial proceedings relative
to the Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Securities of any series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Indenture Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to the Securityholders, to pay
to the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Indenture
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 of any series or the rights of any Holder
thereof, or to authorize the Indenture Trustee to vote in respect of the claim
of any Securityholder in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Indenture Trustee without the possession of
any of the Securities of such series or Coupons appertaining to such Securities
or the production thereof on any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Indenture Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and compensation
of the Indenture Trustee, each predecessor Indenture Trustee and their
respective agents and attorneys, shall be for the ratable benefit of the Holders
of the
30
Securities or Coupons appertaining to such Securities in respect of which such
action was taken.
In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Securities or Coupons appertaining to
such Securities in respect to which such action was taken and it shall not be
necessary to make any Holders of such Securities or Coupons appertaining to such
Securities parties to any such proceedings.
Section 5.03. Applications of Proceeds. Any moneys collected by the
Indenture Trustee pursuant to this Article in respect of any series shall,
subject to the subordination provisions hereof, be applied in the following
order at the date or dates fixed by the Indenture Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which moneys have been collected, including
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee and their respective agents and attorneys and of all
expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result of
negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Indenture Trustee) upon the overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Indenture Trustee) upon overdue
31
installments of interest at the same rate as the rate of interest or Yield
to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and
interest or Yield to Maturity, without preference or priority of principal
over interest or Yield to Maturity, or of interest or Yield to Maturity
over principal, or of any installment of interest over any other
installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal and
accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other person lawfully entitled thereto.
Section 5.04. Suits for Enforcement. In case a Default has occurred, has
not been waived and is continuing, the Indenture Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Indenture Trustee shall deem most
effectual to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture or to enforce any other legal or equitable
right vested in the Indenture Trustee by this Indenture or by law.
Section 5.05. Restoration of Rights on Abandonment of Proceedings. In case
the Indenture Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Indenture Trustee, then
and in every such case the Issuer and the Indenture Trustee shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Issuer, the Indenture Trustee and the Securityholders
and any rights of holders of Trust Preferred Securities to institute a Direct
Action shall continue as though no such proceedings had been taken.
Section 5.06. Limitations on Suits by Securityholder; Default Defined. No
Holder of any Security of any series or of any Coupon appertaining thereto shall
have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Indenture Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of each
affected series then Outstanding (treated as a single class) shall have made
written request upon the Indenture Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to the
Indenture Trustee such reasonable indemnity as it may require
32
against the costs, expenses and liabilities to be incurred therein or thereby
and the Indenture Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Indenture Trustee pursuant to Section 5.09; it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Security or Coupon with every other taker and Holder and the Indenture
Trustee, that no one or more Holders of Securities of any series or Coupons
appertaining to such Securities shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities or Coupons
appertaining to such Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series and Coupons
appertaining to such Securities. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Indenture
Trustee shall be entitled to such relief as can be given either at law or in
equity.
"DEFAULT" with respect to Securities of any series wherever used herein,
means each one of the following events which shall have occurred and be
continuing (whatever the reason for such Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body) unless it is specifically deleted or
modified in the supplemental indenture, if any, under which such series of
Securities is issued:
(a) default in the payment of any installment of interest upon any of the
Securities of such series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; provided, however, that a
valid extension of an interest payment period in accordance with the terms of
the Securities of such series shall not constitute a default in the payment of
interest for this purpose; or
(b) default in the payment of all or any part of the principal on any of
the Securities of such series as and when the same shall become due and payable
either at maturity, upon any redemption, by declaration or otherwise; or
(c) failure on the part of the Issuer duly to observe or perform any other
of the covenants or agreements on the part of the Issuer in the Securities of
such series (other than a covenant or warranty in respect of the Securities of
such series a default in the performance or breach of which is elsewhere in this
Section or in Section 5.01 specifically dealt with) or contained in this
Indenture for a period of 60 days after the date on which written notice
specifying such failure, stating that such notice is a "NOTICE OF DEFAULT"
hereunder and demanding that the Issuer remedy the same, shall have been given
by registered or certified mail, return receipt requested, to the Issuer by the
Indenture Trustee, or to the Issuer and the Indenture Trustee by the holders of
at least 25% in aggregate principal amount of the Outstanding Securities of all
series affected
33
thereby and, if the Securities of such series are held by a GW Capital Trust or
a trustee of such trust and should the Indenture Trustee or such Holders of the
Outstanding Securities fail to give such notice, the holders of at least 25% in
aggregate liquidation amount of the outstanding Trust Preferred Securities of
such trust shall have the right to give such notice; or
(d) an Event of Default with respect to such series specified in Section
5.01; or
(e) any other Default provided in the supplemental indenture under which
such series of Securities is issued or in the form of Security for such series.
Section 5.07. Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or Coupon to receive
payment of the principal of and interest on such Security or Coupon on or after
the respective due dates expressed in such Security or Coupon, or to institute
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder; provided
however, that if a series of Securities is held by a GW Capital Trust, the
Holder of such Securities shall not give such consent without the consent of
each holder of the Trust Preferred Securities of such trust. Notwithstanding the
foregoing, nothing in this Section shall be deemed to impair the right of any
holder of Trust Preferred Securities to institute a Direct Action.
Section 5.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default; Restoration of Rights and Remedies. Except as provided in Section
5.06, no right or remedy herein conferred upon or reserved to the Indenture
Trustee or to the Holders of Securities or Coupons or to holders of the Trust
Preferred Securities is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Indenture Trustee or of any Holder of
Securities or Coupons or of any holder of Trust Preferred Securities to exercise
any right or power accruing upon any Default occurring and continuing as
aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Default or an acquiescence therein; and, subject to Section
5.06 every power and remedy given by this Indenture or by law to the Indenture
Trustee or to the Holders of Securities or Coupons or to holders of Trust
Preferred Securities may be exercised from time to time, and as often as shall
be deemed expedient, by the Indenture Trustee or by the Holders of Securities or
Coupons or by the holders of Trust Preferred Securities.
If the Indenture Trustee, any Holder or any holder of Trust Preferred
Securities has instituted any proceeding to enforce any right or remedy under
this Indenture and
34
such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Indenture Trustee, such Holder or such holder of
Trust Preferred Securities, then and in every case the Company, the Indenture
Trustee, the Holders and such holder of Trust Preferred Securities shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Indenture Trustee, the Holders and the holders of Trust
Preferred Securities shall continue as though no such proceeding had been
instituted.
Section 5.09. Control by Holders of Securities. The Holders of a majority
in aggregate principal amount of the Securities of each series affected (with
all such series voting as a single class) at the time Outstanding shall have the
right to direct the time, method, and place of conducting any proceeding for any
remedy available to the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee with respect to the Securities of such series
by this Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided further
that (subject to the provisions of Section 6.01) the Indenture Trustee shall
have the right to decline to follow any such direction if the Indenture Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Indenture Trustee in good faith by
its board of directors, the executive committee, or a trust committee of
directors or Responsible Officers of the Indenture Trustee shall determine that
the action or proceedings so directed would involve the Indenture Trustee in
personal liability or if the Indenture Trustee in good faith shall so determine
that the actions or forbearances specified in or pursuant to such direction
would be unduly prejudicial to the interests of Holders of the Securities of all
series so affected not joining in the giving of said direction, it being
understood that (subject to Section 6.01) the Indenture Trustee shall have no
duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Indenture Trustee
in its discretion to take any action deemed proper by the Indenture Trustee and
which is not inconsistent with such direction or directions by Securityholders.
Section 5.10. Waiver of Past Defaults. Prior to the acceleration of the
maturity of any Securities as provided in Section 5.01, the Holders of a
majority in aggregate principal amount of the Securities of all series at the
time Outstanding with respect to which a Default shall have occurred and be
continuing (voting as a single class) may on behalf of the Holders of all such
Securities waive any past Default and its consequences, except a Default in the
payment of principal or interest (unless such Default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Indenture Trustee) or
a Default in respect of a covenant or provision hereof which cannot be modified
or amended without the consent of the Holder of each Security affected;
provided, that if the Securities of such series are held by a GW Capital Trust
or a trustee of such trust, such waiver shall not be effective as to such
Securities unless the holders of at least a majority
35
in aggregate liquidation amount of the Trust Preferred Securities of such trust
shall have consented to such waiver; provided further, that if the consent of
the Holder of each Outstanding Security of such series is required, such waiver
shall not be effective unless each holder of the Trust Preferred Securities of
such trust shall have consented to such waiver. In the case of any such waiver,
the Issuer, the Indenture Trustee, the Holders of all such Securities and the
holders of any Trust Preferred Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Default or Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
Section 5.11. Indenture Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Indenture Trustee shall, within ninety
days after the occurrence of a default with respect to the Securities of any
series, give notice of all defaults with respect to that series known to the
Indenture Trustee (a) if any Unregistered Securities of that series are then
Outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper and (b) by mail to all Holders of Registered Securities of
such series and to such other Holders of Securities as have, within two years
preceding such transmission, filed their names and addresses with the Indenture
Trustee for that purpose, unless in each case such defaults shall have been
cured before the mailing or publication of such notice (the term "DEFAULTS" for
the purpose of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, a Default or
Event of Default); provided that, except in the case of default in the payment
of the principal of or interest on any of the Securities of such series, or in
the payment of any sinking fund installment on such series, the Indenture
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or trustees and/or Responsible Officers of the Indenture Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series.
Section 5.12. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security or
Coupon by his acceptance thereof shall be deemed to have agreed, that any court
may, in its discretion, require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Indenture Trustee for any
action taken, suffered or omitted by it as Indenture Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Indenture Trustee, to any suit instituted by any
Securityholder or group of Securityholders of any
36
series holding in the aggregate more than 10% in aggregate principal amount of
the Securities of such series, or, in the case of any suit relating to or
arising under clause (d) of Section 5.01 or clause (c) or (e) of Section 5.06
(if the suit relates to Securities of more than one but less than all series),
10% in aggregate principal amount of Securities then Outstanding and affected
thereby, or in the case of any suit relating to or arising under clause (b) or
(c) of Section 5.01, 10% in aggregate principal amount of all Securities then
Outstanding, or to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of or interest (including any Additional
Interest) on any Security on or after the due date expressed in such Security or
any date fixed for redemption.
Article 6
CONCERNING THE INDENTURE TRUSTEE
Section 6.01. Duties and Responsibilities of the Indenture Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Indenture Trustee, prior to the occurrence of a
Default with respect to the Securities of a particular series and after the
curing or waiving of all Defaults which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case a Default with respect to the
Securities of a series has occurred (which has not been cured or waived), the
Indenture Trustee shall exercise with respect to such series of Securities such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Indenture
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of a Default with respect to the Securities of
any series and after the curing or waiving of all such Defaults with respect to
such series which may have occurred:
(i) the duties and obligations of the Indenture Trustee with respect
to the Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Indenture Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Indenture
Trustee; and
(ii) in the absence of bad faith on the part of the Indenture
Trustee, the Indenture Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
any statements, certificates or opinions furnished to the Indenture
Trustee and conforming to the requirements of
37
this Indenture; but in the case of any such statements, certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Indenture Trustee, the Indenture Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Indenture Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Indenture Trustee, unless it shall be proved that the Indenture Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Indenture Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.09 relating to the time, method
and place of conducting any proceeding for any remedy available to the Indenture
Trustee, or exercising any trust or power conferred upon the Indenture Trustee,
under this Indenture.
None of the provisions contained in this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur personal
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 ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.01 are in furtherance of and subject to
Section 315 of the Trust Indenture Act of 1939.
Section 6.02. Certain Rights of the Indenture Trustee. In furtherance of
and subject to the Trust Indenture Act of 1939, and subject to Section 6.01:
(a) the Indenture Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Issuer mentioned herein
shall be sufficiently evidenced by an Officer's Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Indenture Trustee
by a copy thereof certified by the secretary or an assistant secretary of the
Issuer;
(c) the Indenture Trustee may consult with counsel and any written advice
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon in accordance with such advice
or Opinion of Counsel;
38
(d) the Indenture Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Indenture
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Indenture Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of a Default hereunder and after the curing or
waiving of all Defaults, the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series affected
then Outstanding; provided that, if the payment within a reasonable time to the
Indenture Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Indenture
Trustee, not reasonably assured to the Indenture Trustee by the security
afforded to it by the terms of this Indenture, the Indenture Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid by
the Issuer or, if paid by the Indenture Trustee or any predecessor Indenture
Trustee, shall be repaid by the Issuer upon demand; and
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
Section 6.03. Indenture Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Indenture Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the
Indenture Trustee assumes no responsibility for the correctness of the same. The
Indenture Trustee makes no representation as to the validity or sufficiency of
this Indenture or of the Securities or Coupons. The Indenture Trustee shall not
be accountable for the use or application by the Issuer of any of the Securities
or of the proceeds thereof.
Section 6.04. Indenture Trustee and Agents May Hold Securities or Coupons;
Collections, etc. The Indenture Trustee or any agent of the Issuer or the
Indenture Trustee, in its individual or any other capacity, may become the owner
or pledgee of Securities or Coupons with the same rights it would have if it
were not the Indenture
39
Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Indenture Trustee or such agent.
Section 6.05. Moneys Held by Indenture Trustee. Subject to the provisions
of Section 10.04 hereof, all moneys received by the Indenture Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Neither the Indenture
Trustee nor any agent of the Issuer or the Indenture Trustee shall be under any
liability for interest on any moneys received by it hereunder.
Section 6.06. Compensation and Indemnification of Indenture Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Indenture Trustee
from time to time, and the Indenture Trustee shall be entitled to, such
compensation as the parties shall agree in writing from time to time (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Indenture Trustee and each predecessor Indenture Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Issuer also covenants to indemnify the Indenture Trustee and each
predecessor Indenture Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the costs
and expenses of defending itself against or investigating any claim of liability
in the premises. The obligations of the Issuer under this Section to compensate
and indemnify the Indenture Trustee and each predecessor Indenture Trustee and
to pay or reimburse the Indenture Trustee and each predecessor Indenture Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Indenture
Trustee as such, except funds held in trust for the benefit of the Holders of
particular Securities or Coupons, and the Securities are hereby subordinated to
such senior claim.
Section 6.07. Right of Indenture Trustee to Rely on Officer's Certificate,
etc. Subject to Sections 6.01 and 6.02, whenever in the administration of the
trusts of this Indenture the Indenture Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Indenture Trustee, be deemed to be conclusively
proved and established by an Officer's Certificate delivered to the
40
Indenture Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Indenture Trustee, shall be full warrant to the
Indenture Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section 6.08. Indentures Not Creating Potential Conflicting Interests for
the Indenture Trustee. The following indenture is hereby specifically described
for the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939: this
Indenture with respect to the Securities of any other series.
Section 6.09. Persons Eligible for Appointment as Indenture Trustee. The
Indenture Trustee for each series of Securities hereunder shall at all times be
a corporation organized and doing business under the laws of the United States
of America or of any State or the District of Columbia having a combined capital
and surplus of at least $50,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
Federal, State or District of Columbia authority. Such corporation shall have
its principal place of business in Wilmington, Delaware if there be such a
corporation in such location willing to act upon reasonable and customary terms
and conditions. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Indenture Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Indenture Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
The provisions of this Section 6.09 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act of 1939.
Section 6.10. Resignation and Removal; Appointment of Successor Trustee.
(a) The Indenture Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper, (ii) if any Unregistered Securities of a series affected
are then Outstanding, by mailing notice of such resignation to the Holders
thereof who have filed their names and addresses with the Indenture Trustee
within the two years preceding the notice at such addresses as were so furnished
to the Indenture Trustee and (iii) by mailing notice of such resignation to the
Holders of then Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Indenture Trustee and one copy to
41
the successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Indenture Trustee shall fail to comply with the provisions
of Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or by
any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Indenture Trustee shall cease to be eligible in accordance
with the provisions of Section 6.09 and Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or
(iii) the Indenture Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Indenture Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Indenture Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Indenture Trustee with respect
to the applicable series of Securities and appoint a successor trustee for such
series by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the
Indenture Trustee so removed and one copy to the successor trustee, or, subject
to the provisions of Section 315(e) of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Indenture Trustee and the appointment of a successor trustee with respect
to such series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Indenture Trustee and appoint a successor
trustee. If no successor trustee shall have been so appointed with respect to
any series and have accepted appointment within 30 days after the mailing of
such notice of removal, the retiring trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the
42
applicable series for at least six months may, subject to the provisions of
Section 5.12, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Indenture Trustee with respect to Securities of such series and appoint a
successor trustee with respect to the Securities of such series by delivering to
the Indenture Trustee so removed, to the successor trustee so appointed and to
the Issuer the evidence provided for in Section 7.01 of the action in that
regard taken by the Securityholders.
(d) Any resignation or removal of the Indenture Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 6.11.
Section 6.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.04,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor Indenture Trustee and
each successor trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Indenture Trustee with
respect to the Securities of any series as to which the predecessor Indenture
Trustee is not retiring shall continue to be vested in the predecessor Indenture
Trustee, and shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such
43
supplemental indenture shall constitute such trustees co-trustees of the same
trust and that each such trustee shall be trustee of a trust or trusts under
separate indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 6.09.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11 the Issuer shall give notice thereof (a) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof, by
publication of such notice at least once in an Authorized Newspaper, (b) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Indenture
Trustee within the two years preceding the notice, by mailing such notice to
such Holders at such addresses as were so furnished to the Indenture Trustee
(and the Indenture Trustee shall make such information available to the Issuer
for such purpose) and (c) to the Holders of Registered Securities of each series
affected, by mailing such notice to such Holders at their addresses as they
shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to give such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business
of Indenture Trustee. Any corporation into which the Indenture Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Indenture
Trustee shall be a party, or any corporation succeeding to the corporate trust
business of the Indenture Trustee, shall be the successor of the Indenture
Trustee hereunder, provided that such corporation shall be qualified under
Section 310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 6.09, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Indenture Trustee shall succeed
to the trusts created by this Indenture any of the Securities of any series
shall have been authenticated but not delivered, any such successor to the
Indenture Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee and deliver such Securities so authenticated; and, in case at
that time any of the Securities of any series shall not have been authenticated,
any successor to the Indenture Trustee may authenticate such Securities either
in the name of any predecessor hereunder or in the name of the successor
trustee; and in all such cases such certificate shall have the full force which
it is anywhere in the Securities of such series or in this Indenture provided
that the certificate of the Indenture Trustee shall have; provided, that the
right to adopt
44
the certificate of authentication of any predecessor Indenture Trustee or to
authenticate Securities of any series in the name of any predecessor Indenture
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 6.13. Preferential Collection of Claims Against the Issuer. This
Section intentionally left blank.
Section 6.14. Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Indenture Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an authenticating
agent (the "AUTHENTICATING AGENT") which shall be authorized to act on behalf of
the Indenture Trustee to authenticate Securities, including Securities issued
upon exchange, registration of transfer, partial redemption or pursuant to
Section 2.09. Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Indenture Trustee. Whenever reference is made in this Indenture to the
authentication and delivery of Securities of any series by the Indenture Trustee
or to the Indenture Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the
Indenture Trustee by an Authenticating Agent for such series and a Certificate
of Authentication executed on behalf of the Indenture Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in Section 6.09 with respect to the Indenture Trustee)
and subject to supervision or examination by Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Indenture Trustee or such Authenticating Agent. Any Authenticating Agent may
at any time, and if it shall cease to be eligible shall, resign by giving
written notice of resignation to the Indenture Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Indenture Trustee shall upon receipt of an Issuer
Order appoint a successor Authenticating Agent and the Issuer shall provide
notice of such appointment to all Holders of Securities of such series in the
manner and to the extent provided in Section 11.04. Any successor Authenticating
Agent upon acceptance of its appointment
45
hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent. The Issuer agrees to pay to the Authenticating
Agent for such series from time to time reasonable compensation. The
Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Indenture Trustee.
Sections 6.02, 6.03, 6.04, 6.06, 6.09 and 7.03 shall be applicable to any
Authenticating Agent.
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
Section 7.01. Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series or holders of Trust
Preferred Securities interested therein may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such specified
percentage of Securityholders or holders of Trust Preferred Securities in person
or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Indenture Trustee. Proof of execution of any instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Sections 6.01 and 6.02) conclusive in favor of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Article.
Section 7.02. Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.01 and 6.02, the execution of any instrument
by a Securityholder or, if a series of Securities is held by a GW Capital Trust,
a holder of Trust Preferred Securities or, in each case, his agent or proxy may
be proved in the following manner:
(a) The fact and date of the execution by any Holder or, if a series of
Securities is held by a GW Capital Trust, by any holder of Trust Preferred
Securities of any instrument may be proved by the certificate of any notary
public or other officer of any jurisdiction authorized to take acknowledgments
of deeds or administer oaths that the person executing such instruments
acknowledged to him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such officer. Where such
execution is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute sufficient proof of the authority
of the person executing the same. The fact of the holding by any Holder or, if a
series of Securities is held by a GW Capital Trust, by any holder of Trust
Preferred Securities of an Unregistered Security of any series, and the
identifying number of such Security and the date of his holding the same, may be
proved by the production of such Security or by a certificate executed by any
trust company, bank, banker or recognized
46
securities dealer wherever situated satisfactory to the Indenture Trustee, if
such certificate shall be deemed by the Indenture Trustee to be satisfactory.
Each such certificate shall be dated and shall state that on the date thereof a
Security of such series bearing a specified identifying number was deposited
with or exhibited to such trust company, bank, banker or recognized securities
dealer by the person named in such certificate. Any such certificate may be
issued in respect of one or more Unregistered Securities of one or more series
specified therein. The holding by the person named in any such certificate of
any Unregistered Securities of any series specified therein shall be presumed to
continue for a period of one year from the date of such certificate unless at
the time of any determination of such holding (i) another certificate bearing a
later date issued in respect of the same Securities shall be produced, or (ii)
the Security of such series specified in such certificate shall be produced by
some other person, or (iii) the Security of such series specified in such
certificate shall have ceased to be Outstanding. Subject to Sections 6.01 and
6.02, the fact and date of the execution of any such instrument and the amount
and numbers of Securities of any series held by the person so executing such
instrument and the amount and numbers of any Security or Securities for such
series may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Indenture Trustee for such series or in
any other manner which the Indenture Trustee for such series may deem
sufficient.
(b) In the case of Registered Securities, the ownership of such Securities
shall be proved by the Security register or by a certificate of the Security
registrar.
The Issuer may set a record date for purposes of determining the identity
of Holders of Registered Securities or, if a series of Securities is held by a
GW Capital Trust, of holders of registered Trust Preferred Securities of any
series entitled to vote or consent to any action referred to in Section 7.01,
which record date may be set at any time or from time to time by notice to the
Indenture Trustee, for any date or dates (in the case of any adjournment or
reconsideration) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any other
provisions hereof, with respect to Registered Securities of any series, only
Holders of Registered Securities or, if a series of Securities is held by a GW
Capital Trust, holders of registered Trust Preferred Securities of such series
of record on such record date shall be entitled to so vote or give such consent
or revoke such vote or consent.
Section 7.03. Holders to be Treated as Owners. The Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture Trustee may deem and treat
the person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and neither the Issuer nor the
Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be
affected by any notice to the contrary. The Issuer, the Indenture Trustee and
any agent of the Issuer or the Indenture Trustee may treat the Holder of any
47
Unregistered Security and the Holder of any Coupon or, if a series of Securities
is held by a GW Capital Trust, the holder of any unregistered Trust Preferred
Security as the absolute owner of such Unregistered Security or Coupon (whether
or not such Unregistered Security or Coupon shall be overdue) for the purpose of
receiving payment thereof or on account thereof and for all other purposes and
neither the Issuer, the Indenture Trustee, nor any agent of the Issuer or the
Indenture Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Unregistered Security or Coupon.
Notwithstanding the foregoing, if the Securities of such series are held
by a GW Capital Trust, nothing in this Section 7.03 shall be deemed to impair
the right of any holder of Trust Preferred Securities to institute a Direct
Action or to declare an Event of Default and accelerate the maturity of such
series.
Section 7.04. Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Indenture Trustee shall be protected in relying on any such direction, consent
or waiver only Securities which the Indenture Trustee knows are so owned shall
be so disregarded; provided, that, if the Securities of such series are held by
a GW Capital Trust or a trustee of such trust, the provisions of this Section
7.04 shall not apply. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Indenture Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Indenture
Trustee in accordance with such advice. Upon request of the Indenture Trustee,
the Issuer shall furnish to the Indenture Trustee promptly an Officer's
Certificate listing and identifying all Securities, if any, known by the Issuer
to be owned or held by or for the account of any of the above-described persons;
and, subject to Sections 6.01 and 6.02, the Indenture Trustee shall be entitled
to accept such Officer's Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Securities not listed therein are Outstanding
for the purpose of any such determination.
48
Section 7.05. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Indenture Trustee, as provided in Section
7.01, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security or, if any such series is held by a GW Capital Trust, any holder of a
Trust Preferred Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities issued
in exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon any
such Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Indenture Trustee and the Holders of all the
Securities affected by such action.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Indenture Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Indenture
Trustee as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the Issuer, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Issuer pursuant to Article 9;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Indenture Trustee
shall consider to be for the protection of the Holders of Securities or Coupons,
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions, conditions or provisions a Default
or an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which
49
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such a Default or Event of
Default or may limit the remedies available to the Indenture Trustee upon such a
Default or Event of Default or may limit the right of the Holders of a majority
in aggregate principal amount of the Securities of such series to waive such a
Default or Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, provided that no such action shall adversely affect the interests of
the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any series or of the
Coupons appertaining to such Securities as permitted by Sections 2.01 and 2.03;
and
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one trustee, pursuant to the requirements of Section 6.11.
The Indenture Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Indenture Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 8.02.
Section 8.02. Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article 7) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors
(which resolution may provide general terms or parameters for such action and
may provide that the specific terms of such action may be determined in
accordance with or pursuant to an Issuer Order), and the Indenture Trustee may,
from time to time and at any time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of each such series or of the Coupons appertaining to such
Securities; provided, that no such supplemental indenture shall (a) extend the
final maturity of any
50
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof, or make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable in any coin or
currency other than that provided in the Securities and Coupons or in accordance
with the terms thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 5.01 or the amount thereof provable in
bankruptcy pursuant to Section 5.02, or alter the provisions of Sections 11.11
or 11.12 or impair or affect the right of any Securityholder to institute suit
for the payment thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder, in each case without the consent
of the Holder of each Security so affected, or (b) reduce the aforesaid
percentage of Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the Holders
of each Security so affected; and provided further, that, if the Securities of
such series are held by a GW Capital Trust or a trustee of such trust, so long
as any of the Trust Preferred Securities of such trust remain outstanding, no
such modification may be made that materially adversely affects the holders of
such Trust Preferred Securities, no termination of this Indenture may occur, and
no waiver of any Event of Default or Default under this Indenture may be
effective, without the prior consent of the holders of at least a majority of
the aggregate liquidation amount of the outstanding Trust Preferred Securities
of such trust unless and until the principal of such Securities and all accrued
and unpaid interest thereon have been paid in full, and none of the
modifications described in clauses (a) and (b) above may be made without the
prior written consent of all the holders of Trust Preferred Securities of such
GW Capital Trust. In addition, the Issuer may not amend this Indenture to remove
the rights of holders of Trust Preferred Securities of a GW Capital Trust to
institute a Direct Action, to remove the obligation to obtain the consent of
such holders of Trust Preferred Securities in accordance with this Section or to
change the percentage of Trust Preferred Securities required to amend or waive
any provision of this Indenture, without the consent of all holders of the Trust
Preferred Securities of such Trust; and provided further, that the Issuer shall,
if then required under applicable laws, regulations or policies, seek the prior
approval of the Commission or any self-regulatory organization then having
jurisdiction before exercising its rights, if any, to enter into a supplemental
indenture to shorten the maturity of the Securities as a result of an adverse
tax event.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of Holders of Securities of such series, or of Coupons appertaining to
such Securities, with respect to such covenant or provision, shall be deemed not
to affect the rights under this Indenture of the Holders of Securities of any
other series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors (which resolution may provide general terms or parameters
for such
51
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order) certified by the secretary or
an assistant secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Indenture Trustee of
evidence of the consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.01, the Indenture Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Indenture Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Indenture
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Indenture Trustee shall give notice thereof (a) to the Holders of then
Outstanding Registered Securities of each series affected thereby, by mailing a
notice thereof by first-class mail to such Holders at their addresses as they
shall appear on the Security register, (b) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Indenture Trustee within two years
preceding such notice, by mailing a notice thereof by first-class mail to such
Holders at such addresses as were so furnished to the Indenture Trustee and (c)
if any Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof at least
once in an Authorized Newspaper, and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any failure of the
Issuer to give such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 8.03. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Indenture Trustee, the Issuer and the Holders of
Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 8.04. Documents to be Given to Indenture Trustee. The Indenture
Trustee, subject to the provisions of Sections 6.01 and 6.02, may receive an
Officer's Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental
52
indenture executed pursuant to this Article 8 complies with the applicable
provisions of this Indenture.
Section 8.05. Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Indenture Trustee for such
series as to any matter provided for by such supplemental indenture or as to any
action taken by Securityholders. If the Issuer or the Indenture Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Indenture Trustee and the Board of Directors, to any modification
of this Indenture contained in any such supplemental indenture may be prepared
by the Issuer, authenticated by the Indenture Trustee and delivered in exchange
for the Securities of such series then Outstanding.
Section 8.06. Subordination Unimpaired. This Indenture may not be amended
to alter the subordination of any of the Outstanding Securities without the
written consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby.
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.01. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions. The Issuer covenants that it will not merge or
consolidate with any other person or sell, lease or convey all or substantially
all of its assets to any other person, unless (a) either the Issuer shall be the
continuing corporation, or the successor corporation or the person which
acquires by sale, lease or conveyance substantially all the assets of the Issuer
(if other than the Issuer) shall be a corporation organized under the laws of
the United States of America or any State thereof or the District of Columbia
and shall expressly assume the due and punctual payment of the principal of and
interest on all the Securities and Coupons, if any, according to their tenor,
and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Issuer, by
supplemental indenture satisfactory to the Indenture Trustee, executed and
delivered to the Indenture Trustee by such corporation, and (b) the Issuer, such
person or such successor corporation, as the case may be, shall not, immediately
after such merger or consolidation, or such sale, lease or conveyance, be in
default in the performance of any such covenant or condition.
Section 9.02. Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either in its own name or in the name
53
of the Issuer prior to such succession any or all of the Securities issuable
hereunder which together with any Coupons appertaining thereto theretofore shall
not have been signed by the Issuer and delivered to the Indenture Trustee; and,
upon the order of such successor corporation, instead of the Issuer, and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Indenture Trustee shall authenticate and shall deliver any Securities together
with any Coupons appertaining thereto which previously shall have been signed
and delivered by the officers of the Issuer to the Indenture Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Indenture Trustee for that
purpose. All of the Securities so issued together with any Coupons appertaining
thereto shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phrasing and form (but not in substance) may be made in the
Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
Section 9.03. Opinion of Counsel Delivered to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.01. Satisfaction and Discharge of Indenture. (a) If at any time
(i) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all
unmatured Coupons appertaining thereto (other than Securities of such series and
Coupons appertaining thereto which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.09) as and when the same
shall have become due and payable, or (ii) the Issuer shall have delivered to
the Indenture Trustee for cancellation all Securities of any series theretofore
authenticated and all unmatured Coupons appertaining thereto (other than any
Securities of such series and Coupons appertaining thereto which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.09) or (iii) in the case of any series of Securities where the
exact amount (including the currency of payment) of principal of and interest
due on which can be
54
determined at the time of making the deposit referred to in clause (B) below,
(A) all the Securities of such series and all unmatured Coupons appertaining
thereto not theretofore delivered to the Indenture Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of notice of
redemption, and (B) the Issuer shall have irrevocably deposited or caused to be
deposited with the Indenture Trustee as trust funds the entire amount in cash
(other than moneys repaid by the Indenture Trustee or any paying agent to the
Issuer in accordance with Section 10.04) or, in the case of any series of
Securities the payments on which may only be made in Dollars, direct obligations
of the United States of America, backed by its full faith and credit ("U.S.
GOVERNMENT OBLIGATIONS"), maturing as to principal and interest at such times
and in such amounts as will insure the availability of cash, or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Indenture Trustee, to pay (1) the principal and interest on all
Securities of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable and (2) any mandatory sinking fund
payments on the dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series; and if, in
any such case, the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer with respect to the Securities of such series,
then this Indenture shall cease to be of further effect with respect to the
Securities of such series and the Coupons appertaining thereto (except as to (i)
rights of registration of transfer and exchange of Securities of such Series and
of Coupons appertaining thereto and the Issuer's right of optional redemption,
if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) rights of holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Indenture Trustee hereunder, (v) the rights of the Holders of Securities of
such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Indenture Trustee payable to all
or any of them, and (vi) the obligations of the Issuer under Section 3.02) and
the Indenture Trustee, on demand of the Issuer accompanied by an Officer's
Certificate and an Opinion of Counsel and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture as to such series; provided, that the rights of
Holders of the Securities and Coupons to receive amounts in respect of principal
of and interest on the Securities and Coupons held by them shall not be delayed
longer than required by then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. The Issuer agrees to
reimburse the Indenture Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Indenture Trustee for any services
thereafter reasonably and properly rendered by the Indenture Trustee in
connection with this Indenture or the Securities of such series.
55
(b) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officer's
Certificate or indenture supplemental hereto provided pursuant to Section 2.03.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts (including
the currency of payment) of principal of and interest due on which can be
determined at the time of making the deposit referred to in clause (i) below,
the Issuer shall be deemed to have paid and discharged the entire indebtedness
on all the Securities of such a series and the Coupons appertaining thereto on
the 91st day after the date of the deposit referred to in clause (i) below, and
the provisions of this Indenture with respect to the Securities of such series
and Coupons appertaining thereto shall no longer be in effect (except as to (A)
rights of registration of transfer and exchange of Securities of such series and
of Coupons appertaining thereto and the Issuer's right of optional redemption,
if any, (B) substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (C) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (D) the rights, obligations, duties and immunities of the
Indenture Trustee hereunder, (E) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof with respect to
the property so deposited with the Indenture Trustee payable to all or any of
them and (F) the obligations of the Issuer under Section 3.02) and the Indenture
Trustee, at the expense of the Issuer, shall at the Issuer's request, execute
proper instruments acknowledging the same, if
(i) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Indenture Trustee
as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such
series and Coupons appertaining thereto (A) cash in an amount, or (B) in
the case of any series of Securities the payments on which may only be
made in Dollars, U.S. Government Obligations, maturing as to principal and
interest at such times and in such amounts as will insure the availability
of cash or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Indenture Trustee, to pay
(1) the principal and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal or interest
is due and payable and (2) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound;
56
(iii) the Issuer has delivered to the Indenture Trustee an Opinion
of Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or (y)
since the date hereof, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and such opinion shall
confirm that, the Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred;
(iv) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
provision have been complied with;
(v) no event or condition shall exist that, pursuant to the
provisions of Section 13.01, would prevent the Issuer from making payments
of the principal of or interest on the Securities of such series and
Coupons appertaining thereto on the date of such deposit or at any time
during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until the expiration of such period); and
(vi) the Issuer has delivered to the Indenture Trustee an Opinion of
Counsel to the effect that (x) the trust funds will not be subject to any
rights of holders of Senior Indebtedness, including without limitation
those arising under Article 13 of this Indenture, and (y) after the 91st
day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally, except that if a court were to
rule under any such law in any case or proceeding that the trust funds
remained property of the Issuer, no opinion is given as to the effect of
such laws on the trust funds except the following: (A) assuming such trust
funds remained in the Indenture Trustee's possession prior to such court
ruling to the extent not paid to Holders of Securities of such series and
Coupons appertaining thereto, the Indenture Trustee will hold, for the
benefit of such Holders, a valid and perfected security interest in such
trust funds that is not avoidable in bankruptcy or otherwise, (B) such
Holders will be entitled to receive adequate protection of their interests
in such trust funds if such trust funds are used, and (C) no property,
rights in property or other interests granted to the Indenture Trustee or
such Holders in exchange for or with respect to any of such funds will be
subject to any prior rights of holders of Senior Indebtedness, including
without limitation those arising under Article 13 of this Indenture.
(c) The Issuer shall be released from its obligations under Section 9.01
with respect to the Securities of any Series, and any Coupons appertaining
thereto,
57
Outstanding on and after the date the conditions set forth below are satisfied
(hereinafter, "COVENANT DEFEASANCE"). For this purpose, such covenant defeasance
means that, with respect to the Outstanding Securities of any Series, the Issuer
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in such Section, whether directly or
indirectly by reason of any reference elsewhere herein to such Section or by
reason of any reference in such Section 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, but the remainder of this Indenture and such Securities and
Coupons shall be unaffected thereby. The following shall be the conditions to
application of this subsection (c) of this Section 10.01:
(i) The Issuer has irrevocably deposited or caused to be deposited
with the Indenture Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the holders of the Securities of such
series and Coupons appertaining thereto, (A) cash in an amount, (B) in the
case of any series of Securities the payments on which may only be made in
Dollars, U.S. Government Obligations maturing as to principal and interest
at such times and in such amounts as will insure the availability of cash
or (C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Indenture Trustee, to pay (1) the
principal and interest on all Securities of such series and Coupons
appertaining thereto and (2) any mandatory sinking fund payments on the
day on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series.
(ii) No Default or Event of Default or event which with notice or
lapse of time or both would become a Default or an Event of Default with
respect to the Securities shall have occurred and be continuing on the
date of such deposit or, insofar as subsections 5.01(b) and 5.01(c) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(iii) Such covenant defeasance shall not cause the Indenture Trustee
to have a conflicting interest as defined in Section 6.08 and for purposes
of the Trust Indenture Act of 1939 with respect to any securities of the
Issuer.
(iv) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Issuer is a party or by which it is
bound.
(v) Such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange under the Securities
Exchange Act of 1934, as amended, to be delisted.
58
(vi) No event or condition shall exist that, pursuant to the
provisions of Section 13.01, would prevent the Issuer from making payments
of the principal of or interest on the Securities of such series and
Coupons appertaining thereto on the date of such deposit or at any time
during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(vii) The Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and Opinion of Counsel to the effect that the
Holders of the Securities of such series and Coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(viii) The Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the covenant defeasance
contemplated by this provision have been complied with.
(ix) The Issuer has delivered to the Indenture Trustee an Opinion of
Counsel to the effect that (x) the trust funds will not be subject to any
rights of holders of Senior Indebtedness, including without limitation
those arising under Article 13 of this Indenture, and (y) after the 91st
day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally, except that if a court were to
rule under any such law in any case or proceeding that the trust funds
remained property of the Issuer, no opinion is given as to the effect of
such laws on the trust funds except the following: (A) assuming such trust
funds remained in the Indenture Trustee's possession prior to such court
ruling to the extent not paid to Holders of Securities of such series and
Coupons appertaining thereto, the Indenture Trustee will hold, for the
benefit of such Holders, a valid and perfected security interest in such
trust funds that is not avoidable in bankruptcy or otherwise, (B) such
Holders will be entitled to receive adequate protection of their interests
in such trust funds if such trust funds are used, and (C) no property,
rights in property or other interests granted to the Indenture Trustee or
such Holders in exchange for or with respect to any of such funds will be
subject to any prior rights of holders of Senior Indebtedness, including
without limitation those arising under Article 13 of this Indenture.
Section 10.02. Application by Indenture Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.04, all moneys deposited with the
Indenture Trustee (or other trustee) pursuant to Section 10.01 shall be held in
trust and applied by it to the payment, either directly or through any paying
agent (including the Issuer acting as its own paying agent), to the Holders of
the particular Securities of such series and of
59
Coupons appertaining thereto for the payment or redemption of which such moneys
have been deposited with the Indenture Trustee, of all sums due and to become
due thereon for principal and interest; but such money need not be segregated
from other funds except to the extent required by law.
Section 10.03. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Indenture Trustee and thereupon such
paying agent shall be released from all further liability with respect to such
moneys.
Section 10.04. Return of Moneys Held by Indenture Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Indenture
Trustee or any paying agent for the payment of the principal of or interest on
any Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Indenture Trustee for such series or such paying agent, and the Holder of the
Securities of such series and of any Coupons appertaining thereto shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Indenture
Trustee or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Indenture Trustee or such paying agent, before being
required to make any such repayment with respect to moneys deposited with it for
any payment (a) in respect of Registered Securities of any series, shall at the
expense of the Issuer, mail by first-class mail to Holders of such Securities at
their addresses as they shall appear on the Security register, and (b) in
respect of Unregistered Securities of any series, shall at the expense of the
Issuer cause to be published once, in an Authorized Newspaper, notice, that such
moneys remain and that, after a date specified therein, which shall not be less
than thirty days from the date of such mailing or publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer.
Section 10.05. Indemnity for U.S. Government Obligations. The Issuer shall
pay and indemnify the Indenture Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.01 or the principal or interest received in respect of
such obligations.
60
ARTICLE 11
MISCELLANEOUS PROVISIONS
Section 11.01 . Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
Section 11.02 . Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the holders of Senior Indebtedness and
the Holders of the Securities or Coupons, if any, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors, the holders of the Senior Indebtedness and
the Holders of the Securities or Coupons, if any.
Section 11.03 . Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
Section 11.04 . Notices and Demands on Issuer, Indenture Trustee and
Holders of Securities and Coupons. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the
Indenture Trustee or by the Holders of Securities or Coupons to or on the Issuer
may be given or served by being deposited postage prepaid, first-class mail
(except as otherwise specifically provided herein) addressed (until another
address of the Issuer is filed by the Issuer with the Indenture Trustee) to
Great Wolf Resorts, Inc., 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000,
Attention: Secretary. Any notice, direction, request or demand by the Issuer or
any Holder of Securities or Coupons to or upon the Indenture Trustee shall be
deemed to have been sufficiently given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Indenture Trustee is filed by the
Indenture Trustee with the Issuer) to Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration.
61
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his last address as it appears in the Security
register. In any case where notice to such Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Indenture
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably satisfactory to the
Indenture Trustee shall be deemed to be a sufficient giving of such notice.
Section 11.05 . Officer's Certificates and Opinions of Counsel; Statements
to be Contained Therein. Upon any application or demand by the Issuer to the
Indenture Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Indenture Trustee an Officer's
Certificate stating that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and delivered
to the Indenture Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an opinion
as to whether or not such covenant or condition has been complied with and (d) a
statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same
62
are erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Indenture Trustee shall contain a statement that
such firm is independent.
Section 11.06 . Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any such Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
Section 11.07 . Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by, or with another
provision (an "incorporated provision") included in this Indenture by operation
of, Sections 310 to 318, inclusive, of the Trust Indenture Act of 1939, such
imposed duties or incorporated provision shall control.
Section 11.08 . New York Law to Govern. This Indenture and each Security
and Coupon shall be governed by, and construed in accordance with, the laws of
New York.
Section 11.09 . Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
Section 11.10 . Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
63
Section 11.11 . Securities in a Foreign Currency. Unless otherwise
specified in an Officer's Certificate delivered pursuant to Section 2.03 of this
Indenture with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all series or all
series affected by a particular action at the time Outstanding and, at such
time, there are Outstanding Securities of any series which are denominated in a
Foreign Currency, then the principal amount of Securities of such series which
shall be deemed to be Outstanding for the purpose of taking such action shall be
that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate shall
mean the noon Dollar buying rate in New York City for cable transfers of that
currency published by the Federal Reserve Bank of New York. If such Market
Exchange Rate is not available for any reason with respect to such currency, the
Indenture Trustee shall use, in its sole discretion and without liability on its
part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in The City of
New York or in the country of issue of the currency in question, or such other
quotations as the Indenture Trustee shall deem appropriate. The provisions of
this paragraph shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other than Dollars
in connection with any action taken by Holders of Securities pursuant to the
terms of this Indenture.
All decisions and determinations of the Indenture Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Issuer and all Holders.
Section 11.12 . Judgment Currency. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "REQUIRED CURRENCY") into a currency in which a judgment will be rendered
(the "JUDGMENT CURRENCY"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Indenture Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which final unappealable judgment is entered, unless such
day is not a New York Banking Day, then, to the extent permitted by applicable
law, the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Indenture Trustee could purchase in The City of
New York the Required Currency with the Judgment Currency on the New York
Banking Day preceding the day on which a final unappealable judgment is entered,
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be
64
payable in respect of such payments, (ii) shall be enforceable as an alternative
or additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York or a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to close.
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.01 . Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series. The Issuer covenants that it shall, if then required
under applicable laws, regulations or policies, seek the prior approval of the
Securities and Exchange Commission or any self-regulatory organization then
having jurisdiction before redeeming any of the Securities.
Section 12.02 . Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, to such Holders
of Securities of such series at their last addresses as they shall appear upon
the registry books at least 30 days and not more than 60 days prior to the date
fixed for redemption, or within such other redemption notice period as has been
designated for any Securities of such series pursuant to Section 2.03 or Section
2.04 (the "REDEMPTION NOTICE PERIOD"). Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Indenture Trustee within the two years
preceding such notice of redemption, shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 and not more than
60 days prior to the date fixed for redemption or within any applicable
Redemption Notice Period to such Holders at such addresses as were so furnished
to the Indenture Trustee (and, in the case of any such notice given by the
Issuer, the Indenture Trustee shall make such information available to the
Issuer for such purpose). Notice of redemption to all other Holders of
Unregistered Securities shall be published in an Authorized Newspaper, in each
case, once in each of three successive calendar weeks, the first publication to
be not less than 30 nor more than 60 days prior to the date fixed for redemption
or within any applicable Redemption Notice Period; provided that notice to
Holders of Unregistered Securities held only in global form may be made, at the
option of the Issuer, through the customary notice provisions of the clearing
system or systems through which beneficial interests in such Unregistered
Securities are owned. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether
65
or not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
date fixed for redemption, the redemption price (or if not then ascertainable,
the manner of calculation thereof), the place or places of payment, that payment
will be made upon presentation and surrender of such Securities and, in the case
of Securities with Coupons attached thereto, of all Coupons appertaining thereto
maturing after the date fixed for redemption, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified in
such notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security of a series is
to be redeemed in part only the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a new Security
or Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Indenture Trustee in the name and at the expense of the Issuer.
Any notice of redemption may state that the redemption of the Securities
of any series may be, at the Issuer's discretion, subject to the satisfaction of
one or more conditions precedent.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Indenture
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.04) an amount of money or other property sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. The Issuer will deliver to the Indenture Trustee at least
10 days prior to the date fixed for redemption or at least 10 days prior to the
first day of any applicable Redemption Notice Period an Officer's Certificate
stating the aggregate principal amount of Securities to be redeemed. In case of
a redemption at the election of the Issuer prior to the expiration of any
restriction on such redemption, the Issuer shall deliver to the Indenture
Trustee, prior to the giving of any notice of redemption to Holders pursuant to
this Section, an Officer's Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Indenture Trustee shall select, in such manner as it shall deem appropriate and
fair, Securities of such Series
66
to be redeemed in whole or in part. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Indenture Trustee shall promptly notify the
Issuer in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities of any series shall relate, in the case of any Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
Section 12.03 . Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.05 and 10.04, such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
together with all Coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions thereof shall be
paid and redeemed by the Issuer at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to the
Holders of the Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.03 and 2.07 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Indenture Trustee, if there be furnished to each
of them such security or indemnity as they may require to save each of them
harmless.
67
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section 12.04 . Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Indenture Trustee at least
40 days prior to the last date on which notice of redemption may be given as
being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer.
Section 12.05 . Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Indenture Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Indenture Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Indenture Trustee at the sinking fund redemption price
specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date or
the 30th day next preceding the last day of any applicable Redemption Notice
Period relating to a sinking fund payment date for any series, the Issuer will
deliver to the Indenture Trustee an Officer's Certificate (which need not
contain the statements required by Section 11.05) (a) specifying the portion of
the mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series and the basis for
such credit, (b) stating that none of the Securities of such series has
theretofore been so credited, (c) stating that no defaults in the payment of
interest or Defaults or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends
68
to exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding sinking
fund payment date. Any Securities of such series to be credited and required to
be delivered to the Indenture Trustee in order for the Issuer to be entitled to
credit therefor as aforesaid which have not theretofore been delivered to the
Indenture Trustee shall be delivered for cancellation pursuant to Section 2.10
to the Indenture Trustee with such Officer's Certificate (or reasonably promptly
thereafter if acceptable to the Indenture Trustee). Such Officer's Certificate
shall be irrevocable and upon its receipt by the Indenture Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day or 30th day,
if applicable, to deliver such Officer's Certificate and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or the equivalent thereof in any Foreign Currency) or a lesser sum in Dollars
(or the equivalent thereof in any Foreign Currency) if the Issuer shall so
request with respect to the Securities of any particular series, such cash shall
be applied on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price together with
accrued interest to the date fixed for redemption. If such amount shall be
$50,000 (or the equivalent thereof in any Foreign Currency) or less and the
Issuer makes no such request then it shall be carried over until a sum in excess
of $50,000 (or the equivalent thereof in any Foreign Currency) is available. The
Indenture Trustee shall select, in the manner provided in Section 12.02, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officer's Certificate
delivered to the Indenture Trustee at least 60 days prior to the sinking fund
payment date or at least 30 days prior to the last day of any applicable
Redemption Notice Period relating to a sinking fund payment date as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such Officer's Certificate as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer. The Indenture Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the Indenture
Trustee in writing) shall cause notice of redemption of the Securities of
69
such series to be given in substantially the manner provided in Section 12.02
(and with the effect provided in Section 12.03) for the redemption of Securities
of such series in part at the option of the Issuer. The amount of any sinking
fund payments not so applied or allocated to the redemption of Securities of
such series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such
maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Indenture Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
The Indenture Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of redemption
of Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Default except that, where the giving of notice of redemption of any Securities
shall theretofore have been made, the Indenture Trustee shall redeem or cause to
be redeemed such Securities, provided that it shall have received from the
Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Default
shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Default, be deemed to have been collected
under Article 5 and held for the payment of all such Securities. In case such
Default shall have been waived as provided in Section 5.10 or the default cured
on or before the sixtieth day preceding the sinking fund payment date in any
year, such moneys shall thereafter be applied on the next succeeding sinking
fund payment date in accordance with this Section to the redemption of such
Securities.
ARTICLE 13
SUBORDINATION
Section 13.01 . Securities and Coupons Subordinated to Senior
Indebtedness. The Issuer covenants and agrees, and each Holder of a Security or
Coupon, by his acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by the Securities and any Coupons and the payment of
the principal of and interest on each and all of the Securities and of any
Coupons is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of
Senior Indebtedness.
70
In the event (a) of any insolvency or bankruptcy proceedings or any
receivership, liquidation, reorganization or other similar proceedings in
respect of the Issuer or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Issuer,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 13.02 that (i) a default shall have occurred with respect
to the payment of principal of or interest on or other monetary amounts due and
payable on any Senior Indebtedness, or (ii) there shall have occurred an event
of default (other than a default in the payment of principal or interest or
other monetary amounts due and payable) in respect of any Senior Indebtedness,
as defined therein or in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the maturity thereof
(with notice or lapse of time, or both), and such event of default shall have
continued beyond the period of grace, if any, in respect thereof, and, in the
cases of subclauses (i) and (ii) of this clause (b), such default or event of
default shall not have been cured or waived or shall not have ceased to exist,
or (c) that the principal of and accrued interest on the Securities of any
series shall have been declared due and payable pursuant to Section 5.01 and
such declaration shall not have been rescinded and annulled as provided in
Section 5.01 then:
(i) the holders of all Senior Indebtedness shall first be entitled
to receive payment of the full amount due thereon, or provision shall be
made for such payment in money or money's worth, before the Holders of any
of the Securities or Coupons are entitled to receive a payment on account
of the principal of or interest on the indebtedness evidenced by the
Securities or of the Coupons, including, without limitation, any payments
made pursuant to Article 12.
(ii) any payment by, or distribution of assets of, the Issuer of any
kind or character, whether in cash, property or securities, to which the
Holders of any of the Securities or Coupons or the Indenture Trustee would
be entitled except for the provisions of this Article shall be paid or
delivered by the person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of such Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the holders
of such Senior Indebtedness, before any payment or distribution is made to
the holders of the indebtedness evidenced by the Securities or Coupons or
to the Indenture Trustee under this instrument; and
(iii) in the event that, notwithstanding the foregoing, any payment
by, or distribution of assets of, the Issuer of any kind or character,
whether in cash, property or securities, in respect of principal of or
interest on the Securities or in
71
connection with any repurchase by the Issuer of the Securities, shall be
received by the Indenture Trustee or the Holders of any of the Securities
or Coupons before all Senior Indebtedness is paid in full, or provision
made for such payment in money or money's worth, such payment or
distribution in respect of principal of or interest on the Securities or
in connection with any repurchase by the Issuer of the Securities shall be
paid over to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any such Senior
Indebtedness may have been issued, ratably as aforesaid, for application
to the payment of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 91st day following
the date of deposit of cash or, in the case of Securities payable only in
Dollars, U.S. Government Obligations pursuant to Section 10.01(b) or Section
10.01(c) (provided all other conditions set out in such Section shall have been
satisfied) the funds so deposited and any interest thereon will not be subject
to any rights of holders of Senior Indebtedness including, without limitation,
those arising under this Article 13.
Section 13.02 . Disputes with Holders of Certain Senior Indebtedness. Any
failure by the Issuer to make any payment on or perform any other obligation
under Senior Indebtedness, other than any indebtedness incurred by the Issuer or
assumed or guaranteed, directly or indirectly, by the Issuer for money borrowed
(or any deferral, renewal, extension or refunding thereof) or any indebtedness
or obligation as to which the provisions of this Section shall have been waived
by the Issuer in the instrument or instruments by which the Issuer incurred,
assumed, guaranteed or otherwise created such indebtedness or obligation, shall
not be deemed a default or event of default under Section 13.01(b) if (a) the
Issuer shall be disputing its obligation to make such payment or perform such
obligation and (b) either (i) no final judgment relating to such dispute shall
have been issued against the Issuer which is in full force and effect and is not
subject to further review, including a judgment that has become final by reason
of the expiration of the time within which a party may seek further appeal or
review, and (ii) in the event of a judgment that is subject to further review or
appeal has been issued, the Issuer shall in good faith be prosecuting an appeal
or other proceeding for review and a stay of execution shall have been obtained
pending such appeal or review.
Section 13.03 . Subrogation. Subject to the payment in full of all Senior
Indebtedness, the Holders of the Securities and any Coupons shall be subrogated
(equally and ratably with the holders of all obligations of the Issuer which by
their express terms are subordinated to Senior Indebtedness of the Issuer to the
same extent as the Securities are subordinated and which are entitled to like
rights of subrogation) to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Issuer
applicable to the Senior Indebtedness until all amounts owing on the Securities
and any Coupons shall be paid in full, and as between the Issuer, its
72
creditors other than holders of such Senior Indebtedness and the Holders, no
such payment or distribution made to the holders of Senior Indebtedness by
virtue of this Article that otherwise would have been made to the Holders shall
be deemed to be a payment by the Issuer on account of such Senior Indebtedness,
it being understood that the provisions of this Article are and are intended
solely for the purpose of defining the relative rights of the Holders, on the
one hand, and the holders of Senior Indebtedness, on the other hand.
Section 13.04 . Obligation of Issuer Unconditional. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities or any Coupons
is intended to or shall impair, as among the Issuer, its creditors other than
the holders of Senior Indebtedness and the Holders, the obligation of the
Issuer, which is absolute and unconditional, to pay to the Holders the principal
of and interest on the Securities and the amounts owed pursuant to any Coupons
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 and
creditors of the Issuer other than the holders of Senior Indebtedness, nor shall
anything herein or therein prevent the Indenture Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities of the Issuer
received upon the exercise of any such remedy.
Upon payment or distribution of assets of the Issuer referred to in this
Article, the Indenture Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which any
such dissolution, winding up, liquidation or reorganization proceeding affecting
the affairs of the Issuer is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee
or agent or other person making any payment or distribution, delivered to the
Indenture Trustee or to the Holders, for the purpose of ascertaining the persons
entitled to participate in such payment or distribution, the holders of the
Senior Indebtedness and other indebtedness of the Issuer, the amount thereof or
payable thereon, the amount paid or distributed thereon and all other facts
pertinent thereto or to this Article.
Section 13.05 . Payments on Securities and Coupons Permitted. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities or
Coupons shall affect the obligations of the Issuer to make, or prevent the
Issuer from making, payment of the principal of or interest on the Securities
and of any Coupons in accordance with the provisions hereof and thereof, except
as otherwise provided in this Article.
Section 13.06 . Effectuation of Subordination by Indenture Trustee. Each
holder of Securities or Coupons, by his acceptance thereof, authorizes and
directs the Indenture Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate
73
the subordination provided in this Article and appoints the Indenture Trustee
his attorney-in-fact for any and all such purposes.
Section 13.07 . Knowledge of Indenture Trustee. Notwithstanding the
provisions of this Article or any other provisions of this Indenture, the
Indenture Trustee shall not be charged with knowledge of the existence of any
facts that would prohibit the making of any payment of moneys to or by the
Indenture Trustee, or the taking of any other action by the Indenture Trustee,
unless and until the Indenture Trustee shall have received written notice
thereof mailed or delivered to the Indenture Trustee at its Corporate Trust
Office from the Issuer, any Holder, any paying agent or the holder or
representative of any class of Senior Indebtedness; provided that if at least
three Business Days prior to the date upon which by the terms hereof any such
moneys may become payable for any purpose (including, without limitation, the
payment of the principal or interest on any Security or interest on any Coupon)
the Indenture Trustee shall not have received with respect to such moneys the
notice provided for in this Section, then, anything herein contained to the
contrary notwithstanding, the Indenture Trustee shall have full power and
authority to receive such moneys and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary that
may be received by it within three Business Days prior to or on or after such
date.
Section 13.08 . Indenture Trustee May Hold Senior Indebtedness. The
Indenture Trustee shall be entitled to all the rights set forth in this Article
with respect to any Senior Indebtedness at the time held by it, to the same
extent as any other holder of Senior Indebtedness, and nothing in Section 6.03
or elsewhere in this Indenture shall deprive the Indenture Trustee of any of its
rights as such holder.
Section 13.09 . Rights of Holders of Senior Indebtedness Not Impaired. No
right of any present or future holder of any Senior Indebtedness to enforce the
subordination herein shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Issuer or by any noncompliance
by the Issuer with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
With respect to the holders of Senior Indebtedness, (a) the duties and
obligations of the Indenture Trustee shall be determined solely by the express
provisions of this Indenture, (b) the Indenture Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Indenture, (c) no implied covenants or obligations shall be
read into this Indenture against the Indenture Trustee and (d) the Indenture
Trustee shall not be deemed to be a fiduciary as to such holders.
Section 13.10 . Article Applicable to Paying Agents. In case at any time
any paying agent other than the Indenture Trustee shall have been appointed by
the Issuer and be then acting hereunder, the term "Indenture Trustee" as used in
this Article shall in such case (unless the context shall require otherwise) be
construed as extending to and including such paying agent within its meaning as
fully for all intents and purposes as if
74
such paying agent were named in this Article in addition to or in place of the
Indenture Trustee, provided, however, that Sections 13.07 and 13.08 shall not
apply to the Issuer if it acts as its own paying agent.
Section 13.11 . Indenture Trustee; Compensation Not Prejudiced. Nothing in
this Article shall apply to claims of, or payments to, the Indenture Trustee
pursuant to Section 6.06.
75
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of June __, 2006.
GREAT WOLF RESORTS, INC.
By: ___________________________________
Name:
Title:
Attest:
By: ________________________________
WILMINGTON TRUST COMPANY,
INDENTURE TRUSTEE
By: ___________________________________
Name:
Title:
STATE OF WISCONSIN )
) SS.:
COUNTY OF DANE )
On this ____ of ________, 2006 before me personally came , to me
personally known, who, being by me duly sworn, did depose and say that he
resides at that he is the of Great Wolf Resorts, Inc.,
one of the corporations described in and which executed the above instrument;
and that he signed his name thereto by authority of the Board of Directors of
said corporation.
[NOTARIAL SEAL]
__________________________
Notary Public
STATE OF DELAWARE )
) SS.:
COUNTY OF NEW CASTLE )
On this ____ of ________, 2006 before me personally came , to me
personally known, who, being by me duly sworn, did depose and say that he
resides at that he is a Vice President of Wilmington Trust Company,
one of the corporations described in and which executed the above instrument and
that he signed his name thereto by like authority.
[NOTARIAL SEAL]
__________________
Notary Public
