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EXHIBIT 4.1
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USEC INC.
AND
FIRST UNION NATIONAL BANK, Trustee
Indenture
Dated as of [ ], 1999
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$___________
[ ]% Senior Notes Due 200[ ]
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined.....................................................................................1
SECTION 1.02. Other Definitions.........................................................................................8
ARTICLE 2
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.01. Authentication and Delivery of Securities.................................................................8
SECTION 2.02. Execution of Securities...................................................................................9
SECTION 2.03. Certificate of Authentication.............................................................................9
SECTION 2.04. Form, Denomination and Date of Securities; Payments of Interest...........................................9
SECTION 2.05. Global Security Legends..................................................................................10
SECTION 2.06. Registration, Transfer and Exchange......................................................................11
SECTION 2.07. Book-Entry Provisions for Global Securities..............................................................12
SECTION 2.08. Mutilated, Defaced, Destroyed, Lost and Stolen Securities................................................13
SECTION 2.09. Cancellation of Securities...............................................................................14
SECTION 2.10. Temporary Securities.....................................................................................14
SECTION 2.11. CUSIP and CINS Numbers...................................................................................15
ARTICLE 3 COVENANTS
OF THE COMPANY AND THE TRUSTEE.
SECTION 3.01. Payment of Principal and Interest........................................................................15
SECTION 3.02. Offices for Payments, etc................................................................................15
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee.......................................................16
SECTION 3.04. Paying Agents............................................................................................16
SECTION 3.05. Certificates to Trustee..................................................................................17
SECTION 3.06. Securityholders' Lists...................................................................................18
SECTION 3.07. Reports by the Trustee...................................................................................18
SECTION 3.08. Limitation on Liens......................................................................................19
SECTION 3.09. Limitation on Sale-Leaseback Transactions................................................................20
SECTION 3.10. SEC Reports..............................................................................................20
SECTION 3.11. Existence................................................................................................21
SECTION 3.12. Payment of Taxes and Other Claims........................................................................21
SECTION 3.13. Maintenance of Properties and Insurance..................................................................21
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SECTION 3.14. Waiver of Stay, Extension or Usury Laws..................................................................22
ARTICLE 4
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 4.01. Events of Default........................................................................................22
SECTION 4.02. Acceleration.............................................................................................24
SECTION 4.03. Other Remedies...........................................................................................24
SECTION 4.04. Waiver of Past Defaults..................................................................................24
SECTION 4.05. Control by Majority......................................................................................25
SECTION 4.06. Limitation on Suits......................................................................................25
SECTION 4.07. Rights of Holders to Receive Payment.....................................................................25
SECTION 4.08. Collection Suit by Trustee...............................................................................26
SECTION 4.09. Trustee May File Proofs of Claim.........................................................................26
SECTION 4.10. Priorities...............................................................................................26
SECTION 4.11. Undertaking for Costs....................................................................................27
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default.............................27
SECTION 5.02. Certain Rights of the Trustee............................................................................28
SECTION 5.03. Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof.......30
SECTION 5.04. Trustee and Agents May Hold Securities; Collections, etc.................................................30
SECTION 5.05. Moneys Held by Trustee...................................................................................30
SECTION 5.06. Notice of Default........................................................................................31
SECTION 5.07. Compensation and Indemnification of Trustee and Its Prior Claim..........................................31
SECTION 5.08. Right of Trustee to Rely on Officers' Certificate, etc...................................................32
SECTION 5.09. Persons Eligible for Appointment as Trustee..............................................................32
SECTION 5.10. Resignation and Removal; Appointment of Successor Trustee................................................32
SECTION 5.11. Acceptance of Appointment by Successor Trustee...........................................................34
SECTION 5.12. Merger, Conversion, Consolidation or Succession to Business of Trustee...................................34
SECTION 5.13. Preferential Collection of Claims........................................................................35
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ARTICLE 6
CONCERNING THE HOLDERS
SECTION 6.01. Evidence of Action Taken by Holders......................................................................35
SECTION 6.02. Proof of Execution of Instruments and of Holding of Securities; Record Date..............................36
SECTION 6.03. Securities Owned by Company Deemed Not Outstanding.......................................................36
SECTION 6.04. Right of Revocation of Action Taken......................................................................37
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01. Supplemental Indentures Without Consent of Holders.......................................................37
SECTION 7.02. With Consent of Holders..................................................................................38
SECTION 7.03. Effect of Supplemental Indenture.........................................................................39
SECTION 7.04. Documents to Be Given to Trustee; Compliance with TIA....................................................40
SECTION 7.05. Notation on Securities in Respect of Supplemental Indentures.............................................40
ARTICLE 8
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 8.01. Consolidation, Merger or Sale of Assets..................................................................40
SECTION 8.02. Successor Corporation Substituted........................................................................41
SECTION 8.03. Opinion of Counsel to Trustee............................................................................41
ARTICLE 9
REDEMPTION OF SECURITIES
SECTION 9.01. Right of Optional Redemption; Prices.....................................................................42
SECTION 9.02. Notice of Redemption; Partial Redemptions................................................................42
SECTION 9.03. Payment of Securities Called for Redemption..............................................................43
SECTION 9.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption............................44
ARTICLE 10
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 10.01. Company's Option to Effect Defeasance or Covenant Defeasance............................................44
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SECTION 10.02. Legal Defeasance and Discharge..........................................................................44
SECTION 10.03. Covenant Defeasance.....................................................................................45
SECTION 10.04. Conditions to Legal or Covenant Defeasance..............................................................45
SECTION 10.05. Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions...........47
SECTION 10.06. Repayment to Company....................................................................................48
SECTION 10.07. Reinstatement...........................................................................................48
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers, Directors, Employees and Controlling Persons of Company Exempt
from Individual Liability................................................................................48
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties and Holders.....................................49
SECTION 11.03. Successors and Assigns of Company Bound by Indenture....................................................49
SECTION 11.04. Notices and Demands on Company, Trustee and Holders.....................................................49
SECTION 11.05. Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein......................50
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays.........................................................51
SECTION 11.07. Conflict of Any Provision of Indenture with Trust Indenture Act of 1939.................................51
SECTION 11.08. New York Law to Govern..................................................................................51
SECTION 11.09. Counterparts............................................................................................52
SECTION 11.10. Effect of Headings......................................................................................52
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THIS INDENTURE, dated as of ________ [ ], 1999 between USEC Inc., a
Delaware corporation (the "COMPANY"), and First Union National Bank, a national
banking association (the "TRUSTEE"),
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the issuance of its [ ]% Senior
Notes Due 200[ ] (the "SECURITIES") and, to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly
authorized the execution and delivery of this Indenture;
WHEREAS, the Securities and the Trustee's certificate of authentication
shall be in substantially the form of Exhibit A;
AND WHEREAS, all things necessary to make the Securities, when executed
by the Company and authenticated and delivered by the Trustee as in the
Indenture provided, the valid, binding and legal obligations of the Company, and
to constitute these presents a valid indenture and agreement according to its
terms, have been done;
NOW, THEREFORE:
In consideration of the promises and the purchases of the Securities by
the Holders thereof, the Company and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective Holders from time to time
of the Securities 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 which 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 (except as herein otherwise expressly provided or
unless the context otherwise clearly 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 given to them
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in accordance with GAAP (whether or not such is indicated herein). 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 include the plural as well as the
singular.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors of such Person, or any authorized committee of the Board of Directors
of such Person.
"BOARD RESOLUTION" means a copy of a resolution, certified by the
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or other ownership
interests, whether now outstanding or issued after the date of the Indenture,
including, without limitation, all Common Stock and Preferred Stock.
"CERTIFICATED SECURITIES" means securities issued in the form of
permanent certificated securities in registered form in substantially the form
hereinabove recited.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means, with respect to any Person, any and all shares of
such Person's Capital Stock (excluding Preferred Stock of such Person),
including, without limitation, all series and classes of such common stock.
"CONSOLIDATED NET TANGIBLE ASSETS" means, at any date of determination,
the total amount of assets after deducting therefrom (a) all current liabilities
(excluding (i) any current liabilities that by their terms are extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed, and (ii)
current maturities of long-term debt), and (b) the value (net of any applicable
reserves) of all goodwill, trade names, trademarks, patents or other like
intangible assets, all assets, all as set forth, or on a pro forma basis would
be set forth, in the consolidated balance sheet of the Company and its
Subsidiaries.
"CONSOLIDATED NET WORTH" of any Person means, at any date of
determination, stockholder's equity of such Person, less (i) any amounts
attributable
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to Redeemable Stock or any equity security convertible into or exchangeable for
Debt, (ii) the cost of treasury stock and (iii) the principal amount of any
promissory notes receivable from the sale of the Capital Stock of such Person
(excluding the effects of foreign currency exchange adjustments under Financial
Accounting Standards Board Statement of Financial Accounting Standards No. 52).
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxxx, XX0000,
Xxxxxxxx, Xxxxxxxx 00000.
"DEBT" means (without duplication) all liabilities for borrowed money and
any guarantee therefor.
"DEFAULT" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"DEPOSITARY" means The Depository Trust Company, its nominees, and their
respective successors.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 4.01 which shall have continued for the period of time, if any, therein
designated.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect on the Issue Date, including, without limitation,
those set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession.
"HOLDERS", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar
terms means a person in whose name a Security is registered.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented.
"INTEREST PAYMENT DATE" means each semiannual interest payment date on
[ ] and [ ] of each year, commencing [ ], 1999.
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"ISSUE DATE" means the date and time at which the Securities are
originally issued under the Indenture.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
given to secure Debt, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction with respect to any such mortgage, lien, pledge, charge,
security interest or encumbrance).
"MAKE-WHOLE PREMIUM" means, in connection with any optional redemption of
any security, the excess, if any, of (i) the aggregate present value as of the
Redemption Date of each dollar of principal of such securities being redeemed
and the amount of interest (exclusive of interest accrued to the Redemption
Date) that would have been payable in respect of such dollar if such redemption
had not been made, determined by discounting, on a semi-annual basis, such
principal and interest at a rate equal to the sum of the Treasury Yield
(determined on the Business Day immediately preceding the Redemption Date) plus
[ ] basis points from the respective dates on which such principal and interest
would have been payable if such redemption had not been made, over (ii) the
aggregate principal amount of such securities being redeemed.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Debt.
"OFFICER" means, with respect to the Company, (i) the Chairman of the
Board of Directors, the President, any Vice President, the Chief Financial
Officer, and (ii) the Treasurer or any Assistant Treasurer, or the Secretary or
any Assistant Secretary.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of the
Board of Directors or the President or any Vice President (whether or not
designated by a number or numbers or a word or words added before or after the
title "Vice President") of the Company and delivered to the 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 in writing signed by legal counsel
who may be an employee of or counsel to the Company or who may be other counsel
satisfactory to the 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,
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and such others as may reasonably be requested by the Trustee, if and to the
extent required hereby.
"OUTSTANDING", when used with reference to Securities, subject to the
provisions of Article Eleven, means, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company)
or shall have been set aside, segregated and held in trust by the Company
(if the Company shall act as its own paying agent), provided that if such
Securities 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 Trustee shall have been made for giving such notice;
and
(c) Securities in substitution for which other Securities shall
have been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.08 (unless proof satisfactory to the
Trustee and the Company is presented that any of such Securities is held
by a person in whose hands such Security is a legal, valid and binding
obligation of the Company).
"PERMITTED LIENS" means: (a) any statutory or governmental Lien or Lien
arising by operation of law, or any mechanics', repairmen's, materialmen's,
suppliers', carriers', landlords', warehousemen's or similar Lien incurred in
the ordinary course of business which is not yet due or which is being contested
in good faith by appropriate proceedings and any undetermined Lien which is
incidental to construction, development, improvement or repair; (b) Liens of
taxes and assessments which are (i) for the then current year, (ii) not at the
time delinquent, or (iii) delinquent but the validity of which is being
contested at the time by the Company or any of its Subsidiaries in good faith;
(c) any Lien incurred in the ordinary course of business in connection with
workmen's compensation, unemployment insurance, temporary disability, social
security, retiree health or similar laws or regulations or to secure obligations
imposed by statute or governmental regulations; (d) any Lien in favor of the
Company or any of its Subsidiaries; or (e) any Lien in favor of the United
States of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of America or any
State thereof, to secure partial, progress, advance or other payments pursuant
to any contract or statute or to secure any Debt incurred by
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the Company or any of its Subsidiaries for the purpose of financing all or any
part of the purchase price of, or the cost of constructing, developing,
repairing or improving, the property or assets subject to such Lien.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency, instrumentality or
political subdivision thereof.
"PREFERRED STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference stock, whether
now outstanding or hereafter issued, including, without limitation, all series
and classes of such preferred or preference stock.
"PRINCIPAL" wherever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "AND PREMIUM, IF
ANY".
"PRINCIPAL PROPERTY" means the land, land improvements, buildings and
fixtures (to the extent they constitute real property interests, including any
leasehold interest therein) constituting the principal corporate office and any
manufacturing plant or facility (whether now owned or hereafter acquired) which:
(a) is owned by the Company or any of its Subsidiaries; (b) is located within
any of the present 50 states of the United States (or the District of Columbia);
(c) in the opinion of the Board of Directors of the Company, is of material
importance to the total business as it exists as of the date hereof conducted by
the Company and its Subsidiaries taken as a whole; and (d) the gross book value
of which exceeds 3% of Consolidated Net Tangible Assets.
"REGULAR RECORD DATE" for the Interest payable on any Interest Payment
Date (except a date for payment of defaulted interest) means [ ] or [ ]
(whether or not a Business Day) as the case may be, next preceding such Interest
Payment Date.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means any
vice president (whether or not designated by numbers or words added before or
after the title "vice president"), any trust officer, any assistant trust
officer, any assistant vice president, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the 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 or her knowledge of and familiarity with the particular
subject.
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"SALE-LEASEBACK TRANSACTION" means the sale or transfer by the Company or
any of its Subsidiaries of any Principal Property to a Person (other than the
Company or any of its Subsidiaries) and the taking back by the Company or any of
its Subsidiaries, as the case may be, of a lease of such Principal Property.
"SECURITY" or "SECURITIES" means any Security or Securities, as the case
may be, authenticated and delivered under this Indenture.
"STATED MATURITY" means (i) with respect to any debt security, the date
specified in such debt security as the fixed date on which the final installment
of principal of such debt security is due and payable and (ii) with respect to
any scheduled installment of principal of or interest on any debt security, the
date specified in such debt security as the fixed date on which such installment
is due and payable.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation or
other business entity of which more than 50% of the total voting power of shares
of Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by such Person or one or more
of the Subsidiaries of that Person (or a combination thereof) and (ii) any
partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are such Person or one or more Subsidiaries of such Person (or
any combination thereof).
"TREASURY YIELD" means, in connection with the calculation of any
Make-Whole Premium on any Security, the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical Release
H.15 (519) that has become publicly available at least two Business Days prior
to the Redemption Date (or, if such Statistical Release is no longer published,
any publicly available source of similar data)) equal to the then remaining
maturity of such Security; provided that if no United States Treasury security
is available with such a constant maturity for which a closing yield is given,
the Treasury Yield shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the closing yields of United States Treasury
securities for which such yields are given, except that if the remaining
maturity of such Security is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
"TRUST INDENTURE ACT OF 1939" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was originally
executed,
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and "TIA", when used in respect of an indenture supplemental hereto, means such
Act as in force at the time such indenture supplemental hereto becomes
effective.
"TRUSTEE" means the entity identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article Five, shall also include any
successor trustee.
"U.S. GOVERNMENT OBLIGATIONS" means securities issued or directly and
fully guaranteed or insured by the United States of America or any agent or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof).
SECTION 1.02. Other Definitions.
Defined in
Term Section
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"Acceleration Notice"................................................................. 4.02
"Agent Members"....................................................................... 2.07
"Covenant Defeasance"................................................................. 10.03
"Event of Default".................................................................... 4.01
"Global Security"..................................................................... 2.04
"incorporated provision".............................................................. 11.07
"Legal Defeasance".................................................................... 10.02
"Registrar"........................................................................... 2.06
"Security Register(s)"................................................................ 2.06
ARTICLE 2
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.01. Authentication and Delivery of Securities. Upon the
execution and delivery of this Indenture, or from time to time thereafter,
Securities in an aggregate principal amount not in excess of the amount
specified in the form of Security hereinabove recited (except as otherwise
provided in Section 2.08) may be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
make available for delivery said Securities to or upon the written order of the
Company, signed by its Chairman of the Board of Directors, or any Vice Chairman
of the Board of Directors, or its President or any Vice President (whether or
not designated by a number or numbers or a word or
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words added before or after the title "Vice President") without any further
action by the Company.
SECTION 2.02. Execution of Securities. The Securities shall be signed on
behalf of the Company by its Chairman of the Board of Directors or its President
or any Vice President (whether or not designated by a number or numbers or a
word or words added before or after the title "Vice President"). Such signature
may be the manual or facsimile signatures of the present or any future such
officers.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such officer.
SECTION 2.03. Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinabove recited, executed by the Trustee by manual signature of one of its
authorized signatories, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Company shall be conclusive evidence, and the only
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.
SECTION 2.04. Form, Denomination and Date of Securities; Payments of
Interest. The Securities and the Trustee's certificates of authentication shall
be substantially in the form recited above. The Securities shall be issuable in
denominations provided for in the form of Security recited above. The Securities
shall be numbered, lettered, or otherwise distinguished in such manner or in
accordance with such plans as the officers of the Company executing the same may
determine with the approval of the Trustee.
Any of the Securities may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, 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, including those required by Section 2.05, or
with the rules of any securities market in which the Securities are admitted to
trading, or to conform to general usage.
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Each Security shall be dated the date of its authentication, shall bear
interest from the applicable date and shall be payable on the dates specified on
the face of the form of Security recited above.
The Securities shall be issued initially in the form of one or more
global Securities (a "GLOBAL SECURITY") deposited with the Trustee as custodian
for the Depositary.
The person in whose name any Security is registered at the close of
business on any Regular Record Date with respect to any Interest Payment Date
shall be entitled to receive the interest, if any, payable on such Interest
Payment Date notwithstanding any transfer or exchange of such Security
subsequent to the Regular Record Date and prior to such Interest Payment Date,
except if and to the extent the Company shall default in the payment of the
interest due on such Interest Payment Date, in which case such defaulted
interest, plus (to the extent lawful) any interest payable on the defaulted
interest, shall be paid to the persons in whose names outstanding Securities 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 such payment) established
by notice given by mail by or on behalf of the Company to the holders of
Securities not less than 15 days preceding such subsequent record date.
SECTION 2.05. Global Security Legends. Each Global Security shall bear
the following legends on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE.
SECTION 2.06. Registration, Transfer and Exchange. The Securities are
issuable only in registered form. The Company will keep at each office or agency
to be maintained for the purpose as provided in Section 3.02 (the "REGISTRAR") a
register or registers (the "SECURITY REGISTER(s)") in which, subject to such
reasonable regulations as it may prescribe, it will register, and will register
the transfer of, Securities as in this Article provided. Such Security 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 Security Register or Security Registers shall be open for inspection by the
Trustee.
Upon due presentation for registration of transfer of any Security at
each such office or agency, the Company shall execute and the Trustee shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Security or Securities in authorized denominations for a like
aggregate principal amount.
A Holder may transfer a Security only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the Security
Register. Prior to the registration of any transfer by a Holder as provided
herein, the Company, the Trustee, and any agent of the Company shall treat the
person in whose name the Security is registered as the owner thereof for all
purposes whether or not the Security shall be overdue, and neither the Company,
the Trustee, nor any such agent shall be affected by notice to the contrary.
Furthermore, any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book entry system maintained by the Holder of
such Global Security (or its agent) and that ownership of a beneficial interest
in the Security shall be required to be reflected in a book entry. When
Securities are presented to the Registrar or a co-Registrar with a request to
register the transfer or to exchange them for an equal principal amount of
Securities of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested if the requirements for such
transactions set forth herein are met. To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's request.
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The Company may require payment of a sum sufficient to cover any tax or
other similar governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities (other than any such transfer
taxes or other similar governmental charge payable upon exchanges pursuant to
Section 2.10, 7.05 or 9.03). No service charge to any Holder shall be made for
any such transaction.
The Company shall not be required to exchange or register a transfer of
(a) any Securities for a period of 15 days next preceding the first mailing of
notice of redemption of Securities to be redeemed, or (b) any Securities
selected, called or being called for redemption except, in the case of any
Security where public notice has been given that such Security is to be redeemed
in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.07. Book-Entry Provisions for Global Securities. (a) Each
Global Security shall (i) be registered in the name of the Depositary for such
Global Securities or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for such Depositary and (iii) bear legends as set forth in
Section 2.05.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers of such
Global Security in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Security
may be transferred in accordance with the rules and procedures of the
Depositary. In addition, Certificated Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Security or the
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Depository ceases to be a "clearing agency" registered under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days of
such notice or (ii) an Event of Default of which a Responsible Officer of the
Trustee has actual notice has occurred and is continuing and the Registrar has
received a request from the Depositary to issue such Certificated Securities.
(c) In connection with the transfer of the entire Global Security to
beneficial owners pursuant to paragraph (b) of this Section, such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange for its
beneficial interest in such Global Security an equal aggregate principal amount
of Certificated Securities of authorized denominations.
(d) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.08. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated, defaced or
be apparently destroyed, lost or stolen, and in the absence of notice to the
Company that such Security has been acquired by a bona fide purchaser, the
Company in its discretion may execute, and upon the written request of any
officer of the Company, the Trustee shall authenticate and make available for
delivery, a new Security, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
and substitution for the Security so apparently destroyed, lost or stolen. In
every case the applicant for a substitute Security shall furnish to the Company
and to the Trustee and any agent of the Company or the 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 apparent destruction, loss or theft of such Security and of
the ownership thereof.
Upon the issuance of any substitute Security, the Company may require the
payment of a sum sufficient to cover any transfer tax or other similar
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security which has matured or is about to mature, or has been called
for redemption in full, shall become mutilated or defaced or be apparently
destroyed, lost or stolen, the Company in its discretion may, instead of issuing
a substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if the
applicant for such payment shall furnish to the Company and
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to the Trustee and any agent of the Company or the Trustee such security or
indemnity as any of them may require to save each of them harmless from all
risks, however remote, and, in every case of apparent destruction, loss or
theft, the applicant shall also furnish to the Company and the Trustee and any
agent of the Company or the Trustee evidence to their satisfaction of the
apparent destruction, loss or theft of such Security and of the ownership
thereof.
Every substitute Security issued pursuant to the provisions of this
Section by virtue of the fact that any Security is apparently destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the apparently destroyed, lost or stolen Security 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 any and all other Securities duly authenticated
and delivered hereunder. All Securities 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
apparently destroyed, lost or stolen Securities and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.09. Cancellation of Securities. All Securities surrendered for
payment, redemption, registration of transfer or exchange, if surrendered to the
Company or any agent of the Company or the Trustee, shall be delivered to the
Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. If the Company shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation. All
cancelled Securities held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures (or destroyed) and certification of
their disposal shall be delivered to the Company unless the Company directs that
cancelled Securities be returned to it.
SECTION 2.10. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute and, upon receipt of an order
from the Company, the Trustee shall authenticate and make available for delivery
temporary Securities (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Trustee). Temporary
Securities shall be issuable as registered Securities without coupons, of any
authorized denomination, and substantially in the form of the definitive
Securities but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company
with the concurrence of the Trustee. Temporary
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Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Company shall execute and shall furnish definitive
Securities and thereupon temporary Securities may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Company
for the purpose pursuant to Section 3.02, and the Trustee shall authenticate and
make available for delivery in exchange for such temporary Securities a like
aggregate principal amount of definitive Securities of authorized denominations.
Until so exchanged the temporary Securities shall be entitled to the same
benefits under this Indenture as definitive Securities.
SECTION 2.11. CUSIP and CINS Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers and CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders; provided that any
such notice shall state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption or
exchange shall not be affected by any defect or omission of such numbers. The
Company shall promptly notify the Trustee of any change in the CUSIP number or
CINS number, as the case may be.
ARTICLE 3
COVENANTS OF THE COMPANY AND THE TRUSTEE.
SECTION 3.01. Payment of Principal and Interest. The Company covenants
and agrees that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities at the place or places, at
the respective times and in the manner provided in the Securities. Each
installment of interest on the Securities may be paid by mailing checks for such
interest payable to or upon the written order of the holders of Securities
entitled thereto as they shall appear on the registry books of the Company, or
by wire transfer to such holders in immediately available funds, to such bank or
other entity in the continental United States as shall be designated by such
holders and shall have appropriate facilities for such purpose, or in accordance
with the standard operating procedures of the Depositary.
SECTION 3.02. Offices for Payments, etc. So long as any of the Securities
remain outstanding, the Company will maintain in The Borough of Manhattan, The
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City of New York, an office or agency (which may be a drop facility): (a) where
the Securities may be presented or surrendered for payment, (b) where the
Securities may be surrendered for registration of transfer and for exchange as
in this Indenture provided and (c) where notices and demands to or upon the
Company in respect of the Securities or of this Indenture may be served. The
Company will give to the Trustee prompt written notice of the location of any
such office or agency and of any change of location thereof. In case the Company
shall fail to maintain any such office or agency or shall fail to give such
notice of the location or of any change in the location thereof, presentations
and demands may be made and notices may be served at the Corporate Trust Office,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside The Borough of Manhattan and The City of New
York) where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind any such designation; provided,
however, that no such designation or recission shall in any manner relieve the
Company of its obligation to maintain an office or agency in The Borough of
Manhattan or The City of New York for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or recission and
any change in the location of any such other office or agency. The Company
hereby designates the Trustee c/o First Union National Bank, 00 Xxxxx Xxxxxx,
Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 as such drop facility in
compliance with this Section 3.02
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 5.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 3.04. Paying Agents. Whenever the Company shall appoint a paying
agent other than the Trustee, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section,
(a) that it will comply with the provisions of the Trust Indenture Act
applicable to it as a paying agent,
(b) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities (whether such sums
have been paid to it by the Company or by any other obligor on the Securities)
in trust for the benefit of the holders of the Securities or of the Trustee,
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(c) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities) to make any payment of the principal
of or interest on the Securities when the same shall be due and payable, and
(d) that it will pay any such sums so held in trust by it to the Trustee
upon the Trustee's written request at any time during the continuance of the
failure referred to in clause (c) above.
Upon payment over to the Trustee, the paying agent (if other than the
Company) shall have no further liability for the money delivered to the Trustee.
Whenever the Company shall have one or more paying agents, the Company
will, no later than one Business Day prior to each due date of the principal of
or interest on the Securities, deposit with the paying agent in an account
established for the benefit of the Holders, a sum sufficient to pay such
principal or interest, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of any failure to take such action.
If, before 1:00 p.m. one day prior to payment date, funds have been
received by the Trustee for payment of debt service due the following day, funds
shall be invested in any money market fund substantially all of which is
invested in direct obligations of the United States of America or obligations of
which are unconditionally guaranteed by the United States of America. All
interest earnings will be paid to the Company.
If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of or interest on the Securities, set aside,
segregate and hold in trust for the benefit of the holders of the Securities a
sum sufficient to pay such principal or interest so becoming due. The Company
will promptly notify the Trustee of any failure to take such action.
Anything in the prior two paragraphs to the contrary notwithstanding, in
connection with any payment of principal and interest, the Company will, for so
long as the Depository is a Holder of the Securities, deposit sums with the
paying agent sufficient to pay such amounts not later than the time required by
the Depository's rules and regulations as in effect at the time such payment is
due.
Anything in this Section to the contrary notwithstanding, the Company may
at any time, for the purpose of obtaining a satisfaction and discharge of this
Indenture or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by the Company or any paying agent hereunder, as required by
this Section, such sums to be held by the Trustee upon the trusts herein
contained.
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Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section are subject to the provisions
of Sections 10.05 and 10.06.
SECTION 3.05. Certificates to Trustee. (a) The Company will deliver to
the Trustee within 120 days after the end of each fiscal year of the Company a
certificate from the principal executive, financial or accounting officer of the
Company stating that such officer has conducted or supervised a review of the
activities of the Company and its Subsidiaries and the Company's and its
Subsidiaries' performance under the Indenture and that, to the best of such
officer's knowledge, based upon such review, the Company has fulfilled all
obligations thereunder or, if there has been a default in the fulfillment of any
such obligation (determined without regard to any period of grace or requirement
of notice provided in the Indenture), specifying each such default and the
nature and status thereof.
(b) The Company will deliver to the Trustee, as soon as possible and in
any event within 10 days after the Company becomes aware of the occurrence of an
Event of Default or a Default, an Officers' Certificate setting forth the
details of such Event of Default or Default, and the action which the Company
proposes to take with respect thereto.
(c) The Company will deliver to the Trustee within 120 days after the end
of each fiscal year of the Company a written statement by the Company's
independent public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture and the Securities as they
relate to accounting matters, and (ii) whether, in connection with their audit
examination, any Default has come to their attention and, if such a Default has
come to their attention, specifying the nature and period of the existence
thereof.
SECTION 3.06. Securityholders' Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders and shall otherwise comply with Section
312(a) of the Trustee Indenture Act. If and so long as the Trustee shall not be
the Registrar, the Company will furnish or cause to be furnished to the Trustee
a list in such form as the Trustee may reasonably require of the names and
addresses of the holders of the Securities pursuant to Section 312 of the Trust
Indenture Act of 1939 (a) semi-annually not more than 15 days after each Regular
Record Date as of such Regular Record Date, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Company
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 3.07. Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as
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may be required pursuant to the Trust Indenture Act of 1939 at the times and in
the manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act of 1939, the Trustee shall, within sixty days after each April 15
following the date of this Indenture deliver to Holders a brief report, dated as
of such April 15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are listed on any stock
exchange or of any delisting thereof.
SECTION 3.08. Limitation on Liens. The Company shall not, and shall not
permit any of its Subsidiaries to, create, assume or incur any Lien on any
Principal Property to secure any Debt of the Company or any other Person (other
than the Securities) without effectively providing that the Securities shall be
secured equally and ratably with, or prior to, such Debt so long as such Debt
shall be secured. There is, however, excluded from the foregoing restriction the
following: (a) Permitted Liens; (b) any Lien on any (i) property or assets
created at the time of the acquisition of such property or assets by the Company
or any of its Subsidiaries, or within 180 days after such time, to secure all or
part of the purchase price for such property or assets or Debt incurred to
finance such purchase price, whether such Debt was incurred prior to, at the
time of, or within 180 days of, such acquisition; provided that, any such Lien
does not extend to any other property or assets of the Company or any of its
Subsidiaries, or (ii) property to secure all or part of the cost of the
development, construction, repair or improvement thereon or to secure Debt
incurred prior to, at the time of, or within 180 days after, the completion of
such development, construction, repair or improvement or the commencement of
full operations thereof (whichever is later) to provide funds for any such
purpose; provided that, any such Lien does not extend to any other property or
assets of the Company or any of its Subsidiaries; (c) (i) any Lien on any
property or assets existing thereon at the time of acquisition thereof by the
Company or any of its Subsidiaries (whether or not the obligations secured
thereby are assumed by the Company or any of its Subsidiaries), or (ii) the
assumption by the Company or any of its Subsidiaries of obligations secured by
any Lien existing at the time of acquisition by the Company or any of its
Subsidiaries of the property or assets subject to such Lien or at the time of
the acquisition of the Person which owns such property or assets, or (iii) any
Lien on any property or assets of a Person existing thereon at the time (1) such
Person becomes a Subsidiary of the Company, (2) such Person is merged into, or
consolidated with, the Company or any of its Subsidiaries or (3) of a sale,
lease or other disposition of the properties of a Person (or division thereof)
as an entirety or substantially as an entirety to the Company or any of its
Subsidiaries, provided that in each of the foregoing cases listed in this clause
(c), such Lien was not created as a result of or
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in connection with or in anticipation of any such transaction and does not
extend to any other property or assets of the Company or any of its
Subsidiaries; (d) any Lien on any property or assets of the Company or any of
its Subsidiaries in existence on the date of the Indenture; (e) any Lien arising
by reason of any attachment, judgment, decree or order of any governmental or
court authority, so long as any proceeding initiated to review such attachment,
judgment, decree or order shall not have been terminated or the period within
which such proceeding may be initiated shall not expire, or such attachment,
judgment, decree or order shall otherwise be effectively stayed; and (f) any
extension, renewal, refinancing, refunding or replacement (or successive
extensions, renewals, refinancings, refundings or replacements) of any Lien, in
whole or part, that is referred to in clauses (a) through (e) (inclusive) above,
or any Debt secured thereby.
Notwithstanding the foregoing, under the Indenture, the Company may, and
may permit any of its Subsidiaries to, create, assume or incur any Lien upon any
Principal Property to secure any Debt of the Company or any Person (other than
the Securities) that is not excepted by clauses (a) through (f) (inclusive)
above without securing the Securities, provided that, after giving effect to the
creation, assumption or incurrence of such Lien and Debt, and the application of
proceeds of such Debt, if any, received by the Company or any of its
Subsidiaries as a result thereof, the aggregate principal amount of all Debt
then outstanding secured by such Lien and all similar Liens, together with all
net sale proceeds from Sale-Leaseback Transactions (excluding Sale-Leaseback
Transactions permitted by clauses (i) through (iii) (inclusive) of Section 3.09)
would not exceed 10% of Consolidated Net Tangible Assets.
SECTION 3.09. Limitation on Sale-Leaseback Transactions. The Company
shall not, nor shall it permit any of its Subsidiaries to, engage in a
Sale-Leaseback Transaction, unless: (a) the Sale-Leaseback Transaction involves
a lease for a period, including renewals, of not more than three years; (b) the
Company or such Subsidiary would be entitled to incur Debt secured by a Lien on
Principal Property subject thereto in a principal amount equal to or exceeding
the net sale proceeds from such Sale-Leaseback Transaction without equally and
ratably securing the Securities pursuant to Section 3.08; or (c) the Company or
such Subsidiary, within a 180 day period after such Sale-Leaseback Transaction,
applies or causes to be applied an amount not less than the net sale proceeds
(which, in the case of a sale and transfer other than for cash, shall be an
amount equal to the fair market value of the Principal Property so leased) from
such Sale-Leaseback Transaction to (i) the prepayment, repayment, reduction or
retirement of any pari passu Debt of the Company or any of its Subsidiaries, or
(ii) the expenditure or expenditures for Principal Property used or to be used
in the ordinary course of business of the Company or any of its Subsidiaries.
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SECTION 3.10. SEC Reports. (i) So long as any of the Securities remain
outstanding, whether or not the Company is then required to file with the
Commission information, documents or reports pursuant to Section 13 or Section
15(d) of the Exchange Act, the Company will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which would be required pursuant to such sections if the
Company were subject thereto. All obligors on the Securities will comply with
Section 314(a) of the Trust Indenture Act of 1939.
(ii) The Company shall promptly mail copies of all such annual reports,
information, documents and other reports provided to the Trustee pursuant to
Section 3.10(i) hereof within 15 days of the delivery thereof with the Trustee
to the Holders at their addresses appearing in the register of Securities
maintained by the Registrar. The Company shall also make such information
available to securities analysts and prospective investors upon request.
(iii) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 3.11. Existence. Subject to Articles Three and Eight of this
Indenture, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each of its Subsidiaries in accordance with the respective organizational
documents of the Company and each such Subsidiary and the rights (whether
pursuant to charter, partnership certificate, agreement, statute or otherwise),
material licenses and franchises of the Company and each such Subsidiary,
provided that the Company shall not be required to preserve any such right,
license or franchise, or the existence of any Subsidiary, if the maintenance or
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries taken as a whole.
SECTION 3.12. Payment of Taxes and Other Claims. The Company will pay or
discharge and shall cause each of its Subsidiaries to pay or discharge, or cause
to be paid or discharged, before the same shall become delinquent (a) all
material taxes, assessments and governmental charges levied or imposed upon (i)
the Company or any such Subsidiary, (ii) the income or profits of any such
Subsidiary which is a corporation or (iii) the property of the Company or any
such Subsidiary and (b) all material lawful claims for labor materials and
supplies that, if unpaid, might by law become a lien upon the property of the
Company or any such Subsidiary; provided
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that the Company shall not be required to pay or discharge, or cause to be paid
or discharged, any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves have been established.
SECTION 3.13. Maintenance of Properties and Insurance. The Company will
cause all properties used or useful in the conduct of its business or the
business of any of its Subsidiaries, to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided that nothing in
this Section 3.13 shall prevent the Company or any such Subsidiary from
discontinuing the use, operation or maintenance of any of such properties or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Company, desirable in the conduct of the business of the Company or such
Subsidiary.
The Company will provide or cause to be provided, for itself and its
Subsidiaries, insurance (including appropriate self-insurance) against loss or
damage of the kinds customarily insured against by corporations similarly
situated and owning like properties, including, but not limited to, products
liability insurance and public liability insurance, with reputable insurers or
with the government of the United States of America, or an agency or
instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which the Company or such Subsidiary, as the case may be, is then
conducting business.
SECTION 3.14. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not (i) at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture and the Company will expressly
waive all benefit or advantage of any such law and (ii) hinder, delay or impede
the execution of any power granted to the Trustee under this Indenture and will
suffer and permit the execution of every such power as though no such law had
been enacted.
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ARTICLE 4
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 4.1. Events of Default. Each of the following constitutes an
"EVENT OF DEFAULT":
(a) default in the payment of principal of, or premium, if any, on any
Security when the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise;
(b) default in the payment of interest on any Security when the same
becomes due and payable, and such default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement in the Indenture or under the Securities (other than (a),
or (b) above) and such default or breach continues for a period of 60
consecutive days after written notice by the Trustee or the Holders of 25% or
more in aggregate principal amount of the Securities;
(d) default in the payment of the principal of, or interest on, any note,
bond, coupon or other instrument or agreement evidencing or pursuant to which
there is outstanding Debt of the Company or any of its Subsidiaries, whether
such Debt now exists or shall hereafter be created, having an aggregate
principal amount exceeding $35.0 million (or its equivalent in any other
currency or currencies), other than the Securities, when that Debt becomes due
and payable (whether at maturity, upon redemption or acceleration or otherwise),
if such default shall continue for more than the period of grace, if any,
applicable thereto and the time for payment of such amount has not been
expressly extended;
(e) a court having jurisdiction in the premises enters a decree or order
for (A) relief in respect of the Company or any of its Subsidiaries in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, (B) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Company or
any of its Subsidiaries or for all or substantially all of the property and
assets of the Company or any of its Subsidiaries or (C) the winding up or
liquidation of the affairs of the Company or any of its Subsidiaries and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(f) the Company or any of its Subsidiaries (A) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under
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any such law, (B) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any of its Subsidiaries or for all or substantially
all of the property and assets of the Company or any of its Subsidiaries or (C)
effects any general assignment for the benefit of creditors.
SECTION 4.02. Acceleration. If an Event of Default (other than an Event
of Default specified in clause (e) or (f) of Section 4.01 that occurs with
respect to the Company) occurs and is continuing under the Indenture, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding, by written notice to the Company (and to the
Trustee if such notice is given by the Holders (the "ACCELERATION NOTICE")),
may, and the Trustee at the request of such Holders shall, declare the principal
of, premium, if any, and accrued interest on the Securities to be immediately
due and payable. Upon a declaration of acceleration, such principal of, premium,
if any, and accrued interest shall be immediately due and payable. In the event
of a declaration of acceleration because an Event of Default set forth in clause
(d) of Section 4.01 has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to clause (d) of Section 4.01
shall be remedied or cured by the Company or the relevant Subsidiary or waived
by the holders of the relevant Debt within 60 days after the declaration of
acceleration with respect thereto. If an Event of Default specified in clause
(e) or (f) Section 4.01 occurs with respect to the Company, the principal of,
premium, if any, and accrued interest on the Securities then outstanding shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
SECTION 4.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any appropriate remedy to collect the payment
of principal or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 4.04. Waiver of Past Defaults. The Holders of at least a majority
in principal amount of the outstanding Securities by written notice to the
Company and to the Trustee, may waive all past defaults and rescind and annul a
declaration
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of acceleration and its consequences if (i) all existing Events of Default,
other than the nonpayment of the principal of, premium, if any, and interest on
the Securities that have become due solely by such declaration of acceleration,
have been cured or waived and (ii) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction. Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 4.05. Control by Majority. The Holders of at least a majority in
aggregate principal amount of the outstanding Securities may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee. However, the
Trustee may refuse to follow any direction that conflicts with law or the
Indenture, that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders of Securities not joining in the giving of such direction and may take
any other action it deems proper that is not inconsistent with any such
direction received from Holders of Securities.
SECTION 4.06. Limitation on Suits. A Holder may not pursue any remedy
with respect to the Indenture or the Securities unless:
(i) the Holder gives the Trustee written notice of a continuing Event of
Default with respect to the Securities;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer the Trustee indemnity satisfactory to
the Trustee against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of at least a majority in
aggregate principal amount of the outstanding Securities do not give the Trustee
a direction that is inconsistent with the request; it being understood and
intended that no one or more Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders or to obtain or to seek to
obtain priority or preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
proportionate benefit of all Holders.
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SECTION 4.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal, premium, if any, and interest on the Security, on or after the
respective due dates expressed in the Security, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
SECTION 4.08. Collection Suit by Trustee. If an Event of Default
specified in Section 4.01(a) or (b) hereof occurs and is continuing, the Trustee
is authorized to recover judgment in its own name and as trustee of an express
trust against the Company or any other obligor for the whole amount of
principal, premium, if any, and interest remaining unpaid on the Securities and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover amounts due the Trustee under
Section 5.07 hereof, including the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
SECTION 4.09. Trustee May File Proofs of Claim. The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Securities),
its creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 5.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 5.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties which the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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SECTION 4.10. Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 5.07, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Securities
for principal, premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 4.10 upon five Business Days prior notice to
the Company.
SECTION 4.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 4.06 hereof, or a
suit by Holders of more than 10% in aggregate principal amount of the then
outstanding Securities.
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default. The Trustee, prior to the occurrence of a Default and after
the curing or waiving of any Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the
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same degree of care and skill in their exercise, as a prudent person would
exercise under the circumstances in the conduct of such person's own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default of which the Trustee
has actual notice and after the curing or waiving of all such Events of Default
which may have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of 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 Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of the facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted by it (i) in good faith in accordance with the direction of the holders
of not less than a majority in principal amount of the Securities at the time
outstanding relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or (ii) in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
None of the provisions contained in this Indenture shall require the
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.
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This Section 5.01 is in furtherance of and subject to Sections 315 and
316 of the Trust Indenture Act of 1939.
SECTION 5.02. Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.01:
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' 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 Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any advice
or 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 accordance with such advice or Opinion of Counsel;
(d) the 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 Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the 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, of which the Trustee
has actual notice, and after the curing or waiving of all Defaults, the Trustee
shall not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, 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 then outstanding, and, if the Trustee shall determine to make such
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; provided that, if the
payment within a reasonable time to the Trustee of the costs,
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expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or liabilities as
a condition to proceeding; the reasonable expenses of every such examination
shall be paid by the Company or, if paid by the Trustee or any predecessor
trustee, shall be repaid promptly by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the 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;
(h) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture; and
(i) The Trustee shall have no duty to inquire as to the performance of
the Company's covenants herein.
SECTION 5.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds thereof.
SECTION 5.04. Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Company and receive, collect, hold and retain collections from the
Company with the same rights it would have if it were not the Trustee or such
agent. However, subject to Section 5.13 hereof, the Trustee will comply with
Sections 310(b) and 311 of the Trust Indenture Act of 1939.
SECTION 5.05. Moneys Held by Trustee. Subject to the provisions of
Section 10.06 hereof, all moneys received by the Trustee shall, until used or
applied as herein
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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 Trustee nor any agent of the Company or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder except as otherwise agreed with the Company.
SECTION 5.06. Notice of Default. If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is actually
known to a Responsible Officer of the Trustee, the Trustee shall mail to each
Holder in the manner and to the extent provided in Trust Indenture Act of 1939
Section 313(c) notice of the Default or Event of Default within 90 days after it
occurs, unless such Default or Event of Default has been cured; provided,
however, that, except in the case of a default in the payment of the principal
of, premium, if any, or interest on any Security, the 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 and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders.
SECTION 5.07. Compensation and Indemnification of Trustee and Its Prior
Claim. The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed in
writing between the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Company covenants and agrees to pay or reimburse the Trustee and each
predecessor 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 Company also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee) 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
Company under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
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 lien to that of the
Securities upon all property and funds held or collected by the Trustee as such,
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except funds held in trust for the benefit of the holders of particular
Securities, and the Securities are hereby subordinated to such senior claim.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 4.01(e) or Section 4.01(f), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
SECTION 5.08. Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.09. Persons Eligible for Appointment as Trustee. The Trustee
hereunder shall at all times be a corporation having a combined capital and
surplus of at least $100,000,000, and which is eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of a Federal, State or District of Columbia 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. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 5.09, it shall resign immediately and in the manner
and with the effect hereinafter specified.
SECTION 5.10. Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee may at any time resign by giving written notice of resignation
to the Company. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of resignation, the
resigning trustee may petition, at the expense of the Company, 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 for
at least six months may, on behalf of himself and all others
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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 Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939, after written request
therefor by the Company or by any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to Section 315(e) of the Trust Indenture Act of 1939, any Securityholder
who has been a bona fide holder of a Security or Securities 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 Trustee and the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Company the evidence provided for in
Section 6.01 of the action in that regard taken by the Securityholders.
If no successor trustee shall have been so appointed and have accepted
appointment 30 days after the mailing of such notice of removal, the trustee
being removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor trustee. Such court
may thereupon,
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after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section 5.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 5.11.
SECTION 5.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.10 shall execute and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 10.06, 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 Company 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 5.07.
Upon acceptance of appointment by a successor trustee as provided in this
Section 5.11, the Company shall mail notice thereof by first-class mail to the
holders of Securities at their last addresses as they shall appear in the
Security Register. 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 5.10.
If the Company fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 5.12. Merger, Conversion, Consolidation or Succession to Business
of Trustee. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or to which the Trustee's assets may be sold,
or any corporation resulting from any merger, conversion, consolidation or sale
to which the Trustee shall be a party or by which the Trustee's property may be
bound, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of Section
5.09, without the
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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 Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
shall not have been authenticated, any successor to the 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 or in this Indenture provided
that the certificate of the Trustee shall have; provided, that the right to
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 5.13. Preferential Collection of Claims. Reference is made to
Section 311 of the Trust Indenture Act of 1939. For purposes of Section 311(b)
(4) and (6) of such Act, the following terms shall mean:
(a) "CASH TRANSACTION" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft, xxxx of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation.
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ARTICLE 6
CONCERNING THE HOLDERS
SECTION 6.01. Evidence of Action Taken by Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders 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 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
5.01 and 5.02) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Article.
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Securities; Record Date. Subject to Sections 5.01 and 5.02, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding of
Securities shall be proved by the Security register or by a certificate of the
Registrar thereof. The Company may set a record date for purposes of determining
the identity of holders of Securities entitled to vote or consent to any action
referred to in Section 6.01, which record date may be set at any time or from
time to time by notice to the Trustee, for any date or dates (in the case of any
adjournment or resolicitation) 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, only holders of Securities of
record on such record date shall be entitled to so vote or give such consent or
to withdraw such vote or consent.
SECTION 6.03. Securities Owned by Company Deemed Not Outstanding. In
determining whether the holders of the requisite aggregate principal amount of
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other obligor
on the Securities 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 Trustee shall be protected in relying on any such direction, consent
or waiver only Securities which a Responsible Officer of the Trustee actually
knows are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not
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the Company 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 Company 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 Trustee in accordance with such advice. Upon
request of the Trustee, the Company shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Company to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 5.01 and 5.02, the Trustee
shall be entitled to accept such Officers' 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.
SECTION 6.04. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.01, of
the taking of any action by the holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in connection with such
action, any holder of a 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, 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 specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the holders of
all the Securities.
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01. Supplemental Indentures Without Consent of Holders. The
Company and the Trustee may amend or supplement this Indenture or the Securities
without the consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
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(iii) to provide for the assumption of the Company's obligations
to the Holders of the Securities in the case of a merger, consolidation
or sale of assets pursuant to Article Eight hereof;
(iv) to make any change that would provide any additional rights
or benefits to the Holders of the Securities or that does not adversely
affect the legal rights hereunder of any such Holder; or
(v) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act of 1939.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in Section 7.04 hereof, the Trustee
shall join with the Company in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into such supplemental indenture which
affects its own rights, duties or immunities under this Indenture or otherwise.
SECTION 7.02. With Consent of Holders. Except as provided in the next
succeeding paragraphs, this Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority in aggregate
principal amount of the Securities then outstanding (including consents obtained
in connection with a tender offer or exchange offer for such Securities), and
any existing default or compliance with any provision of this Indenture or the
Securities may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Securities (including
consents obtained in connection with a tender offer or exchange offer for such
Securities).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence satisfactory to the Trustee of the consent
of the Holders as aforesaid, and upon receipt by the Trustee of the documents
described in Section 7.04 hereof, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
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It shall not be necessary for the consent of the Holders under this
Section 7.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
Subject to Sections 4.04 and 4.07 hereof, the Holders of a majority in aggregate
principal amount of the Securities then outstanding may waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities. Without the consent of each Holder affected, however, an amendment
or waiver may not (with respect to any Security held by a non-consenting
Holder):
(i) change the Stated Maturity of the principal of, or any installment of
interest on, any Security;
(ii) reduce the principal amount of, or premium, if any, or interest on,
any Security;
(iii) reduce any amount payable on redemption of the Securities or upon
the occurrence on an Event of Default;
(iv) change the place or currency of payment of principal of, premium, if
any, or interest on, any Security;
(v) impair the right to institute suit for the enforcement of any payment
on or after the Stated Maturity (or, in the case of a redemption, on or after
the redemption date) of any Security;
(vi) reduce the above-stated percentage of outstanding Securities the
consent of whose Holders is necessary to modify or amend the Indenture;
(vii) waive a default in the payment of principal of, premium, if any, or
interest on the Securities;
(viii) reduce the percentage or aggregate principal amount of outstanding
Securities the consent of whose Holders is necessary for waiver of compliance
with certain provisions of the Indenture or for waiver of certain defaults; or
(ix) modify or change any provision of the Indenture with respect to
modification and waiver.
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Neither the Company nor any of its Subsidiaries will, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise to any Holder of any notes for or as an inducement to
any consent, waiver or amendment of any of the terms or provisions of the
Indenture or the Securities unless such consideration is offered to be paid or
agreed to be paid to all Holders of the Securities that consent, waive or agree
to amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
SECTION 7.03. 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 Trustee, the Company and the holders of Securities
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 7.04. Documents to Be Given to Trustee; Compliance with TIA. The
Trustee, subject to the provisions of Sections 5.01 and 5.02, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
such supplemental indenture complies with the applicable provisions of this
Indenture. Every such supplemental indenture shall comply with the TIA.
SECTION 7.05. Notation on Securities in Respect of Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation approved by the Trustee as to form (but not as to substance) as to any
matter provided for by such supplemental indenture or as to any action taken at
any such meeting. If the Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities then outstanding.
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ARTICLE 8
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 8.01. Consolidation, Merger or Sale of Assets. The Company shall
not consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an entirety in one transaction or a series of related
transactions) to, any Person nor permit any Person to merge with or into the
Company unless:
(i) the Company shall be the continuing Person, or the Person (if
other than the Company) formed by such consolidation or into which the
Company is merged or that acquired or leased such property and assets of
the Company shall be a corporation organized and validly existing under
the laws of the United States of America or any jurisdiction thereof and
shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Company on all of
the Securities and under the Indenture;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Company delivers to the Trustee an Officers' Certificate
and Opinion of Counsel, in each case stating that such consolidation,
merger or transfer and such supplemental indenture complies with this
provision and that all conditions precedent provided for herein relating
to such transaction have been complied with.
SECTION 8.02. Successor Corporation Substituted. (a) Upon any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 8.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation), and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein.
(b) Notwithstanding the foregoing, (i) a consolidation or merger by the
Company with or into, or (ii) the sale, assignment, transfer, lease, conveyance
or other disposition by the Company of all or substantially all of its property
or assets
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to, one or more of its Subsidiaries shall not relieve the Company from its
obligations under this Indenture and the Securities.
SECTION 8.03. Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 5.01 and 5.02, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, conveyance, sale,
transfer, lease, exchange or other disposition complies with the applicable
provisions of this Indenture.
ARTICLE 9
REDEMPTION OF SECURITIES
SECTION 9.01. Right of Optional Redemption; Prices. The Company at its
option may, at any time, redeem in whole or in part, in principal amounts of
$1,000 or any integral multiple thereof, the Securities upon payment of a
redemption price equal to the sum of (i) an amount equal to 100% of the
principal amount thereof and (ii) the Make-Whole Premium, together with accrued
and unpaid interest up to but not including the Redemption Date.
SECTION 9.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the holders of Securities to be redeemed as a whole or in part
shall be given by mailing notice of such redemption by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed for
redemption to such holders of Securities at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether 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 designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
The notice of redemption to each such Holder shall identify the
Securities to be redeemed (including CUSIP or CINS numbers) and shall specify
the principal amount of each Security held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities,
that interest accrued to the date fixed for redemption will be paid as specified
in said 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 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
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Security, a new Security or Securities in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities to be redeemed at the option of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
No later than 10:00 a.m. on the redemption date specified in the notice
of redemption given as provided in this Section, the Company will deposit with
the Trustee or with one or more paying agents (or, if the Company is acting as
its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.04) an amount of money sufficient to redeem on the redemption date all
the Securities so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. The Company
will deliver to the Trustee at least 70 days prior to the date fixed for
redemption an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed.
If less than all of the Securities are to be redeemed at any time, the
Trustee shall select, either pro rata, by lot or by any other method it shall in
its sole discretion deem fair and appropriate, Securities to be redeemed in
whole or in part; provided that no Security of $1,000 in principal amount or
less shall be redeemed in part. The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption and, in the case of any
Securities 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 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 9.03. 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 Company 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, except as provided in Sections 5.05 and 11.06, 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,
said Securities or the specified portions thereof shall be paid
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and redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that any
semi-annual payment of interest becoming due on or prior to the date fixed for
redemption shall be payable to the holders of such Securities registered as such
on the relevant Regular Record Date subject to the terms and provisions of
Section 2.04 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 borne by the
Security.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION 9.04. 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 a written statement signed by an authorized officer of the Company and
delivered to the 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 Company 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 Company.
ARTICLE 10
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 10.01. Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may at its option by a Board Resolution, at any time,
elect to have either Section 10.02 or Section 10.03 applied to the outstanding
Securities upon compliance with the conditions set forth below in this Article
Ten.
SECTION 10.02. Legal Defeasance and Discharge. Upon the Company's
exercise under Section 10.01 hereof of the option applicable to this Section
10.02, the Company shall be deemed to have been discharged from any and all
Obligations with respect to all outstanding Securities on the date which is the
123rd day after the deposit referred to in Section 10.04(a); provided that all
of the conditions set forth
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below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, such
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Debt represented by the outstanding Securities, which
shall thereafter be deemed to be "outstanding" only for the purposes of Section
10.05 hereof and the other Sections of this Indenture referred to in clauses (i)
and (ii) of this Section 10.02, and to have satisfied all its other obligations
under such Securities and this Indenture (and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of Holders of outstanding
Securities to receive solely from the trust fund described in Section 10.04
hereof, and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on such Securities when such
payments are due, (ii) the Company's obligations with respect to such Securities
under Sections 2.01, 2.02, 2.05, 2.06, 2.07, 2.08, 2.10, 3.01, 3.02, 3.04 and
10.05 hereof, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, including, without limitation, the Trustee's rights under
Section 5.07 hereof, and the Company's obligations in connection therewith and
with this Article Ten. Subject to compliance with this Article Ten, the Company
may exercise its option under this Section 10.02 notwithstanding the prior
exercise of its option under Section 10.03 hereof with respect to the
Securities.
SECTION 10.03. Covenant Defeasance. Upon the Company's exercise under
Section 10.01 hereof of the option applicable to this Section 10.03, the Company
shall be released from its obligations under the covenants contained in Sections
3.08, 3.09, 3.10, clauses (c) and (d) of Article 4 and Article 8 hereof with
respect to the outstanding Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the
Securities shall thereafter be deemed not outstanding for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed outstanding for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 4.01(c) or
(d) hereof, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
If subsequent to the completion of a defeasance of certain covenants as
described in the immediately preceding paragraph, such outstanding Securities
are declared due and payable because of the occurrence of any remaining Event of
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Default and the amount of money and U.S. Government Obligations deposited in
trust, as described below, would be sufficient to pay amounts due on such
Securities at Stated Maturity but may not be sufficient to pay amounts due on
such Securities upon any acceleration resulting from such Event of Default, then
the Company would remain liable for such payments.
SECTION 10.04. Conditions to Legal or Covenant Defeasance. The following
shall be the conditions to application of either Section 10.02 or Section 10.03
hereof to the outstanding Securities:
(a) the Company has deposited with the Trustee, in trust, money and/or
U.S. Government Obligations that through the payment of interest and principal
in respect thereof in accordance with their terms will provide money in an
amount sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, to pay the principal of, premium, if any, and accrued interest on the
Securities on the Stated Maturity of such payments in accordance with the terms
of the Indenture and the Securities;
(b) in the case of an election under Section 10.02 hereof, the Company
has delivered to the Trustee (i) either (x) an Opinion of Counsel to the effect
that Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company's exercise of its option under this Article
Ten 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, which Opinion of Counsel must be
based upon (and accompanied by a copy of) a ruling of the Internal Revenue
Service to the same effect unless there has been a change in applicable Federal
income tax law after the date of the Indenture such that a ruling is no longer
required or (y) a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect as the aforementioned Opinion of Counsel and
(ii) an Opinion of Counsel to the effect that the creation of the defeasance
trust does not violate the Investment Company Act of 1940 and after the passage
of 123 days following the deposit, the trust fund will not be subject to the
effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the
New York Debtor and Creditor Law;
(c) in the case of an election under Section 10.03 hereof, the delivery
by the Company to the Trustee of (i) an Opinion of Counsel to the effect that,
among other things, the Holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance 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 and defeasance had
not occurred and (ii) an Opinion of Counsel to the effect that the creation of
the defeasance trust does not
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violate the Investment Company Act of 1940 and after the passage of 123 days
following the deposit, the trust fund will not be subject to the effect of
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the New York
Debtor and Creditor Law;
(d) immediately after giving effect to such deposit on a pro forma basis,
no Event of Default, or event that after the giving of notice or lapse of time
or both would become an Event of Default, shall have occurred and be continuing
on the date of such deposit or during the period ending on the 123rd day after
the date of such deposit, and such deposit shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which the Company is bound,
(e) if at such time the Securities are listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of Counsel to the
effect that the Securities will not be delisted as a result of such deposit,
defeasance and discharge,
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to its
election under Sections 10.02 or 10.03 hereof was not made by the Company with
the intent of preferring the Holders of the Securities over the other creditors
of the Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others, and
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under Section
10.02 or the Covenant Defeasance under Section 10.03 (as the case may be) have
been complied with as contemplated by this Section 10.04.
SECTION 10.05. Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions. Subject to Section 10.06 hereof, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee pursuant to Section 10.04 hereof in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any paying agent (including the Company acting as paying
agent) as the Trustee may determine, to the Holders of such Securities of all
sums due and to become due thereon in respect of principal of, premium, if any,
and interest, but such money need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 10.04 hereof or the principal and
interest
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received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Securities.
Anything in this Article Ten to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the Company's request
any money or U.S. Government Obligations held by it as provided in Section 10.04
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 10.04(a) hereof), are
in excess of the amount thereof which would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 10.06. Repayment to Company. Any money deposited with the Trustee
or any paying agent, or then held by the Company, in trust for the payment of
the principal of, premium, if any, or interest on any Security and remaining
unclaimed for two years after such principal, premium, if any, or interest has
become due and payable shall be paid to the Company on its written request or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such paying agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.07. Reinstatement. If the Trustee or paying agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 10.02
or 10.03 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 10.02 or 10.03 hereof until such time as the Trustee or
paying agent is permitted to apply all such amounts in accordance with Section
10.02 or 10.03 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Security to receive such payment
from the amounts held by the Trustee or paying agent.
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ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers, Directors,
Employees and Controlling Persons of Company Exempt from Individual Liability.
No recourse for the payment of the principal of, premium, if any, or interest on
any of the Securities or any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company contained in this Indenture, or in any Security, or because of the
creation of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director, employee or controlling person, as such, of the Company or of
any successor Person, either directly or through the Company or any successor
Person, 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 by the holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties
and Holders. Nothing in this Indenture or in the Securities, 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 the
Securities, 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
and of the holders of the Securities.
SECTION 11.03. Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.04. Notices and Demands on Company, Trustee and Holders. Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Securities
to or on the Company 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 Company is filed by the Company with the Trustee)
to USEC, Inc., 2 Democracy Center, 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000,
Attention: Legal Department, with a copy to the Treasurer. Any notice,
direction, request or demand by the Company or any Securityholder to or upon the
Trustee shall be
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deemed to have been sufficiently given or made, for all purposes, if given or
made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders, 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
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. The Trustee may waive notice
to it of any provision herein, and such waiver shall be deemed to be for its
convenience and discretion. Waivers of notice by Holders shall be filed with the
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 Company and
Securityholders 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
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.05. Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such 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 Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or
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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 Company 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 are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information which is in the possession of the Company,
upon the certificate, statement or opinion of or representations by an officer
or officers of the Company, 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 Company 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 Company, 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 the 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 or the date fixed
for redemption of any Security 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 another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "INCORPORATED PROVISION"), such incorporated provision shall control.
If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the Trust Indenture
Act provision shall be deemed to
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apply to this Indenture as so modified or shall be excluded from applying to the
Indenture as the case may be.
SECTION 11.08. New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes including the obligations of the Company and the rights of
holders of the Securities arising out of or in connection with the Securities,
including the obligations of the Company to pay all principal, interest or other
amounts payable under the Indenture and such Security, will be governed by and
shall be construed in accordance with the laws of said State, without giving
effect to the conflict of laws provisions thereof, except as may otherwise be
required by mandatory provisions of law.
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.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of [ ], 1999.
USEC INC.,
as Issuer
By
-------------------------------
Title:
FIRST UNION NATIONAL BANK,
as Trustee
By
-------------------------------
Title:
59
EXHIBIT A
[FORM OF FACE OF SECURITY]
No. $
[CUSIP] [CINS]
USEC Inc.
[ ]% Senior Note Due 200[ ]
USEC Inc., a Delaware corporation (the "COMPANY"), for value received
hereby promises to pay to [ ] or registered assigns the principal sum of [ ]
Dollars at the Company's office or agency for said purpose in The City of New
York, on [month/date], 200[ ], in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semi-annually on [month/date] and
[month/date] (each an "INTEREST PAYMENT DATE") of each year, commencing with
[month/date], 1999, on said principal sum in like coin or currency at the rate
per annum set forth above at said office or agency from the most recent Interest
Payment Date to which interest on the Securities has been paid or duly provided
for, unless the date hereof is a date to which interest on the Securities has
been paid or duly provided for, in which case from the date of this Security,
or, if no interest on the Securities has been paid or duly provided for, from
[month/date], 199[ ]. Notwithstanding the foregoing, if the date hereof is after
[month/date] or [month/date] (each a "REGULAR RECORD DATE"), as the case may be,
and before the immediately following Interest Payment Date, this Security shall
bear interest from such Interest Payment Date; provided, that if the Company
shall default in the payment of interest due on such Interest Payment Date then
this Security shall bear interest from the next preceding Interest Payment Date
to which interest on the Securities has been paid or duly provided for. The
interest so payable on any Interest Payment Date will, except as otherwise
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this Security is registered at the close of business on the
Regular Record Date preceding such Interest Payment Date whether or not such day
is a business day; provided that interest may be paid, at the option of the
Company, by mailing a check therefor payable to the registered holder entitled
thereto at such holder's last address as it appears on the Security register or
by wire transfer, in immediately available funds, to such bank or other entity
in the continental United States as shall be designated in writing by such
holder prior to the relevant Regular Record Date and shall have appropriate
facilities for such purpose, or in accordance with the standard operating
procedures of the Depositary (as defined in the Indenture).
Interest, other than default interest, on the Securities will be computed
on the basis of a 360-day year consisting of twelve 30-day months.
60
Reference is made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Security shall not be valid or obligatory until the certificate of
authentication hereon shall have been duly signed by the Trustee acting under
the Indenture.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
USEC INC.
By:
------------------------------
Name:
Title:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated:
----------------------
This is one of the Securities described in the within-mentioned
Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:
------------------------------
Authorized Signatory
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[FORM OF REVERSE OF SECURITY]
USEC Inc.
[ ]% Senior Note Due 200[ ]
This Security is one of a duly authorized issue of debt securities of the
Company, limited to the aggregate principal amount of $ , issued or to
be issued pursuant to an indenture dated as of [ ], 1999 (the "Indenture"),
duly executed and delivered by the Company to First Union National Bank, as
Trustee (herein called the "TRUSTEE"). Reference is hereby made to the
Indenture and all indentures supplemental thereto for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Company and the holders (the words "HOLDERS" or "HOLDER"
meaning the registered holders or registered holder) of the Securities.
This Security will bear interest until final maturity at a rate per annum
shown above, except as provided in the next paragraph. The Company will pay
interest on overdue principal of, premium, if any, and to the extent lawful,
interest on overdue installments of interest, at a [ ]% rate per annum based on
a 360-day year consisting of twelve 30-day months.
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all the Securities may be declared
due and payable, in the manner and with the effect, and subject to the
conditions, provided in the Indenture. The Indenture provides that in certain
events such declaration and its consequences may be waived by the holders of a
majority in aggregate principal amount of the Securities then outstanding and
that, prior to any such declaration, such holders may waive any past default
under the Indenture and its consequences except a default in the payment of
principal of, premium, if any, or interest on any of the Securities. Any such
consent or waiver by the holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Security and any Security which may be issued
in exchange or substitution herefor, whether or not any notation thereof is made
upon this Security or such other Securities.
The Indenture permits the Company and the Trustee, with the consent of
the holders of at least a majority in aggregate principal amount of the
Securities at the time outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the holders of
the Securities; provided that no such modification or amendment may, without the
consent of each holder affected
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thereby, (i) change the Stated Maturity (as defined in the Indenture) of the
principal of, or any installment of interest on, any Security, (ii) reduce the
principal amount of, or premium, if any, or any interest on, any Security, (iii)
reduce the amount of principal of any Security payable upon acceleration of the
maturity thereof, (iv) change the place or currency of payment of principal of,
premium, if any, or interest on, any Security, (v) impair the right to institute
suit for the enforcement of any payment on or with respect to any Security, (vi)
reduce the above-stated percentage of outstanding Securities the consent of
whose holders is necessary to modify or amend the Indenture, (vii) reduce the
percentage in principal amount of outstanding Securities the consent of whose
holders is necessary for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults, or (viii) modify any provision of
the Indenture with respect to modification and waiver.
Notwithstanding the foregoing, without the consent of any holder of
Securities, the Company and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Securities in addition to or in place of certificated Securities,
to provide for the assumption of the Company's obligations to holders of
Securities in the case of a merger or consolidation, to make any change that
would provide any additional rights or benefits to the holders of Securities or
that does not adversely affect the legal rights under the Indenture of any such
holder, or to comply with requirements of the Commission (as defined in the
Indenture) in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act of 1939 (as defined in the Indenture).
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security at the place, times, and rate, and in the currency,
herein prescribed.
The Securities are issuable only as registered Securities without coupons
in denominations of $1,000 and any integral multiple of $1,000.
At the office or agency of the Company referred to on the face hereof and
in the manner and subject to the limitations provided in the Indenture,
Securities may be exchanged for a like aggregate principal amount of Securities
of other authorized denominations.
Upon due presentment for registration of transfer of this Security at the
above-mentioned office or agency of the Company, a new Security or Securities of
authorized denominations, for a like aggregate principal amount, will be issued
to the transferee as provided in the Indenture. No service charge shall be made
for any such
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transfer, but the Company may require payment of a sum sufficient to cover any
tax or other similar governmental charge that may be imposed in connection
therewith.
The Securities may be redeemed at the option of the Company, in whole or
in part, in principal amounts of $1,000 or any integral multiple thereof at any
time, upon mailing a notice of such redemption by first class mail not less than
30 nor more than 60 days prior to the Redemption Date, all as provided in the
Indenture, at a redemption price equal to the sum of (i) an amount equal to 100%
of the principal amount thereof and (ii) the Make-Whole Premium, together with
accrued and unpaid interest up to but not including the Redemption Date.
Subject to payment by the Company of a sum sufficient to pay the amount
due on redemption, interest on this Security (or portion hereof if this Security
is redeemed in part) shall cease to accrue upon the date duly fixed for
redemption of this Security (or portion hereof if this Security is redeemed in
part).
The Company, the Trustee, and any authorized agent of the Company or the
Trustee, may deem and treat the registered holder hereof as the absolute owner
of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Company or the Trustee or any authorized agent of the Company or
the Trustee), for the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and, subject to the provisions on the face
hereof, interest hereon and for all other purposes, and neither the Company nor
the Trustee nor any authorized agent of the Company or the Trustee shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if
any, or the interest on this Security, for any claim based thereon, or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture, or in any of the Securities or
because of the creation of any Debt (as defined in the Indenture) represented
thereby, against any incorporator, shareholder, officer, director, employee or
controlling person of the Company or of any successor Person thereof, either
directly or through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly waived and
released.
The Indenture is hereby incorporated by the reference and to the extent
of any variance between the provisions hereof and the Indenture, the Indenture
shall control.
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This Security shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of said State, except as may otherwise be required by mandatory
provisions of law.
This Security will not be an obligation of, or guaranty as to principal
or interest by, the United States government.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ____________________ attorney to transfer said Security on the
books of the Company with full power of substitution in the premises.
Date:
----------- ---------------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within-mentioned instrument in every particular,
without alteration or any change whatsoever.
Signature Guarantee:
--------------------------------
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