Exhibit T3C1
Mercury Finance Company
and
Norwest Bank Minnesota, National Association,
Trustee
-----------------------
INDENTURE
Dated as of ______________, 1998
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SENIOR SECURED NOTES
SENIOR SECURED NOTES
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the
Indenture of the provisions inserted pursuant to Sections 310 - 318(a),
inclusive, of the Trust Indenture Act of 1939, as amended.
TRUST INDENTURE ACT SECTIONS OF INDENTURE
------------------- ----------------------
Section 310(a)(1)...........................................................................10.08
(a)(2) ..............................................................................10.08
(a)(3) ..............................................................................Inapplicable
(a)(4) ..............................................................................Inapplicable
(a)(5) ..............................................................................10.08
(b) ..............................................................................10.07
(c) ..............................................................................Inapplicable
Section 311(a)..............................................................................10.12
(b) ..............................................................................10.12
(c) ..............................................................................Inapplicable
Section 312(a)..............................................................................8.01, 8.02
(b) ..............................................................................8.02
(c) ..............................................................................8.02
Section 313(a)..............................................................................8.03
(b) ..............................................................................8.03
(c) ..............................................................................8.03
(d) ..............................................................................8.03
Section 314(a)..............................................................................8.04
(a)(4) ..............................................................................7.07
(b) ..............................................................................5.02
(c)(1) ..............................................................................14.05
(c)(2) ..............................................................................14.05
(c)(3) ..............................................................................Inapplicable
(d) ..............................................................................5.03
(e) ..............................................................................14.05
(f) ..............................................................................Inapplicable
Section 315(a)..............................................................................10.01
(b) ..............................................................................9.08
(c) ..............................................................................10.01
(d) ..............................................................................10.01, 10.02
(e) ..............................................................................9.07
Section 316(a)(1)(A)........................................................................9.01, 9.06
(a)(1)(B) ..............................................................................9.01
(a)(2) ..............................................................................Inapplicable
(b) ..............................................................................9.04, 9.09
(c) ..............................................................................14.11
Section 317(a)(1)...........................................................................9.02
(a)(2) ..............................................................................9.11
(b) ..............................................................................7.03
Section 318(a)..............................................................................14.08
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* The Cross Reference Sheet is not part of the Indenture.
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Table of Contents*
PAGE
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Recitals.......................................................................................1
ARTICLE I. Definitions........................................................................1
Section 1.01. Certain Terms Defined...................................................1
ACT..........................................................................1
AFFILIATE....................................................................2
AUTHENTICATING AGENT.........................................................2
BOARD OF DIRECTORS...........................................................2
BOARD RESOLUTION.............................................................2
BUSINESS DAY.................................................................2
CAPITAL LEASE................................................................2
CAPITAL LEASE OBLIGATIONS....................................................2
COLLATERAL SECURITY DOCUMENTS................................................3
COMMISSION...................................................................3
COMMON STOCK.................................................................3
COMPANY......................................................................3
COMPANY REQUEST OR COMPANY ORDER.............................................3
CORPORATE TRUST OFFICE.......................................................4
COVENANT DEFEASANCE..........................................................4
DEFAULT......................................................................4
DEFAULTED INTEREST...........................................................4
DEFEASANCE...................................................................4
DEFEASIBLE SERIES............................................................4
DEPOSITARY...................................................................4
EVENT OF DEFAULT.............................................................4
EXCHANGE ACT.................................................................5
GAAP.........................................................................5
GLOBAL SECURITY..............................................................5
HOLDER.......................................................................5
INDEBTEDNESS.................................................................5
INDENTURE....................................................................6
INTEREST.....................................................................6
INTEREST PAYMENT DATE........................................................6
MATERIAL ADVERSE EFFECT......................................................6
MATURITY.....................................................................7
NOTICE OF DEFAULT............................................................7
OFFICER'S CERTIFICATE........................................................7
OPINION OF COUNSEL...........................................................7
ORIGINAL ISSUE DISCOUNT SECURITY.............................................7
OUTSTANDING..................................................................7
PAYING AGENT.................................................................8
PERSON.......................................................................8
PLACE OF PAYMENT.............................................................8
PREDECESSOR SECURITY.........................................................8
REDEMPTION DATE..............................................................9
REDEMPTION PRICE.............................................................9
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REGULAR RECORD DATE..........................................................9
RESPONSIBLE OFFICER..........................................................9
SECURITIES...................................................................9
SECURITY REGISTER AND SECURITY REGISTRAR....................................10
SPECIAL RECORD DATE.........................................................10
STATED MATURITY.............................................................10
SUBSIDIARY..................................................................10
TRUST INDENTURE ACT.........................................................11
TRUSTEE.....................................................................11
U.S. GOVERNMENT OBLIGATION..................................................11
VICE PRESIDENT..............................................................11
ARTICLE II. THE SECURITIES...................................................................12
Section 2.01. Designation and Amount of Securities...................................12
Section 2.02. Form of Securities and Trustee's Certificate of
Authentication..............................................................14
Section 2.03. Date and Denominations.................................................15
Section 2.04. Execution, Authentication, and Delivery of Securities..................15
Section 2.05. Registration of Transfer and Exchange..................................16
Section 2.06. Temporary Securities...................................................18
Section 2.07. Xxxxxxxxx, Destroyed, Lost, and Stolen Securities......................18
Section 2.08. Cancellation of Surrendered Securities.................................19
Section 2.09. Payment of Interest; Interest Rights Preserved.........................20
Section 2.10. Persons Deemed Owners..................................................21
Section 2.11. Computation of Interest................................................21
Section 2.12. CUSIP Numbers..........................................................21
ARTICLE III. REDEMPTION OF SECURITIES........................................................21
Section 3.01. Applicability of Article...............................................21
Section 3.02. Election to Redeem; Notice to Trustee..................................22
Section 3.03. Deposit of Redemption Price............................................23
Section 3.04. Securities Payable on Redemption Date..................................23
Section 3.05. Securities Redeemed in Part............................................23
ARTICLE IV. SINKING FUNDS....................................................................23
Section 4.01. Applicability of Article...............................................24
Section 4.02. Satisfaction of Sinking Fund Payments With Securities..................24
Section 4.03. Redemption of Securities for Sinking Fund..............................24
ARTICLE V. SECURITY..........................................................................24
Section 5.01. Security Interest......................................................24
Section 5.02. Recording of Security Interests; Opinions of Counsel...................25
Section 5.03. Release of Collateral..................................................27
Section 5.04. Release upon Defeasance or Release of Company's Obligations............27
Section 5.05. Reliance on Opinion of Counsel.........................................27
Section 5.06. Payment of Expenses....................................................27
Section 5.07. Trustee's Duties.......................................................27
ARTICLE VI. DEFEASANCE AND COVENANT DEFEASANCE...............................................28
Section 6.01. Company's Option to Effect Defeasance or Covenant Defeasance...........28
Section 6.02. Defeasance and Discharge...............................................28
Section 6.03. Covenant Defeasance....................................................29
Section 6.04. Conditions to Defeasance or Covenant Defeasance........................30
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Section 6.05. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.......................................31
Section 6.06. Reinstatement..........................................................32
ARTICLE VII. PARTICULAR COVENANTS OF THE COMPANY.............................................32
Section 7.01. Payment of Principal, Premium, and Interest on Securities..............32
Section 7.02. Maintenance of Office or Agency........................................33
Section 7.03. Money for Securities Payments to be Held in Trust......................33
Section 7.04. Payment of Taxes and Other Claims......................................34
Section 7.05. Existence..............................................................35
Section 7.06. Compliance with Laws...................................................35
Section 7.07. Statement by Officers as to Default....................................35
Section 7.08. Waiver of Certain Covenants............................................35
Section 7.09. Calculation of Original Issue Discount.................................36
ARTICLE VIII. SECURITIES HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE..............................................................................36
Section 8.01. Company to Furnish Trustee Names and Addresses of Holders..............36
Section 8.02. Preservation of Information; Communication to Holders..................36
Section 8.03. Reports by Trustee.....................................................36
Section 8.04. Reports by Company.....................................................37
ARTICLE IX. DEFAULT..........................................................................37
Section 9.01. Event of Default.......................................................37
Section 9.02. Covenant of Company to Pay to Trustee Whole Amount Due on
Securities on Default in Payment of Interest or Principal; Suits for
Enforcement by Trustee......................................................40
Section 9.03. Application of Money Collected by Trustee..............................42
Section 9.04. Limitation on Suits by Holders of Securities...........................42
Section 9.05. Rights and Remedies Cumulative; Delay or Omission in Exercise
of Rights not a Waiver of Event of Default..................................43
Section 9.06. Rights of Holders of Majority in Principal Amount of
Outstanding Securities to Direct Trustee....................................43
Section 9.07. Requirement of an Undertaking to Pay Costs in Certain Suits
Under the Indenture or Against the Trustee..................................43
Section 9.08. Notice of Defaults.....................................................43
Section 9.09. Unconditional Right of Holders to Receive Principal, Premium,
and Interest................................................................44
Section 9.10. Restoration of Rights and Remedies.....................................44
Section 9.11. Trustee May File Proofs of Claims......................................44
ARTICLE X. CONCERNING THE TRUSTEE............................................................46
Section 10.01. Certain Duties and Responsibilities...................................46
Section 10.02. Certain Rights of Trustee.............................................46
Section 10.03. Not Responsible for Recitals or Issuance of Securities................47
Section 10.04. May Hold Securities...................................................47
Section 10.05. Money Held in Trust...................................................47
Section 10.06. Compensation and Reimbursement........................................47
Section 10.07. Disqualification; Conflicting Interests...............................48
Section 10.08. Corporate Trustee Required Eligibility................................48
Section 10.09. Resignation and Removal; Appointment of Successor.....................48
Section 10.10. Acceptance of Appointment by Successor................................50
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Section 10.11. Merger, Conversion, Consolidation, or Succession to
Business...................................................................51
Section 10.12. Preferential Collection of Claims Against Company.....................51
Section 10.13. Appointment of Authenticating Agent...................................52
ARTICLE XI. SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS......................................53
Section 11.01. Purposes for Which Supplemental Indentures May Be Entered
Into Without Consent of Holders.............................................53
Section 11.02. Modification of Indenture With Consent of Holders of at
Least a Majority in Principal Amount of Outstanding Securities..............54
Section 11.03. Execution of Supplemental Indentures..................................55
Section 11.04. Effect of Supplemental Indentures.....................................56
Section 11.05. Conformity with Trust Indenture Act...................................56
Section 11.06. Reference in Securities to Supplemental Indentures....................56
ARTICLE XII. CONSOLIDATION, MERGER, SALE, OR TRANSFER........................................56
Section 12.01. Consolidations and Mergers of Company and Sales Permitted
Only on Certain Terms.......................................................56
ARTICLE XIII. SATISFACTION AND DISCHARGE OF INDENTURE........................................57
Section 13.01. Satisfaction and Discharge of Indenture...............................57
Section 13.02. Application of Trust Money............................................58
ARTICLE XIV. MISCELLANEOUS PROVISIONS........................................................58
Section 14.01. Successors and Assigns of Company Bound by Indenture..................58
Section 14.02. Service of Required Notice to Trustee and Company.....................58
Section 14.03. Service of Required Notice to Holders; Waiver.........................58
Section 14.04. Indenture and Securities to be Construed in Accordance with
the Laws of the State of New York...........................................59
Section 14.05. Compliance Certificates and Opinions..................................59
Section 14.06. Form of Documents Delivered to Trustee................................59
Section 14.07. Payments Due on Non-Business Days.....................................59
Section 14.08. Provisions Required by Trust Indenture Act to Control.................60
Section 14.09. Invalidity of Particular Provisions...................................60
Section 14.10. Indenture May be Executed In Counterparts.............................60
Section 14.11. Acts of Holders; Record Dates.........................................60
Section 14.12. Effect of Headings and Table of Contents..............................62
Section 14.13. Benefits of Indenture.................................................62
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This INDENTURE, dated as of ___________ __, 1998, between
Mercury Finance Company, a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), and Norwest Bank Minnesota,
National Association, a U.S. national banking association, as Trustee (the
"Trustee").
RECITALS
A. The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its senior
secured notes (the "Securities"), to be issued in one or more series as in this
Indenture provided.
B. All acts and things necessary to make the Securities, when
the Securities have been executed by the Company and authenticated by the
Trustee and delivered as provided in this Indenture, 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 and performed,
and the execution and delivery by the Company of this Indenture and the issue
hereunder of the Securities have in all respects been duly authorized; and the
Company, in the exercise of legal right and power in it vested, is executing and
delivering this Indenture and proposes to make, execute, issue and deliver the
Securities.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In order to declare the terms and conditions upon which the
Securities are authenticated, issued and delivered, and in consideration of the
premises and of the purchase and acceptance of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of the
respective Holders from time to time of the Securities or of a series thereof,
as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. CERTAIN TERMS DEFINED.
(a) The terms defined in this Section 1.01 for all purposes of
this Indenture and of any indenture supplemental hereto (except as herein or
therein otherwise expressly provided or unless the context of this Indenture or
any indenture supplemental hereto otherwise requires) have the respective
meanings specified in this Section 1.01. All other terms used in this Indenture
that are defined in the Trust Indenture Act, either directly or by reference
therein (except as herein otherwise expressly provided or unless the context of
this Indenture otherwise requires), have the respective meanings assigned to
such terms in the Trust Indenture Act as in force at the date of original
execution of this Indenture.
ACT:
The term "Act," when used with respect to any Holder, has the
meaning set forth in Section 14.11.
AFFILIATE:
The term "Affiliate" means, with respect to a particular
Person, any Person that, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, control of a Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative of the foregoing.
AUTHENTICATING AGENT:
The term "Authenticating Agent" means any Person authorized by
the Trustee pursuant to Section 10.13 to act on behalf of the Trustee to
authenticate Securities of one or more series.
BOARD OF DIRECTORS:
The term "Board of Directors" means the Board of Directors of
the Company or any duly authorized committee of such Board.
BOARD RESOLUTION:
The term "Board Resolution" means a copy of a resolution
delivered to the Trustee and certified by the Secretary or an Assistant
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.
BUSINESS DAY:
The term "Business Day," when used with respect to any Place
of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or required by law or executive order to close.
CAPITAL LEASE:
The term "Capital Lease" means, with respect to any Person,
any lease of property (whether real, personal, or mixed) by such Person or any
of its Subsidiaries as lessee that would be capitalized on a balance sheet of
such Person or any of its Subsidiaries prepared in conformity with GAAP, other
than, in the case of such Person or any of its Subsidiaries, any such lease
under which such Person or any of its Subsidiaries is the lessor.
CAPITAL LEASE OBLIGATIONS:
2
The term "Capital Lease Obligations" means, with respect to
any Person, the capitalized amount of all obligations of such Person and its
Subsidiaries under Capital Leases, as determined on a consolidated basis in
conformity with GAAP.
COLLATERAL SECURITY DOCUMENTS:
The term "Collateral Security Documents" has the meaning set
forth in Section 5.01(a).
COMMISSION:
The term "Commission" means the Securities and Exchange
Commission, as from time to time constituted, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
COMMON STOCK:
The term "Common Stock" means the common stock of the Company.
COMPANY:
The term "Company" means Mercury Finance Company, a Delaware
corporation, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" will mean such
successor Person.
COMPANY COLLATERAL:
The term "Company Collateral" means, collectively, (i) "Collateral" as
such term is defined in the Company Pledge Agreement and (ii) "Collateral" as
such term is defined in the Company Security Agreement.
COMPANY PLEDGE AGREEMENT:
The term "Company Pledge Agreement" means the Company Pledge
Agreement dated as of ___________ __, 1998 between the Company and the Trustee,
as supplemented and amended from time to time in accordance with the terms
thereof.
COMPANY REQUEST OR COMPANY ORDER:
The term "Company Request" or "Company Order" means a written
request or order signed in the name of the Company by one of its Responsible
Officers and delivered to the Trustee.
COMPANY SECURITY AGREEMENT:
3
The term "Company Security Agreement" means the Company
Security Agreement dated as of ___________ __, 1998 between the Company and the
Trustee, as supplemented and amended from time to time in accordance with the
terms thereof.
COMPANY SECURITY DOCUMENTS:
The term "Company Security Documents" means the Company Pledge
Agreement and the Company Security Agreement.
CORPORATE TRUST OFFICE:
The term "Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust business is
principally administered, which on the date hereof is Sixth Street and Marquette
Avenue, Minneapolis, Minnesota 55479.
COVENANT DEFEASANCE:
The term "Covenant Defeasance" has the meaning set forth in
Section 6.03.
DEFAULT:
The term "Default" means any event which, with notice or
passage of time or both, would constitute an Event of Default.
DEFAULTED INTEREST:
The term "Defaulted Interest" has the meaning set forth in
Section 2.09.
DEFEASANCE:
The term "Defeasance" has the meaning set forth in Section
6.02.
DEFEASIBLE SERIES:
The term "Defeasible Series" has the meaning set forth in
Section 6.01.
DEPOSITARY:
The term "Depositary" means, with respect to Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is
designated to act as Depositary for such Securities in accordance with Section
2.01.
EVENT OF DEFAULT:
The term "Event of Default" has the meaning set forth in
Section 9.01(a).
4
EXCHANGE ACT:
The term "Exchange Act" means the Securities Exchange Act of
1934, as amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, as the same may be in effect from time to time.
FINANCE BUSINESS
The term "Finance Business" means the business of acquiring
and/or making loans (a majority of which shall be secured) and/or servicing
Finance Receivables and the transaction of such other business as may be
reasonably incidental thereto including, without limitation, the leasing
business and the direct lending business including the sale of insurance as
agent or broker.
GAAP:
The term "GAAP" means generally accepted accounting principles
in the United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and The American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by any
successor entity as may be in general use by significant segments of the
accounting profession, which are applicable to the circumstances as of the date
of determination.
GLOBAL SECURITY:
The term "Global Security" means a Security that evidences all
or part of the Securities of any series and is authenticated and delivered to,
and registered in the name of, the Depositary for such Securities or a nominee
thereof.
HOLDER:
The term "Holder" means a person in whose name a particular
Security is registered in the Security Register.
INDEBTEDNESS:
The term "Indebtedness" means, as applied to any Person,
without duplication, (a) indebtedness for borrowed money, all indebtedness
evidenced by notes, bonds, debentures or other evidences of indebtedness, and
all indebtedness under purchase money mortgages or other purchase money liens or
conditional sales or similar title retention agreements, in each case where such
indebtedness has been created, incurred, assumed or guaranteed by such Person or
where such Person is otherwise liable therefor, and (b) indebtedness for
borrowed money secured by any mortgage, pledge or other lien or encumbrance upon
property owned by such Person even though such Person has not assumed or become
liable for the payment of such indebtedness; PROVIDED, HOWEVER, that
indebtedness of the type referred to in clause (b) above shall be
5
included within the definition of "Indebtedness" only to the extent of the
lesser of: (i) the amount of the underlying indebtedness referred to in the
clause (b) above and (ii) the aggregate value of the security for such
indebtedness.
INDENTURE:
The term "Indenture" means this Indenture, as this Indenture
may be amended, supplemented or otherwise modified from time to time, including,
for all purposes of this Indenture and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" will also include the terms of particular series of Securities
established in accordance with Section 2.01.
INDENTURE OBLIGATIONS:
The term "Indenture Obligations" means the obligations of the
Company to pay principal of, premium, if any, and interest on, and other amounts
payable in respect of, the Securities at the Stated Maturity of each such
payment, and (to the extent permitted by applicable law) as provided in the
Securities, interest on overdue principal, if any, of, overdue interest, if any,
on, and other overdue amounts, if any, payable with respect to, the Securities
and the performance of all other obligations of the Company and its Subsidiaries
to the Trustee and the Holders (with respect to the Securities) under this
Indenture, the Securities and the Company Security Documents, according to the
terms thereunder, and all other amounts due or to become due under this
Indenture, the Company Security Documents and the Subsidiaries Security
Agreement.
INTEREST:
The term "interest," (i) when used with respect to an Original
Issue Discount Security, which by its terms bears interest only after Maturity,
means interest which accrues from and after and is payable after Maturity and
(ii) when used with respect to any Security, means the amount of all interest
accruing on such Security, including any default interest and any interest that
would have accrued after any Event of Default but for the occurrence of such
Event of Default, whether or not a claim for such interest would be otherwise
allowable under applicable law.
INTEREST PAYMENT DATE:
The term "Interest Payment Date," when used with respect to
any Security, means the Stated Maturity of an installment of interest on such
Security.
MATERIAL ADVERSE EFFECT:
The term "Material Adverse Effect" means a material adverse
effect on the business, assets, financial condition or results of operations of
the Company (taken together with its Subsidiaries as a whole).
6
MATURITY:
The term "Maturity," when used with respect to any Security,
means the date on which the principal of that Security or an installment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption, or
otherwise.
NOTICE OF DEFAULT:
The term "Notice of Default" means a written notice of the
kind set forth in Section 9.01(a)(iv).
OFFICER'S CERTIFICATE:
The term "Officer's Certificate" means a certificate executed
on behalf of the Company by a Responsible Officer and delivered to the Trustee.
OPINION OF COUNSEL:
The term "Opinion of Counsel" means an opinion in writing
signed by legal counsel, who, subject to any express provisions hereof, may be
an employee of or counsel to the Company or any Subsidiary, reasonably
acceptable to the Trustee.
ORIGINAL ISSUE DISCOUNT SECURITY:
The term "Original Issue Discount Security" means any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 9.01(b).
OUTSTANDING:
The term "Outstanding" means, when used with reference to
Securities as of a particular time, all Securities theretofore issued by the
Company and 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 in respect of which (i) notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made, and (ii) money in the amount required
for the redemption thereof has been deposited with the Trustee or any Paying
Agent (other than the Company) in trust for the Holders of such Securities, (c)
Securities paid pursuant to Section 2.07(c), and (d) Securities in exchange for
or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company; PROVIDED, HOWEVER, that in determining
whether the Holders of the requisite principal amount of the Outstanding
Securities have given any request, demand, authorization, direction, notice,
consent, or waiver hereunder, (x)
7
the principal amount of an Original Issue Discount Security that will be deemed
to be Outstanding will be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof to such date pursuant to Section 9.01(b), (y) the principal
amount of a Security denominated in one or more foreign currencies or currency
units will be the U.S. dollar equivalent, determined in the manner contemplated
by Section 2.01 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in clause (i) above) of such Security, and (z)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor will be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee will be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned will 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 the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
PAYING AGENT:
The term "Paying Agent" means any Person authorized by the
Company to pay the principal of or any premium or interest on any Securities on
behalf of the Company.
PERSON:
The term "Person" means any individual, partnership,
corporation, limited liability company, limited liability partnership, joint
stock company, business trust, trust, unincorporated association, joint
venture, or other entity, or a governmental or political subdivision or
agency thereof.
PLACE OF PAYMENT:
The term "Place of Payment," when used with respect to the
Securities of any series, means the place or places for the payment of the
principal of and any premium and interest on the Securities of that series
established in accordance with Section 2.01.
PREDECESSOR SECURITY:
The term "Predecessor Security," when used with respect to any
particular Security, means every previous Security evidencing all or a portion
of the same debt as that evidenced by such Security; and, for the purposes of
this definition, any Security authenticated and delivered under Section 2.07 in
exchange for or in lieu of a mutilated, destroyed, lost, or stolen Security will
be deemed to evidence the same debt as the mutilated, destroyed, lost, or stolen
Security.
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RECEIVABLES:
The term "Receivables" means (i) consumer installment sale
contracts and loans evidenced by promissory notes secured by new and used
automobiles and light trucks, (ii) other consumer installment sale contracts or
lease contracts and (iii) loans secured by residential mortgages, in the case of
each of the clauses (i), (ii) and (iii), that are purchased or originated in the
ordinary course of business by the Company or any Subsidiary of the Company.
REDEMPTION DATE:
The term "Redemption Date," when used with respect to any
Security to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
REDEMPTION PRICE:
The term "Redemption Price," when used with respect to any
Security to be redeemed, means the price (including premium, if any) at which it
is to be redeemed pursuant to this Indenture.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date established
for that purpose in accordance with Section 2.01.
RESPONSIBLE OFFICER:
The term "Responsible Officer," when used (a) with respect to
the Company, means the Chief Executive Officer, the President, the Chief
Financial Officer or the Secretary of the Company and (b) with respect to the
Trustee, means any Vice President, any Assistant Vice President, any Assistant
Secretary, any Assistant Treasurer, any trust officer or assistant trust
officer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
are such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
SECURITIES:
The term "Securities" has the meaning set forth in the first
recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
SECURITY INTEREST:
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The term "Security Interest" means the security interest in
the Company Collateral and the Subsidiaries Collateral, including the priority
thereof, created by the Collateral Security Documents in favor of the Trustee
for the benefit of the Holders of the Securities issued hereunder.
SECURITY REGISTER AND SECURITY REGISTRAR:
The terms "Security Register" and "Security Registrar" have
the respective meanings set forth in Section 2.05.
SPECIAL RECORD DATE:
The term "Special Record Date" for the payment of any
Defaulted Interest means a date fixed by the Trustee pursuant to Section 2.09.
STATED MATURITY:
The term "Stated Maturity," when used with respect to any
Security, any installment of interest thereon, or any other amount payable under
this Indenture or the Securities, means the date specified in this Indenture or
such Security as the regularly scheduled date on which the principal of such
Security, such installment of interest, or such other amount, is due and
payable.
SUBSIDIARIES COLLATERAL:
The term "Subsidiaries Collateral" has the meaning assigned to
the term "Collateral" in the Subsidiaries Security Agreement.
SUBSIDIARIES GUARANTY AGREEMENT:
The term "Subsidiaries Guaranty Agreement" means the
Subsidiaries Guaranty Agreement dated as of ___________ __, 1998 made by each
Subsidiary of the Company in favor of the Trustee for the benefit of the Holders
as it may be supplemented and amended from time to time in accordance with the
terms thereof.
SUBSIDIARIES SECURITY AGREEMENT:
The term "Subsidiaries Security Agreement" means the
Subsidiaries Security Agreement dated as of ____________ __, 1998 between each
Subsidiary and the Trustee.
SUBSIDIARY:
The term "Subsidiary" means, as applied with respect to any
Person, any corporation, partnership, or other business entity of which, in the
case of a corporation, more than 50% of the issued and outstanding capital stock
having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation has or
10
might have voting power upon the occurrence of any contingency), or, in the case
of any partnership or other legal entity, more than 50% of the ordinary equity
capital interests, is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries, or by one
or more of such Person's other Subsidiaries. Unless the context of this
Indenture or any indenture supplemental hereto otherwise expressly requires, the
term "Subsidiary" shall refer to a Subsidiary of the Company.
TRUST INDENTURE ACT:
The term "Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended, as in force at the date as of which this instrument was
executed; PROVIDED, HOWEVER, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939, as so amended.
TRUSTEE:
The term "Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture and,
thereafter, "Trustee" will mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series will mean each Trustee with
respect to Securities of that series.
U.S. GOVERNMENT OBLIGATION:
The term "U.S. Government Obligation" means (a) any security
that is (i) a direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof and (b) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any U.S. Government Obligation
specified in clause (a), which U.S. Government Obligation is held by such
custodian for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any such U.S.
Government Obligation, PROVIDED that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
VICE PRESIDENT:
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The term "Vice President," when used with respect to the
Company or the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president."
WAREHOUSE FACILITY:
The term "Warehouse Facility" means any funding arrangement
with a financial institution or other lender or purchaser to the extent (and
only to the extent) funding thereunder is used exclusively to finance or
refinance the purchase or origination of Receivables by the Company or any
Subsidiary in each case in the ordinary course of the Finance Business.
(b) The words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture. 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. Certain terms
used principally in Articles VI, VII, and X are defined in those Articles. Terms
in the singular include the plural and terms in the plural include the singular.
ARTICLE II. THE SECURITIES
SECTION 2.01. DESIGNATION AND AMOUNT OF SECURITIES.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities may be issued in one or more series. There
will be established in or pursuant to a Board Resolution and, subject to Section
2.04, set forth or determined in the manner provided in an Officer's
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series: (i) the title of the Securities of
the series (which will distinguish the Securities of the series from Securities
of any other series); (ii) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in the exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.05, 2.06, 2.07, 3.05, or 11.06 and except for any
Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder); (iii) the Person to whom any interest on
a Security of the series will be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest; (iv) the date or dates
on which the principal of the Securities of the series is payable; (v) the rate
or rates at which the Securities of the series will bear interest, if any, the
date or dates from which such interest will accrue, the Interest Payment Dates
on which any such interest will be payable, and the Regular Record Date for any
interest payable on any Interest Payment Date; (vi) the place or places where
the principal of and any premium and interest on Securities of the series will
be payable; (vii) the period or periods within which, the price or prices at
which, and the terms and conditions upon which Securities
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of the series may be redeemed, in whole or in part, at the option of the
Company; (viii) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which, and the terms and conditions upon which Securities of
the series will be redeemed or purchased, in whole or in part, pursuant to such
obligation; (ix) if other than denominations of $1,000 and integral multiples
thereof, the denominations in which Securities of the series will be issuable;
(x) the currency, currencies, or currency units in which payment of the
principal of and any premium and interest on any Securities of the series will
be payable if other than the currency of the United States of America and the
manner of determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in Section
1.01; (xi) if the amount of payments of principal of or any premium or interest
on any Securities of the series may be determined with reference to an index,
based upon a formula, or in some other manner, the manner in which such amounts
will be determined; (xii) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies, or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election is
made will be payable, and the periods within which and the terms and conditions
upon which such election is to be made; (xiii) if other than the principal
amount thereof, the portion of the principal amount of Securities of the series
which will be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 9.01(b); (xiv) if applicable, that the Securities of the
series will be subject to either or both of Defeasance or Covenant Defeasance as
provided in Article VI, provided that no series of Securities that is
convertible into Common Stock pursuant to Section 2.01(b)(xvi) or convertible
into or exchangeable for any other securities pursuant to Section 2.01(b)(xvii)
will be subject to Defeasance pursuant to Section 6.02; (xv) if and as
applicable, that the Securities of the series will be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the
Depositary or Depositaries for such Global Security or Global Securities and any
circumstances other than those set forth in Section 2.05 in which any such
Global Security may be transferred to, and registered and exchanged for
Securities registered in the name of, a Person other than the Depositary for
such Global Security or a nominee thereof and in which any such transfer may be
registered; (xvi) the terms and conditions, if any, pursuant to which the
Securities are convertible into Common Stock; (xvii) the terms and conditions,
if any, pursuant to which the Securities are convertible into or exchangeable
for any other securities, including (without limitation) securities of Persons
other than the Company; (xviii) if and as applicable, that the Securities of the
series will be subordinate and subject in right of payment to the prior payment
of other Indebtedness; and (xix) any other terms of, or provisions, covenants,
rights or other matters applicable to, the series (which terms, provisions,
covenants, rights or other matters will not be inconsistent with the provisions
of this Indenture, except as permitted by Section 11.01(d)).
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(c) All Securities of any one series will be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to below and (subject to Section
2.04) set forth or determined in the manner provided in the Officer's
Certificate referred to above or in any such indenture supplemental hereto.
(d) If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action will be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee concurrently with or prior to the delivery
of the Officer's Certificate setting forth the terms of the series.
SECTION 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
(a) The Securities of each series will be in such form as may
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, and may have such letters, numbers, or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action will be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee concurrently
with or prior to the delivery of the Company Order contemplated by Section 2.04
for the authentication and delivery of such Securities.
(b) The definitive Securities will be printed, lithographed,
or engraved on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
(c) The Trustee's certificate of authentication will be in
substantially the following form:
[Form of Trustee's Certificate of Authentication for Securities]
Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
------------------------------------,
as Trustee
By:
-----------------------------
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Authorized Signatory
(d) Every Global Security authenticated and delivered
hereunder will bear a legend in substantially the following form:
[Form of Legend for Global Securities]
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof, and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, this Security will be a Global Security subject to the
foregoing, except in such limited circumstances.
SECTION 2.03. DATE AND DENOMINATIONS.
Each Security will be dated the date of its authentication.
The Securities of each series will be issuable only in registered form without
coupons in such denominations as may be specified in accordance with Section
2.01. In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series will be issuable in
denominations of $1,000 and integral multiples thereof.
SECTION 2.04. EXECUTION, AUTHENTICATION, AND DELIVERY OF SECURITIES.
(a) The Securities will be executed on behalf of the Company
by the Chief Executive Officer or the President of the Company and attested by
the Treasurer or the Secretary of the Company under its corporate seal. The
signature of any of these officers on the Securities may be manual or facsimile.
The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted, or otherwise reproduced on the Securities.
(b) Only such Securities bearing the Trustee's certificate of
authentication, signed manually by the Trustee, will be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such execution of
the certificate of authentication by the Trustee upon any Securities executed by
the Company will be conclusive evidence that the Securities so authenticated
have been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 2.08, for all
purposes of this Indenture such Security will be deemed never to have been
authenticated and delivered hereunder and will never be entitled to the benefits
of this Indenture.
15
(c) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company will bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
(d) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order will authenticate and make such
Securities available for delivery. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 2.01 and 2.02, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee will be entitled to receive, and (subject to
Section 10.01) will be fully protected in relying upon, an Opinion of Counsel
stating (i) if the form of such Securities has been established by or pursuant
to a Board Resolution as permitted by Section 2.02, that such form has been
established in conformity with the provisions of this Indenture, (ii) if the
terms of such Securities have been established by or pursuant to a Board
Resolution as permitted by Section 2.01, that such terms have been established
in conformity with the provisions of this Indenture, and (iii) that such
Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium, or other
laws of general applicability relating to or affecting creditors' rights and by
general principles of equity.
(e) Notwithstanding the provisions of Sections 2.01 and
2.04(d), if all Securities of a series are not to be originally issued at one
time, it will not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 2.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to Section 2.04(d) at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
SECTION 2.05. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Company will cause to be kept at the Corporate Trust
Office a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company will provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
16
(b) Upon surrender for registration of transfer of any
Security of any series at the office or agency in a Place of Payment for that
series, the Company will execute, and the Trustee will authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
(c) At the option of the Holder, Securities of any series may
be exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company will execute, and the
Trustee will authenticate and make available for delivery, the Securities which
the Holder making the exchange is entitled to receive.
(d) Every Security presented or surrendered for registration
of transfer or exchange will (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument or instruments of
transfer, in form reasonably satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing. No service charge will be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 2.06, 3.05, or 11.06 not involving any transfer.
The Company will not be required (i) to issue, register the transfer of, or
exchange Securities of any series during a period beginning at the opening of
business 15 calendar days before the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 3.02(c) and
ending at the close of business on the day of such mailing or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except, in the case of any Securities to be redeemed in part, the
portion thereof not being redeemed.
(e) All Securities issued upon any registration of transfer or
exchange of Securities will 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 registration of transfer or exchange.
(f) Notwithstanding any other provision in this Indenture, no
Global Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(i) such Depositary (A) notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (B) ceases to be a clearing
agency registered under the Exchange Act, (ii) the Company executes and delivers
to the Trustee a Company Order that such Global Security shall be so
transferable, registrable, and exchangeable, and such transfers shall be
registrable, (iii) there shall have occurred and be continuing an Event
17
of Default with respect to the Securities evidenced by such Global Security or
(iv) there shall exist such other circumstances, if any, as have been specified
for this purpose in accordance with Section 2.01. Notwithstanding any other
provision in this Indenture, a Global Security to which the restriction set
forth in the preceding sentence shall have ceased to apply may be transferred
only to, and may be registered and exchanged for Securities registered only in
the name or names of, such Person or Persons as the Depositary for such Global
Security shall have directed and no transfer thereof other than such a transfer
may be registered. Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of this Section 2.05(f) shall apply,
whether pursuant to this Section 2.05, Section 2.06, 2.07, 3.05, or 11.06 or
otherwise, will be authenticated and delivered in the form of, and will be, a
Global Security.
SECTION 2.06. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute and register and upon Company Order the Trustee
will authenticate and make available for delivery temporary Securities (printed,
lithographed, or typewritten), 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 officers executing such Securities as evidenced by their
execution of such Securities; PROVIDED, HOWEVER, that the Company will use
reasonable efforts to have definitive Securities of that series available at the
times of any issuance of Securities under this Indenture. Every temporary
Security will be executed and registered 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. The Company will execute and
register and furnish definitive Securities of such series as soon as practicable
and thereupon any or all temporary Securities of such series may be surrendered
in exchange therefor at the office or agency of the Company in the Place of
Payment for that series, and the Trustee will authenticate and make available
for delivery in exchange for such temporary Securities of such series one or
more definitive Securities of the same series, of any authorized denominations,
and of a like aggregate principal amount and tenor. Such exchange will be made
by the Company at its own expense and without any charge to the Holder therefor.
Until so exchanged, the temporary Securities of any series will be entitled to
the same benefits under this Indenture as definitive Securities of the same
series authenticated and delivered hereunder.
SECTION 2.07. MUTILATED, DESTROYED, LOST, AND STOLEN SECURITIES.
(a) If any mutilated Security is surrendered to the Trustee,
the Company will execute and the Trustee will authenticate and make available
for delivery in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
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(b) If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss, or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company will execute and the Trustee will authenticate
and make available for delivery, in lieu of any such destroyed, lost, or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
(c) In case any such mutilated, destroyed, lost, or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section
2.07, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
(e) Every new Security of any series issued pursuant to this
Section 2.07 in exchange for any mutilated Security or in lieu of any destroyed,
lost, or stolen Security will constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost, or
stolen Security shall be at any time enforceable by anyone, and will be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series duly issued hereunder.
(f) The provisions of this Section 2.07 are exclusive and will
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost, or stolen Securities.
SECTION 2.08. CANCELLATION OF SURRENDERED SECURITIES.
All Securities surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any sinking fund
payment will, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and will be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered will be promptly canceled by the Trustee. No Securities will be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 2.08, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee will be disposed of as directed by a
Company Order, provided, however, that the Trustee will not be required to
destroy canceled Securities except in accordance with its established policies.
19
SECTION 2.09. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Except as otherwise provided in accordance with Section
2.01 with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date will be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
(b) Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") will forthwith cease to be
payable to the Holder on the relevant regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company
together with interest thereon (to the extent permitted by law) at the rate of
interest applicable to such Security, at its election in each case, as provided
in clause (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest (and interest thereon, if any) to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
will be fixed in the following manner. The Company will notify the
Trustee in writing of the amount of Defaulted Interest (and interest
thereon, if any) proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company
will deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest (and
interest thereon, if any) or will make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
persons entitled to such Defaulted Interest (and interest thereon, if
any) as in this clause (i) provided. Thereupon the Trustee will fix a
Special Record Date for the payment of such Defaulted Interest (and
interest thereon, if any) which will be not more than 15 calendar days
and not less than 10 calendar days prior to the date of the proposed
payment and not less than 10 calendar days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee will
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, will cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at such Holder's address as it appears in the
Security Register, not less than 10 calendar days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
(and interest thereon, if any) and the Special Record Date therefor
having been so mailed, such Defaulted Interest will be paid to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and will no longer be payable
pursuant to the following clause (ii).
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(ii) The Company may make payment of any Defaulted
Interest (and interest thereon, if any) on the Securities of any series
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to
this clause (ii), such manner of payment shall be deemed practicable by
the Trustee.
(c) Subject to the foregoing provisions of this Section 2.09,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security will carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 2.10. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 2.09) any interest on such Security and for all
other purposes whatsoever, whether or not such Security shall be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
will be affected by notice to the contrary.
SECTION 2.11. COMPUTATION OF INTEREST.
Except as otherwise specified in accordance with Section 2.01
for Securities of any series, interest on the Securities of each series will be
computed on the basis of a 360-day year consisting of 12 30-day months.
SECTION 2.12. CUSIP NUMBERS.
The Company, in issuing Securities of any series, may use
"CUSIP" numbers (if then generally in use) and, if so, the Trustee will use
"CUSIP" numbers in notices of redemption as a convenience to Holders; PROVIDED
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption will
not be affected by any defect in or omission of such numbers. To the extent
applicable, the Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE III. REDEMPTION OF SECURITIES
SECTION 3.01. APPLICABILITY OF ARTICLE.
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Securities of any series which are redeemable before their
Stated Maturity will be redeemable in accordance with their terms and (except as
otherwise specified in accordance with Section 2.01 for Securities of any
series) in accordance with this Article III.
SECTION 3.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
(a) The election of the Company to redeem any Securities will
be evidenced by a Board Resolution. In case of any redemption at the election of
the Company, the Company will, at least 60 calendar days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company will furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction.
(b) Notice of redemption of Securities to be redeemed at the
election of the Company will be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and will
be irrevocable. Notice of redemption will be given by mail, first-class postage
prepaid, not less than 30 or more than 60 calendar days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register. All notices of redemption will identify the Securities to
be redeemed (including the CUSIP numbers thereof, if applicable) and will state
(i) the Redemption Date, (ii) the Redemption Price, (iii) if less than all the
Outstanding Securities of any series are to be redeemed, the identification
(and, in the case of partial redemption of any Securities, the principal
amounts) of the particular Securities to be redeemed, (iv) that on the
Redemption Date the Redemption Price will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date, (v) the place or places where such Securities are
to be surrendered for payment of the Redemption Price, (vi) that the redemption
is for a sinking fund, if such is the case, and (vii) the specific provision of
this Indenture pursuant to which such Securities are to be redeemed.
(c) If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed will be selected not more
than 60 calendar days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee may deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. The Trustee
will 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.
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(d) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities will
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
SECTION 3.03. DEPOSIT OF REDEMPTION PRICE.
At or prior to 10:00 a.m., New York City time, on any
Redemption Date, the Company will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 7.03) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) any accrued interest on, all of the Securities that are to be
redeemed on that date.
SECTION 3.04. SECURITIES PAYABLE ON REDEMPTION DATE.
(a) Notice of redemption having been given as aforesaid, the
Securities so to be redeemed will, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company defaults in the payment of the Redemption Price and accrued
interest) such Securities will cease to accrue interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security will
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that, unless otherwise specified in
accordance with Section 2.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates in accordance with their terms
and the provisions of Section 2.09.
(b) If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium will, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 3.05. SECURITIES REDEEMED IN PART.
Any Security that is to be redeemed only in part will be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company will execute, and
the Trustee will authenticate and make available for delivery to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE IV. SINKING FUNDS
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SECTION 4.01. APPLICABILITY OF ARTICLE.
The provisions of this Article IV will be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified in accordance with Section 2.01 for Securities of such series. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
amount of any sinking fund payment may be subject to reduction as provided in
Section 4.02. Each sinking fund payment with respect to Securities of a
particular series will be applied to the redemption of Securities of such series
as provided for by the terms of Securities of such series.
SECTION 4.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (b) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited. Such
Securities will be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment will be reduced
accordingly.
SECTION 4.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 calendar days prior to each sinking fund
payment date for any series of Securities, the Company will deliver to the
Trustee an Officer's Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, that is to be satisfied by payment of cash and the
portion thereof, if any, that is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 4.02 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 calendar days before
each such sinking fund payment date, the Trustee will select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 3.02(c) and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
3.02(b). Such notice having been duly given, the redemption of such Securities
will be made upon the terms and in the manner stated in Sections 3.04 and 3.05.
ARTICLE V. SECURITY
SECTION 5.01. SECURITY INTEREST.
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(a) In order to secure the payment of the Indenture
Obligations, the Company and the Trustee have entered into the Company Security
Documents. In addition, the Subsidiaries of the Company have guaranteed the
payment of the Indenture Obligations pursuant to the Subsidiaries Guaranty
Agreement. Payment of amounts due by the Subsidiaries under the Subsidiaries
Guaranty Agreement is secured by the Subsidiaries Security Agreement entered
into by each Subsidiary and the Trustee. The Company Security Documents, the
Subsidiaries Guaranty Agreement and the Subsidiaries Security Agreement are
herein referred to collectively as the "Collateral Security Documents." The
Trustee and each Holder, by accepting Securities issued under this Indenture,
acknowledge the binding effect of the Collateral Security Documents as in effect
and in existence on the date hereof; PROVIDED, that in the event of a conflict
between the provisions of any of the Collateral Security Documents and the
provisions of the Trust Indenture Act, the provisions of the Trust Indenture Act
will control.
(b) The Trustee and each Holder, by accepting Securities
issued under this Indenture, acknowledge and agree that, as more fully set forth
in the Subsidiaries Guaranty Agreement and the Subsidiaries Security Agreement,
if any Subsidiary enters into a Warehouse Facility, the rights of any party
lending money to a Subsidiary pursuant to such Warehouse Facility, with respect
to certain assets comprising a portion of the Subsidiaries Collateral will be
senior to those of the Holders of Securities.
(c) The Company Collateral, and subject to subsection (b) of
this Section 5.01, the Subsidiaries Collateral, will be held for the equal and
ratable benefit and security of the Holders of Securities of each series issued
under this Indenture without preference, priority, or distinction of any thereof
over any other by reason of difference in time of issuance, sale, or otherwise,
and for the enforcement of the Indenture Obligations.
SECTION 5.02. RECORDING OF SECURITY INTERESTS; OPINIONS OF COUNSEL.
(a) The Company and each Subsidiary, as applicable, has
executed, delivered, filed, and recorded or, as set forth on Schedule ___, will
execute, deliver, file, and record, all instruments and documents, and has done
or, as set forth on Schedule ___, will do all such acts and other things, at the
Company's or such Subsidiaries' expense, as applicable, as are necessary to
subject the Company Collateral and the Subsidiaries Collateral to the Security
Interest. The Company will, and will cause each Subsidiary, as applicable, to
execute, deliver, file and record all instruments and do all acts and other
things as may be reasonably necessary to perfect, maintain and protect the
Security Interest.
(b) In addition to its obligations under the Collateral
Security Documents, the Company will, and will cause each Subsidiary to, deliver
promptly after the execution and delivery of this Indenture, as contemplated in
Schedule ___, any other instrument of further assurance or amendment or waiver
of any provision of this
25
Indenture or the Collateral Security Documents relating to the lien and security
interest in the Company Collateral and the Subsidiaries Collateral for the
benefit of the Holders of Securities, an Opinion of Counsel in a form acceptable
to the Trustee either (i) stating that, in the opinion of such Counsel, this
Indenture, the Collateral Security Documents, any financing statements, any
continuation statements, and any other instruments of further assurance or
amendment have been properly recorded, registered, and filed with respect to
such types of Company Collateral or Subsidiaries Collateral as to which a lien
and security interest may be perfected by such actions, and that all such other
acts and things have been done, to the extent necessary under applicable law to
perfect and make effective the Security Interest therein and reciting the
elements of such action in reasonable detail, and stating that, as to the
Collateral Security Documents, such recording, registrations and filing, and
such other acts and things are the only recordings, registrations and filings,
or other acts and things, necessary under applicable law to give notice thereof
and that no rerecordings, reregistrations, refilings, or other acts or things,
are necessary under applicable law to maintain such notice, further stating that
all financing statements and continuation statements have been executed and
filed that are necessary under applicable law fully to preserve and protect the
rights of the Holders of Securities and the Trustee hereunder and under the
Collateral Security Documents with respect to types of Company Collateral or
Subsidiary Collateral as to which a lien and security interest may be perfected
by such filing, or (ii) stating that, in the opinion of such counsel, no such
action is necessary under applicable law to perfect or make effective the
Security Interest. Any such opinion may be based upon reasonable assumptions not
inconsistent with the terms of this Indenture or the Collateral Security
Documents as to future matters and as to actions taken and to be taken by the
Company and any Subsidiary or any other Person (other than the Trustee), and may
set forth the reasons underlying such opinion.
(c) In addition to its obligations under the Collateral
Security Documents, the Company will furnish to the Trustee, within thirty
calendar days after ___________ __, in each year beginning with the year 1999,
an Opinion of Counsel (which may be an opinion of internal counsel), dated as of
such date, in a form acceptable to the Trustee, either (i) stating that, in the
opinion of such Counsel, such action has been taken with respect to the
recording, registering, filing, rerecording, reregistering, and refiling of the
Indenture, all supplemental indentures, the Collateral Security Documents,
financing statements, continuation statements, and all other instruments of
further assurance as is necessary under applicable law to maintain the Security
Interest and reciting the elements of such action in reasonable detail, and
stating that all financing statements and continuation statements have been
executed and filed and such other acts and things have been done that are
necessary under applicable law fully to preserve and protect the rights of the
Holders and the Trustee hereunder and under the Collateral Security Documents,
or (ii) stating that, in the opinion of such Counsel, no such action is
necessary under applicable law to maintain the Security Interest. Any such
opinion may be based upon reasonable assumptions not inconsistent with the terms
of this Indenture or the Collateral Security Documents as to future matters and
as to actions taken or to be taken by the Company, any Subsidiary or any
26
other Person (other than the Trustee), and may set forth the reasons underlying
such opinion.
SECTION 5.03. RELEASE OF COLLATERAL.
In addition to its relative obligations under the Collateral
Security Documents, as a condition to any release of Company Collateral or
Subsidiaries Collateral, the Company will, and will cause each Subsidiary to,
deliver to the Trustee the certificate or opinion, if any, required by Section
314(d) of the Trust Indenture Act as to the fair value of any Company Collateral
or Subsidiaries Collateral to be released, dated as of a date not more than 60
calendar days prior to the date of release. Any release of Company Collateral or
Subsidiaries Collateral made in compliance with the provisions of a Company
Security Document or the Subsidiaries Security Agreement, as the case may be,
will be deemed not to impair the Security Interest in contravention of the
provisions of this Indenture.
SECTION 5.04. RELEASE UPON DEFEASANCE OR RELEASE OF COMPANY'S OBLIGATIONS.
In the event that (a) the Company complies with Section 13.01
or (b) the Indenture Obligations have been terminated and there are no other
Indenture Obligations under the Collateral Security Documents that remain
Outstanding, the Trustee will, upon the request of the Company and on behalf of
the Holders of Securities issued hereunder, disclaim and give up any and all
rights it has in or to the Company Collateral and the Subsidiaries Collateral
and any rights it has under the Collateral Security Documents (excluding
unasserted indemnity claims thereunder), and the Trustee will not be deemed to
hold the Security Interest for the benefit of the Holders.
SECTION 5.05. RELIANCE ON OPINION OF COUNSEL.
The Trustee will, before taking any action under this Article V, be entitled to
receive an Opinion of Counsel, stating the legal effect of such action, and that
such action will not be in contravention of the provisions hereof or of the
Collateral Security Documents. Any such opinion will be full protection to the
Trustee for any action taken or omitted to be taken in reliance thereon.
SECTION 5.06. PAYMENT OF EXPENSES.
On demand of the Trustee, the Company forthwith will pay or
satisfactorily provide for all reasonable expenditures incurred by the Trustee
under this Indenture and all such sums will be a Lien upon the Company
Collateral and will be secured thereby.
SECTION 5.07. TRUSTEE'S DUTIES.
27
(a) Subject to Section 5.01 and the provisions of the
Collateral Security Documents, the Trustee will have power to enter into any
agreement or take any action required by the Collateral Security Documents
pursuant to the terms thereof and to institute and to maintain such suits and
proceedings, to the extent permitted under the terms of the Collateral Security
Documents, as it may deem expedient to prevent any impairment of the Company
Collateral or the Subsidiaries Collateral by any acts which may be unlawful or
in violation of the Collateral Security Documents or this Indenture, including
the power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule, or order that may be unconstitutional or otherwise invalid or
if the enforcement of, or compliance with, such enactment, rule or order would
impair the Security Interest in contravention of this Indenture or be
prejudicial to the interests of the Holders of Securities issued hereunder or of
the Trustee.
(b) The powers conferred upon the Trustee by this Article V
are solely to protect the Security Interest and will not impose any duty upon
the Trustee to exercise any such powers except as expressly provided in this
Indenture. The Trustee will be under no duty to the Company or any Subsidiary
whatsoever to make or give any presentment, demand for performance, notice of
nonperformance, protest, notice of protest, notice of dishonor, or other notice
or demand in connection with any Company Collateral or Subsidiaries Collateral
or to take any steps necessary to preserve any rights against prior parties
except as expressly provided in this Indenture. The Trustee will not be liable
to the Company or any Subsidiary for failure to collect or realize upon any or
all of the Company Collateral or the Subsidiaries Collateral, or for any delay
in so doing, nor will the Trustee be under any duty to the Company or any
Subsidiary to take any action, whatsoever with regard thereto. The Trustee has
no duty to the Company or to the Holders to comply with any recording, filing,
or other legal requirements necessary to establish or maintain the validity,
priority, or enforceability of, or the Trustee's rights in or to, any of the
Company Collateral or Subsidiaries Collateral.
ARTICLE VI. DEFEASANCE AND COVENANT DEFEASANCE
SECTION 6.01. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may elect, at its option by Board Resolution at
any time, to have either Section 6.02 or Section 6.03 applied to the Outstanding
Securities of any series designated pursuant to Section 2.01 as being defeasible
pursuant to this Article VI (hereinafter called "Defeasible Series"), upon
compliance with the conditions set forth below in this Article VI, PROVIDED that
Section 6.02 will not apply to any series of Securities that is convertible into
Common Stock pursuant to Section 2.01(b)(xvi) or convertible into or
exchangeable for any other securities pursuant to Section 2.01(b)(xvii).
SECTION 6.02. DEFEASANCE AND DISCHARGE.
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Upon the Company's exercise of the option provided in Section
6.01 to have this Section 6.02 applied to the Outstanding Securities of any
Defeasible Series and subject to the proviso to Section 6.01, the Company will
be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section 6.02 on and
after the date the conditions set forth in Section 6.04 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company will be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, will execute proper instruments acknowledging the same),
subject to the following which will survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of Securities of such series to
receive, solely from the trust fund described in Section 6.04 and as more fully
set forth in Section 6.04, payments in respect of the principal of and any
premium and interest on such Securities of such series when payments are due,
(b) the Company's obligations with respect to the Securities of such series
under Sections 2.05, 2.06, 2.07, 7.02, 7.03, and 11.06, (c) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder, and (d) this Article
VI. Subject to compliance with this Article VI, the Company may exercise its
option provided in Section 6.01 to have this Section 6.02 applied to the
Outstanding Securities of any Defeasible Series notwithstanding the prior
exercise of its option provided in Section 6.01 to have Section 6.03 applied to
the Outstanding Securities of such series.
SECTION 6.03. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section
6.01 to have this Section 6.03 applied to the Outstanding Securities of any
Defeasible Series, (a) the Company will be released from its obligations under
Sections 7.04 through 7.06, inclusive, Section 12.01, and such provisions of any
indenture supplemental hereto as may be specified in such indenture supplemental
hereto, and (b) the occurrence of any event specified in Sections 9.01(a)(iii),
9.01(a)(iv) (with respect to any of Sections 7.04 through 7.06, inclusive,
Section 12.01, and such provisions of any Supplemental Indenture as may be
specified in such Supplemental Indenture), Sections 9.01(a)(v), 9.01(a)(vi), and
9.01(a)(ix) will be deemed not to be or result in an Event of Default, in each
case with respect to the Outstanding Securities of such series as provided in
this Section on and after the date the conditions set forth in Section 6.04 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that the Company may omit to comply with and will have
no liability in respect of any term, condition, or limitation set forth in any
such specified Section or provision (to the extent so specified in the case of
Section 9.01(a)(iv)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or provision or by reason of any reference
in any such Section or provision to any other provision herein or in any other
document, but the remainder of this Indenture and the Securities of such series
will be unaffected thereby.
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SECTION 6.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following will be the conditions to application of either
Section 6.02 or Section 6.03 to the Outstanding Securities of any Defeasible
Series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 10.08 and agrees to comply with the
provisions of this Article VI applicable to it) as trust funds in trust for the
benefit of the Holders of Outstanding Securities of such series (i) money in an
amount, or (ii) U.S. Government Obligations that through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will
provide, without reinvestment, not later than one day before the due date of any
payment, money in an amount, or (iii) a combination thereof, in each case
sufficient to pay and discharge, and which will be applied by the Trustee (or
any such other qualifying trustee) to pay and discharge, the principal of and
any premium and interest on the Securities of such series on the respective
Stated Maturities or on any earlier date or dates on which the Securities of
such series shall be subject to redemption and the Company shall have given the
Trustee irrevocable instructions satisfactory to the Trustee to give notice to
the Holders of the redemption of the Securities of such series, all in
accordance with the terms of this Indenture and the Securities of such series.
(b) In the case of an election under Section 6.02, the Company
shall have delivered to the Trustee an Opinion of Counsel (from a counsel who
shall not be an employee of the Company) to the effect that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize gain or loss for federal income tax
purposes as a result of the deposit, Defeasance, and discharge to be effected
with respect to the Securities of such series and will be subject to federal
income tax on the same amount, in the same manner, and at the same times as
would be the case if such deposit, Defeasance, and discharge were not to occur.
(c) In the case of an election under Section 6.03, the Company
shall have delivered to the Trustee an Opinion of Counsel (from a counsel who
shall not be an employee of the Company) to the effect that the Holders of the
Outstanding Securities of such series will not recognize gain or loss for
federal income tax purposes as a result of the deposit and Covenant Defeasance
to be effected with respect to the Securities of such series and will be subject
to federal income tax on the same amount, in the same manner, and at the same
times as would be the case if such deposit and Covenant Defeasance were not to
occur.
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(d) The Company shall have delivered to the Trustee an Opinion
of Counsel (from a counsel who shall not be an employee of the Company) stating
that the defeasance trust does not violate the Investment Company Act of 1940.
(e) The Company shall have delivered to the Trustee the
opinion of a nationally recognized independent public accounting firm certifying
the sufficiency of the amount of the moneys, U.S. Government Obligations, or a
combination thereof, placed on deposit to pay, without regard to any
reinvestment, the principal of and any premium and interest on the Securities on
the Stated Maturity thereof or on any earlier date on which the Securities shall
be subject to redemption as to which the Company has given irrevocable
instructions satisfactory to the Trustee to give notice to the Holders of the
redemption of the Securities of such series, all in accordance with the terms of
this Indenture and the Securities of such series.
(f) The Company shall have delivered to the Trustee an
Officer's Certificate (i) stating that the deposit was not made by the Company
with the intent of preferring the holders of the Securities over the other
creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others, and (ii) to the effect that the
Securities of such series, if then listed on any securities exchange, will not
be delisted solely as a result of such deposit.
(g) No Default or Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of Default
or any such event specified in Sections 9.01(a)(vii) and (viii), at any time on
or prior to the 124th calendar day after the date of such deposit (it being
understood that this condition will not be deemed satisfied until after such
124th calendar day).
(h) Such Defeasance or Covenant Defeasance will not cause the
Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such Act).
(i) Such Defeasance or Covenant Defeasance will 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 it is bound.
(j) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
SECTION 6.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
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(a) Subject to the provisions of Section 7.03(e), all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section
6.05 and Section 6.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 6.04 in respect of the
Securities of any Defeasible Series will be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
(b) The Company will pay and indemnify the Trustee against any
tax, fee, or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 6.04 or the principal and interest
received in respect thereof other than any such tax, fee, or other charge that
by law is for the account of the Holders of Outstanding Securities.
(c) Notwithstanding anything in this Article VI to the
contrary, the Trustee will deliver or pay to the Company from time to time upon
a Company Request any money or U.S. Government Obligations held by it as
provided in Section 6.04 with respect to Securities of any Defeasible Series
that are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with respect
to the Securities of such series.
SECTION 6.06. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article VI with respect to the Securities of any
series 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 of such series
will be revived and reinstated as though no deposit had occurred pursuant to
this Article VI with respect to Securities of such series until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 6.05 with respect to Securities of such series in accordance with
this Article VI; PROVIDED, HOWEVER, that if the Company makes any payment of
principal of or any premium or interest on any Security of such series following
the reinstatement of its obligations, the Company will be subrogated to the
rights of the Holders of Securities of such series to receive such payment from
the money so held in trust.
ARTICLE VII. PARTICULAR COVENANTS OF THE COMPANY
SECTION 7.01. PAYMENT OF PRINCIPAL, PREMIUM, AND INTEREST ON SECURITIES.
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The Company, for the benefit of each series of Securities,
will duly and punctually pay the principal of and any premium and interest on
the Securities of that series in accordance with the terms of the Securities and
this Indenture.
SECTION 7.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices, and demands may be made or served at
the Corporate Trust Office, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission will in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 7.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
(a) If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due
date of the principal of or any premium or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
(b) Whenever the Company shall have one or more Paying Agents
for any series of Securities, it will, prior to each due date of the principal
of or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
(c) The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent will agree with the Trustee, subject to
the provisions of this
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Section 7.03, that such Paying Agent will (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
(d) The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent will be released from all further liability with
respect to such money.
(e) 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 or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, or interest has become due and payable
will be paid to the Company upon a Company Request (or, if then held by the
Company, will be discharged from such trust); and the Holder of such Security
will 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, will 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 a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which will not
be less than 30 calendar days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 7.04. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary of
the Company or upon the income, profits, or property of the Company or any
Subsidiary of the Company, and (b) all lawful claims for labor, materials and
supplies, in each case which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary of the Company and would have a
Material Adverse Effect; PROVIDED, HOWEVER, that (x) the Company will 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 (y) any failure to
pay any such tax, assessment, charge, or claim shall not constitute a
34
breach of this Section 7.04 if such failure (i) was not willful and (ii) does
not and will not result in any Material Adverse Effect.
SECTION 7.05. EXISTENCE.
Subject to Article XII, the Company will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, rights (charter and statutory),
and franchises; PROVIDED, HOWEVER, that, except with respect to the preservation
of the Company's existence, nothing in this Section 7.05 will (i) require the
Company to take any action that it determines in good faith to be contrary to
its best interests, so long as the failure to take such action will not have a
Material Adverse Effect, or (ii) prevent the Company from taking any action that
it determines in good faith to be in its best interests, so long as the taking
of such action will not have a Material Adverse Effect.
SECTION 7.06. COMPLIANCE WITH LAWS.
The Company will, and will cause each of its Subsidiaries to,
comply with all applicable federal, state, local, or foreign laws, rules,
regulations, or ordinances, including without limitation such laws, rules,
regulations, or ordinances relating to pension, environmental, employee, and tax
matters, to the extent that, in the aggregate, the failure so to comply would
have a Material Adverse Effect.
SECTION 7.07. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 calendar
days after the end of each fiscal year of the Company ending after the date
hereof, an officer's certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company
stating whether or not to the knowledge of such person after due inquiry the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company is in
default, specifying all such defaults and the nature and status thereof of which
such person may have such knowledge.
SECTION 7.08. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision, or condition set forth in Sections 7.04 and 7.06, and such
provisions of any Supplemental Indenture as may be specified in such
Supplemental Indenture, with respect to the Securities of any series if the
Holders of a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision, or condition,
but no such waiver will extend to or affect such term, provision, or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision, or condition will remain in full force and
effect.
35
SECTION 7.09. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
The Company will, to the extent applicable, file with the
Trustee promptly at the end of each calendar year (i) a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year
and (ii) such other specific information relating to such original issue
discount as may then be required under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE VIII. SECURITIES HOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 8.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee (a) semi-annually, not more than 15 calendar days after the applicable
Regular Record Date, a list for each series of Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Securities of such series as of such Regular Record Date and (b) at such other
times as the Trustee may request in writing, within 30 calendar days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 calendar days prior to the time such list is
furnished; EXCLUDING from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
SECTION 8.02. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 8.01 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 8.01 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, will be
as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them will be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 8.03. REPORTS BY TRUSTEE.
36
The Trustee will transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act or any rule or regulation of the Commission promulgated
pursuant thereto at the times and in the manner provided therein. If required by
Section 313(a) of the Trust Indenture Act, the Trustee will, within sixty days
after each May 15 following the date of this Indenture, deliver to Holders a
brief report, dated as of such May 15, which complies with the provisions of
such Section 313(a). A copy of each such report will, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission, and with the Company. The
Company will promptly notify the Trustee when any Securities are listed on any
stock exchange.
SECTION 8.04. REPORTS BY COMPANY.
The Company will file with the Trustee and the Commission, and
transmit to Holders, such information, documents, and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act or any
rule or regulation of the Commission promulgated pursuant thereto at the times
and in the manner provided therein; PROVIDED that any such information,
documents, or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act will be filed with the Trustee within 15
calendar days after the same is so required to be filed with the Commission.
Delivery of such reports, information, and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such will 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 Officer's Certificates).
ARTICLE IX. DEFAULT
SECTION 9.01. EVENT OF DEFAULT.
(a) "Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it may be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree, or order
of any court or any order, rule, or regulation of any administrative or
governmental body):
(i) default in the payment of any interest on any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 10 calendar days;
(ii) default in the payment of principal of (or premium,
if any, on) any Security of that series when it becomes due and
payable, whether by redemption, repurchase, or otherwise;
37
(iii) default in the making of any sinking fund payment
when and as due by the terms of a Security of that series;
(iv) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty, a default in the performance or breach of which
is elsewhere in this Section 9.01 specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of one
or more series of Securities other than that series), and continuance
of such default or breach for a period of 30 calendar days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder;
(v) any default in the payment at maturity of principal
of any Indebtedness of the Company or any Subsidiary of the Company in
an aggregate principal amount of $10.0 million or more, which, in any
such case, (A) continues beyond any period of grace provided with
respect thereto and (B) results in such Indebtedness becoming due prior
to its stated maturity or occurs at the final maturity of such
Indebtedness; PROVIDED, HOWEVER, that, subject to the provisions of
Section 10.01 and 9.08, the Trustee will not be deemed to have
knowledge of such nonpayment or other default unless either (1) a
Responsible Officer of the Trustee has actual knowledge of nonpayment
or other default or (2) the Trustee has received written notice thereof
from the Company, from any Holder, from the holder of any such
Indebtedness or from the trustee under the agreement or instrument
relating to such Indebtedness;
(vi) the entry of one or more judgments or orders for
the payment of money against the Company, which judgments and orders
create a liability of $25.0 million or more in excess of insured
amounts and have not been stayed (by appeal or otherwise), vacated,
discharged, or otherwise satisfied within 60 calendar days of the entry
of such judgments and orders;
(vii) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
or any Subsidiary in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization, or
other similar law or (B) a decree or order adjudging the Company or any
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment, or
composition of or in respect of the Company or any Subsidiary under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator, or other similar official
of the Company or any Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such
other
38
decree or order unstayed and in effect for a period of 60 calendar
days;
(viii) the commencement by the Company or any Subsidiary
of a voluntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization, or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company or any Subsidiary in an involuntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization, or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief with respect to the Company under any applicable federal or
state bankruptcy, insolvency, reorganization, or other similar law, or
the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator, or other similar official of the Company or any
Subsidiary or of any substantial part of its property pursuant to any
such law, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company or any Subsidiary in furtherance of any such
action;
(ix) default in the performance, or breach, of any
covenant or warranty of the Company or any Subsidiary, and the
continuance of such default or breach for a period of time that extends
beyond any applicable grace or cure period provided, in any Collateral
Security Document;
(x) the Subsidiaries Guaranty Agreement or any future
guaranty agreement entered into by a Subsidiary of the Company acquired
or created after the date hereof shall be held in a judicial proceeding
to be unenforceable or invalid or shall cease for any reason to be in
full force and effect or any Subsidiary guarantor, or any Person acting
on behalf of any Subsidiary guarantor shall deny or disaffirm its
obligations under its subsidiary guarantee agreement; or
(xi) any other Event of Default provided in an indenture
supplemental hereto with respect to Securities of the series created
thereunder.
(b) If an Event of Default (other than an Event of Default
arising under Section 9.01(a)(vii) or (viii)) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
39
by Holders), and upon any such declaration such principal amount (or specified
amount) will become immediately due and payable. If an Event of Default under
Section 9.01(a)(vii) or (viii) occurs, then the principal of, premium, if any,
and accrued interest on the Securities shall become immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
(c) At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article IX provided, the Holders of a majority in principal
amount of the outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay (A) all overdue interest on all Securities of that series, (B)
the principal of (and premium, if any, on) any Securities of that series which
have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities, and (D)
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements, and advances of the Trustee and its
agents and counsel and (ii) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities of that
series that has become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 9.01(d). No such rescission will affect
any subsequent default or impair any right consequent thereon.
(d) The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default (i) in the payment of the
principal of or any premium or interest on any Security of such series or (ii)
in respect of a covenant or provision hereof which under Article XI cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected. Upon any such waiver, such default will cease
to exist, and any Event of Default arising therefrom will be deemed to have been
cured, for every purpose of this Indenture, but no such waiver will extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 9.02. COVENANT OF COMPANY TO PAY TO TRUSTEE WHOLE AMOUNT DUE ON
SECURITIES ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL; SUITS
FOR ENFORCEMENT BY TRUSTEE.
(a) The Company covenants that if (i) default is made in the
payment of any interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 calendar days or (ii)
default is made in the payment of the principal of (or premium, if any, on) any
Security when it becomes due and payable, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities
40
for principal and any premium and interest and, to the extent that payment of
such interest will be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor in
such Securities, and, in addition thereto, such further amount as will be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee and
its agents and counsel.
(b) If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual, including without limitation actions with respect to the Company
Collateral and the Subsidiaries Collateral, to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
(c) In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its creditors, the
Trustee will be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee will be authorized to collect and receive
any money or other property payable or deliverable on any such claims and to
distribute the same, and any custodian, receiver, assignee, trustee, liquidator,
sequestrator, or other similar official 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 consents to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements, and advances of the Trustee and its
agents and counsel, and any other amounts due the Trustee under Section 10.06.
(d) No provision of this Indenture will 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;
PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
(e) All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee will be
brought in its own name as trustee of an express trust, and any recovery of
judgment will, after provision for the payment of the reasonable compensation,
expenses, disbursements, and advances of the Trustee and its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
41
SECTION 9.03. APPLICATION OF MONEY COLLECTED BY TRUSTEE.
Any money collected by the Trustee pursuant to this Article IX
will be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 10.06; and
SECOND: To the payment of the amounts then due and unpaid for
interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind (except as provided
by any subordination provisions provided in an indenture
supplemental with respect to the securities of the series
created thereunder pursuant to Section 2.01(b)(xviii)),
according to the amounts due and payable on such Securities
for interest thereon.
THIRD: To the payment of the amounts then due and unpaid for
principal of and any premium on the Securities in respect of
which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind
(except as provided by any subordination provisions provided
in an indenture supplemental with respect to the securities of
the series created thereunder pursuant to Section
2.01(b)(xviii)), according to the amounts due and payable on
such Securities for principal and any premium, respectively.
SECTION 9.04. LIMITATION ON SUITS BY HOLDERS OF SECURITIES.
No Holder of any Security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (a) such Xxxxxx has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series, (b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder, (c) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses, and liabilities to be
incurred in compliance with such request, (d) the Trustee for 60 calendar days
after its receipt of such notice, request, and offer of indemnity has failed to
institute any such proceeding, and (e) no direction inconsistent with such
written request has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding Securities of that
series, it being understood and intended that no one or more of such Holders
will 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 of such Holders, or to obtain or to seek to obtain priority or preference
over
42
any other of such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all of
such Holders.
SECTION 9.05. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION IN EXERCISE OF
RIGHTS NOT A WAIVER OF EVENT OF DEFAULT.
(a) Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost, or stolen Securities in
the last paragraph of Section 2.07, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy will, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, will not
prevent the concurrent assertion or employment of any other appropriate right or
remedy.
(b) No delay or omission of the Trustee or of any Holder of
any Securities to exercise any right or remedy accruing upon any Event of
Default will impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article IX or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 9.06. RIGHTS OF HOLDERS OF MAJORITY IN PRINCIPAL AMOUNT OF OUTSTANDING
SECURITIES TO DIRECT TRUSTEE.
The Holders of a majority in principal amount of the
Outstanding Securities of any series will have the right to direct the Trustee
with respect to the time, method, and place of conducting any proceeding for any
remedy available to the Trustee and the exercise of any trust or power conferred
on the Trustee, in each case with respect to the Securities of such series,
PROVIDED that (a) such direction will not be in conflict with any rule of law or
with this Indenture and (b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 9.07. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN SUITS UNDER
THE INDENTURE OR AGAINST THE TRUSTEE.
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,
suffered, or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs, including legal fees and expenses, against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; PROVIDED that
neither this Section 9.07 nor the Trust Indenture Act will be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Trustee or by the Company.
SECTION 9.08. NOTICE OF DEFAULTS.
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If a Default occurs hereunder with respect to Securities of
any series, the Trustee will give the Holders of Securities of such series
notice of such Default actually known to it as and to the extent provided by the
Trust Indenture Act; PROVIDED, HOWEVER, that in the case of any Default of the
character specified in Section 9.01(a)(iv) with respect to Securities of such
series no such notice to Holders will be given until at least 30 calendar days
after the occurrence thereof. The Company will give the Trustee notice of any
uncured Event of Default within 10 days after any Responsible Officer of the
Company becomes aware of or receives actual notice of such Event of Default.
SECTION 9.09. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM, AND
INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security will have the right, which is absolute and unconditional,
to receive payment of the principal of, premium, if any, and (subject to Section
2.09) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights may not
be impaired without the consent of such Holder.
SECTION 9.10. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee, and the Holders will
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders will continue
as though no such proceeding had been instituted.
SECTION 9.11. TRUSTEE MAY FILE PROOFS OF CLAIMS.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceeding relative to the Company or the
Subsidiaries (or any other obligor upon the Securities), their creditors or
their property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claim and to
distribute the same, and any custodian in any such judicial proceedings 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 hereunder. 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
44
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.
45
ARTICLE X. CONCERNING THE TRUSTEE
SECTION 10.01. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee will be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture will require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee will be subject to the provisions of this Section 10.01.
SECTION 10.02. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 10.01: (a) the Trustee
may conclusively rely and will be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness, 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 or direction of the Company mentioned herein will be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
will be sufficiently evidenced by a Board Resolution; (c) whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering, or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officer's
Certificate; (d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel will be full and complete
authorization and protection in respect of any action taken, suffered, or
omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee
will be under no obligation to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses, and liabilities which might
be incurred by it in compliance with such request or direction; (f) the Trustee
will not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it will be entitled to examine the books, records, and premises
of the Company, personally or by agent or attorney; (g) the Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee will not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it
46
hereunder; (h) the Trustee will not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture, unless it shall be proved that the Trustee acted, or failed to
act, in a negligent manner; and (i) the Trustee will 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 or
circumstance which is in fact such a Default or Event of Default is received by
the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities (or the applicable series thereof) and this Indenture.
SECTION 10.03. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, may be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent will not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 10.04. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar, or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 10.07 and 10.12, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar, or such other agent.
SECTION 10.05. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required herein or by law. The
Trustee will be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
SECTION 10.06. COMPENSATION AND REIMBURSEMENT.
(a) The Company will (i) pay to the Trustee from time to time
such compensation as shall be agreed to in writing between the Company and the
Trustee for all services rendered by it hereunder (which compensation will not
be limited to any provision of law in regard to the compensation of a trustee of
an express trust); (ii) except as otherwise expressly provided herein, reimburse
the Trustee upon its request for all reasonable expenses, disbursements, and
advances incurred or made by the Trustee in accordance with provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of agents and counsel), except any such expense, disbursement, or
advance as may be attributable to its negligence or bad
47
faith; and (iii) indemnify the Trustee and any predecessor Trustee for, and hold
them harmless against, any and all losses, liabilities, damages, claims and
expenses, including taxes (other than taxes based on the income of the Trustee
or predecessor Trustee and other taxes relating to the Trustee's or predecessor
Trustee's overall business and operations) incurred without negligence or bad
faith on its part arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
(b) The Trustee will have a lien prior to the Securities as to
all property and funds held by it hereunder for any amount owed to it or any
predecessor Trustee pursuant to this Section 10.06, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
(c) When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 9.01(a)(vii) or Section
9.01(a)(viii), such expenses (including the reasonable fees and expenses of its
counsel) and the Trustee's compensation for such services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency, or other similar law.
(d) The provisions of this Section 10.06 will survive the
termination of this Indenture.
SECTION 10.07. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or acquires a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee will either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 10.08. CORPORATE TRUSTEE REQUIRED ELIGIBILITY.
There will at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of which will be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $100,000,000 and its Corporate Trust
Office or principal office in New York City, or any other major city in the
United States that is acceptable to the Company. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of a supervising or examining state or federal authority, then for the purposes
of this Section 10.08, the combined capital and surplus of such Person 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 10.08, it will resign
immediately in the manner and with the effect hereinafter specified in this
Article X.
SECTION 10.09. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
48
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article X will become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 10.10.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 10.10 shall not have been delivered to the Trustee within 30 calendar
days after the giving 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 with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 10.10 shall not have been delivered to the Trustee within 30 calendar
days after the giving 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 with respect to the Securities of such
series.
(d) If, at any time, (i) the Trustee fails to comply with
Section 10.07 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, (ii) the
Trustee ceases to be eligible under Section 10.08 and fails to resign after
written request therefor by the Company or by any such Holder, or (iii) the
Trustee becomes incapable of acting or is adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property is appointed or any public officer
takes 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,
(A) the Company by a Board Resolution may remove the Trustee with respect to all
Securities or (B) subject to Section 9.07, any Holder who has been a bona fide
Holder of a Security 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 with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee resigns, is removed, or becomes incapable
of acting, or if a vacancy occurs in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company by a Board
Resolution will promptly appoint a successor Trustee or Trustees with respect to
the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there will be only one Trustee with
respect to the Securities of any particular series) and will comply with the
applicable requirements of Section 10.10. If, within one year after such
resignation, removal, or incapability or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series is appointed by
Act of the
49
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed will, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 10.10, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 10.10, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company will give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all holders of Securities of such series in the manner provided in Section
14.03. Each notice will include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
SECTION 10.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed will execute, acknowledge, and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee will become effective and such
successor Trustee, without any further act, deed, or conveyance, will become
vested with all the rights, powers, trusts, and duties of the retiring Trustee,
but, on the request of the Company or the successor Trustee, such retiring
Trustee will, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers, and duties of the
retiring Trustee and will duly assign, transfer, and deliver to such Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee, and each successor Trustee with respect to the
Securities of one or more series will execute and deliver an indenture
supplemental hereto wherein such successor Trustee will accept such appointment
and which (i) will contain such provisions as may be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (ii) if the retiring Trustee is not retiring with respect to
all Securities, will contain such provisions as may be deemed necessary or
desirable to confirm that all the rights, powers, trusts, and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring will continue to be vested in the
retiring Trustee, and (iii) will add to or change any of the provisions of this
50
Indenture as may be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture will constitute such Trustees
co-trustees of the same trust and that each such Trustee will be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustees and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
will become effective to the extent provided therein and each such successor
Trustee, without any further act, deed, or conveyance, will become vested with
all the rights, powers, trusts, and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but on request of the Company or any successor
Trustee, such retiring Trustee will duly assign, transfer, and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
will execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all applicable rights, powers, and trusts
referred to in the preceding paragraphs of this Section 10.10.
(d) No successor Trustee will accept its appointment unless at
the time of such acceptance such successor Trustee is qualified and eligible
under this Article X.
SECTION 10.11. MERGER, CONVERSION, CONSOLIDATION, OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which the Trustee may be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, will be the successor of the Trustee hereunder,
provided such corporation is otherwise qualified and eligible under this Article
X, without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion, or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 10.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee is or becomes a creditor of the
Company (or any other obligor upon the Securities), the Trustee will be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
51
SECTION 10.13. APPOINTMENT OF AUTHENTICATING AGENT.
(a) The Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which will be authorized to act
on behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer, or partial
redemption thereof or pursuant to Section 2.07, and Securities so authenticated
will be entitled to the benefits of this Indenture and will be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference will be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof, or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 10.13,
the combined capital and surplus of such Authenticating Agent will 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 an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 10.13, such
Authenticating Agent will resign immediately in the manner and with the effect
specified in this Section 10.13.
(b) Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion, or consolidation to which such
Authenticating Agent may be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, will
continue to be an Authenticating Agent, provided such corporation is otherwise
eligible under this Section 10.13, without the execution or filing of any paper
or any further act on the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions this Section 10.13, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and will mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment
52
hereunder will become vested with all the rights, powers, and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent will be appointed unless
eligible under the provisions of this Section 10.13.
(d) The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section
10.13, and the Trustee will be entitled to be reimbursed for such payments,
subject to the provisions of Section 10.06.
(e) If an appointment with respect to one or more series of
Securities is made pursuant to this Section 10.13, the Securities of such series
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative form of certificate of authentication in the
following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
----------------------------------
as Trustee
By:
----------------------------------
As Authenticating Agent
By:
----------------------------------
Authorized Signatory
ARTICLE XI. SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS
SECTION 11.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE ENTERED INTO
WITHOUT CONSENT OF HOLDERS.
Without the consent of or notice to any Holders, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
herein and in the Securities, all to the extent otherwise permitted hereunder;
53
(b) to make any change to the provisions of this Indenture
that would provide any additional rights or benefits to the Holders of the
Securities;
(c) to add to or change any of the provisions of this
Indenture to such extent as may be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form;
(d) to add to, change, or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, PROVIDED that any
such addition, change, or elimination (i) will neither (A) apply to any Security
of any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) will become
effective only when there is no such Security Outstanding;
(e) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 2.02;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as may be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
10.10; or
(g) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture, PROVIDED that such action pursuant to this clause
(g) will not adversely affect the interests of the Holders of Securities of any
series in any material respect.
SECTION 11.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF AT LEAST A
MAJORITY IN PRINCIPAL AMOUNT OF OUTSTANDING SECURITIES.
(a) With the consent of the Holders of a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture will, without the consent of the Holder of
each Outstanding Security affected thereby:
54
(i) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Sections 9.01(b), or change any Place of Payment where, or
the coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, or the consent
of the Holders of which is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture; or
(iii) modify any of the provisions of this Section
11.02, Section 9.01(d) or Section 7.08, except to increase the
percentage in principal amount of Holders required under any such
Section or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, PROVIDED, HOWEVER, that this
clause (c) will not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section 11.02 and Section 7.08, or the deletion of this
proviso, in accordance with the requirements of Sections 10.10 and
11.01(f).
(b) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, will be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
(c) It will not be necessary for any Act of Holders under this
Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it will be sufficient if such Act approves the substance thereof.
SECTION 11.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article XI or the modifications
thereby of the trusts created by this Indenture, the Trustee will be entitled to
receive, and (subject to Section 10.01) will be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but will not be
obligated to, enter into any such
55
supplemental indenture which affects the Trustee's own rights, duties, or
immunities under this Indenture or otherwise.
SECTION 11.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article XI, this Indenture will be modified in accordance therewith, and such
supplemental indenture will form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder will be bound thereby.
SECTION 11.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
XI will conform to the requirements of the Trust Indenture Act.
SECTION 11.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article XI may, and
will if required by the Trustee, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
ARTICLE XII. CONSOLIDATION, MERGER, SALE, OR TRANSFER
SECTION 12.01. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES PERMITTED ONLY ON
CERTAIN TERMS.
(a) The Company shall not consolidate with or merge with or
into any other Person, or transfer (by lease, assignment, sale, or otherwise)
its properties and assets substantially as an entirety to another Person unless
(i) either (A) the Company shall be the continuing or surviving Person in such a
consolidation or merger or (B) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or to which the
properties and assets of the Company are transferred substantially as an
entirety (the Company or such other Person being referred to as the "Surviving
Person") shall be a corporation organized and validly existing under the laws of
the United States, any state thereof, or the District of Columbia, and shall
expressly assume, by an indenture supplement, all the obligations of the Company
under the Securities and the Indenture, (ii) immediately after the transaction
and the incurrence or anticipated incurrence of any Indebtedness to be incurred
in connection therewith, no Default will exist, and (iii) an Officer's
Certificate has been delivered to the Trustee to the effect that the conditions
set forth in the preceding clauses (i) and (ii) have been satisfied and an
Opinion of Counsel (from a
56
counsel who shall not be an employee of the Company) has been delivered to the
Trustee to the effect that the conditions set forth in the preceding clause (i)
have been satisfied.
(b) The Surviving Person will succeed to and be substituted
for the Company with the same effect as if it had been named herein as a party
hereto, and thereafter the predecessor corporation (if it is not the Surviving
Person) will be relieved of all obligations and covenants under this Indenture
and the Securities.
ARTICLE XIII. SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture will upon a Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense the Company, will execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when: (a) either (i) all Securities theretofore
authenticated and delivered (other than (A) Securities which have been
destroyed, lost, or stolen and which have been replaced or paid as provided in
Section 2.07 and (B) Securities for the payment of which money has theretofore
been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in
Section 7.03) have been delivered to the Trustee for cancellation or (ii) all
such Securities not theretofore delivered to the Trustee for cancellation (A)
have become due and payable, (B) will become due and payable at their Stated
Maturity within one year, or (C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and
the Company, in the case of clause (A), (B), or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be; (b) the Company has paid or caused to be
paid all other sums payable hereunder by the Company; and (c) the Company has
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 10.06, the obligations
of the Company to any Authenticating Agent under Section 10.13, and, if money
shall have been deposited with the Trustee pursuant to subclause (ii) of clause
(a) of this Section 13.01, the obligations of the Trustee under Sections 7.03(e)
and 13.02, will survive.
57
SECTION 13.02. APPLICATION OF TRUST MONEY.
Subject to provisions of Section 7.03(e), all money deposited
with the Trustee pursuant to Section 13.01 will be held in trust and applied by
it, in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE XIV. MISCELLANEOUS PROVISIONS
SECTION 14.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE.
All the covenants, stipulations, promises, and agreements in
this Indenture contained by or on behalf of the Company will bind its successors
and assigns, whether so expressed or not.
SECTION 14.02. SERVICE OF REQUIRED NOTICE TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver, Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with (a) the Trustee
by any Holder or by the Company will, upon receipt, be sufficient for every
purpose hereunder if made, given, furnished, or filed in a writing received by
the Trustee at its Corporate Trust Office (addressed to the attention of:
Corporate Trust Trustee Administration) or (b) the Company by the Trustee or by
any Holder will, upon receipt, be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished, or filed in a
writing received by the Company at its principal executive offices (addressed to
the attention of both its Chief Financial Officer and its General Counsel).
SECTION 14.03. SERVICE OF REQUIRED NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice will be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. 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 will 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 will be the equivalent of such notice. Waivers of notice by Holders
will be filed with the Trustee, but such filing will 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 regular mail service
58
or by reason of any other cause it will be impracticable to give such notice by
mail, then such notification as may be made with the approval of the Trustee
will constitute a sufficient notification for every purpose hereunder.
SECTION 14.04. INDENTURE AND SECURITIES TO BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
This Indenture and the Securities will be deemed to be a
contract made under the laws of the State of New York, and for all purposes will
be construed in accordance with the laws of said State without giving effect to
principles of conflict of laws of such State.
SECTION 14.05. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the Company
will furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion will be given in
the form of an Officer's Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and will comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
SECTION 14.06. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Where any
Person is required to make, give, or execute two or more applications, requests,
consents, certificates, statements, opinions, or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 14.07. PAYMENTS DUE ON NON-BUSINESS DAYS.
In any case where any Interest Payment Date, Redemption Date,
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision will apply in lieu of this Section
14.07)) payment of interest or principal (and premium, if any) need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and
no interest shall accrue for the intervening period.
59
SECTION 14.08. PROVISIONS REQUIRED BY TRUST INDENTURE ACT TO CONTROL.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed on any Person by Sections 310 through 317 of
the Trust Indenture Act (including provisions automatically deemed included in
this Indenture pursuant to the Trust Indenture Act unless this Indenture
provides that such provisions are excluded), which are deemed to be a part of
and govern this Indenture, whether or not contained herein, then such imposed
duties will control.
SECTION 14.09. INVALIDITY OF PARTICULAR PROVISIONS.
In case any one or more of the provisions contained in this
Indenture or in the Securities is for any reason held to be invalid, illegal, or
unenforceable in any respect, such the validity, illegality, or enforceability
will not affect any other provision of this Indenture or of the Securities, but
this Indenture and such Securities will be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 14.10. INDENTURE MAY BE EXECUTED IN COUNTERPARTS.
This instrument may be executed in any number of counterparts,
each of which will be an original, but such counterparts will together
constitute but one and the same instrument.
SECTION 14.11. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver, or other action provided or permitted by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action will become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent will be sufficient for any
purpose of this Indenture and (subject to Section 10.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section
14.11.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit will also constitute sufficient proof of
his authority. The fact and date of the execution
60
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities will be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver, or other Act of the Holder of any Security will bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange thereof or in lieu thereof
in respect of anything done, omitted, or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may, in the circumstances permitted by the
Trust Indenture Act, set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver,
or other action provided or permitted by this Indenture to be given or taken by
Holders of Securities of such series. With regard to any record date set
pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date (or their duly appointed agents), and only
such Persons, will be entitled to give or take the relevant action, whether or
not such Holders remain Holders after such record date. With regard to any
action that may be given or taken hereunder only by Holders of a requisite
principal amount of Outstanding Securities of any series (or their duly
appointed agents) and for which a record date is set pursuant to this paragraph,
the Company may, at its option, set an expiration date after which no such
action purported to be given or taken by any Holder will be effective hereunder
unless given or taken on or prior to such expiration date by Holders of the
requisite principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents). On or prior to any expiration date
set pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such date to any later date. Nothing in this paragraph will
prevent any Holder (or any duly appointed agent thereof) from giving or taking,
after any such expiration date, any action identical to, or, at any time,
contrary to or different from, the action or purported action to which such
expiration date relates, in which event the Company may set a record date in
respect thereof pursuant to this paragraph. Nothing in this Section 14.11(e)
will be construed to render ineffective any action taken at any time by the
Holders (or their duly appointed agents) of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is so
taken. Notwithstanding the foregoing or the Trust Indenture Act, the Company
will not set a record date for, and the provisions of this Section 14.11(e) will
not apply with respect to, any notice, declaration, or direction referred to in
the next paragraph.
(f) Upon receipt by the Trustee from any Holder of Securities
of a particular series of (a) any notice of default or breach referred to in
Section 9.01(a)(iv) or 9.01(a)(v) with respect to Securities of such series, if
such default or breach has occurred and is continuing and the Trustee shall not
have given such notice to the
61
Company, (b) any declaration of acceleration referred to in Section 9.01(b), if
an Event of Default with respect to Securities of such series has occurred and
is continuing and the Trustee shall not have given such a declaration to the
Company, or (c) any direction referred to in Section 9.06 with respect to
Securities of such series, if the Trustee shall not have taken the action
specified in such direction, then a record date will automatically and without
any action by the Company or the Trustee be set for determining the Holders of
Outstanding Securities of such series entitled to join in such notice,
declaration, or direction, which record date will be the close of business on
the tenth calendar day following the day on which the Trustee receives such
notice, declaration, or direction. Promptly after such receipt by the Trustee,
and in any case not later than the fifth calendar day thereafter, the Trustee
will notify the Company and the Holders of Outstanding Securities of such series
of any such record date so fixed. The Holders of Outstanding Securities of such
series on such record date (or their duly appointed agents), and only such
Persons, will be entitled to join in such notice, declaration, or direction,
whether or not such Holders remain Holders after such record date; PROVIDED
that, unless such notice, declaration, or direction shall have become effective
by virtue of Holders of the requisite principal amount of Outstanding Securities
of such series on such record date (or their duly appointed agents) having
joined therein on or prior to the 90th calendar day after such record date, such
notice, declaration, or direction will automatically and without any action by
any Person be canceled and of no further effect. Nothing in this Section
14.11(f) will be construed to prevent a Xxxxxx (or a duly appointed agent
thereof) from giving, before or after the expiration of such 90-day period, a
notice, declaration, or direction contrary to or different from, or, after the
expiration of such period, identical to, the notice, declaration, or direction
to which such record date relates, in which event a new record date in respect
thereof will be set pursuant to this Section 14.11(f). Nothing in this Section
14.11(f) will be construed to render ineffective any notice, declaration, or
direction of the type referred to in this Section 14.11(f) given at any time to
the Trustee and the Company by Holders (or their duly appointed agents) of the
requisite principal amount of Outstanding Securities of the relevant series on
the date such notice, declaration, or direction is so given.
(g) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
SECTION 14.12. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and will not affect the construction hereof.
SECTION 14.13. BENEFITS OF INDENTURE.
62
Nothing in this Indenture or in the Securities, express or
implied, will give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy, or claim under this Indenture.
--------------------
63
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
[Seal] MERCURY FINANCE COMPANY
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Attest:
By:
------------------------
Name:
----------------------
Title:
---------------------
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, AS
TRUSTEE
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Attest:
By:
------------------------
Name:
----------------------
Title:
---------------------
64
STATE OF )
-------------
)SS:
COUNTY OF )
------------
On this ____ day of , 1998, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he/she is ___________________ of MERCURY FINANCE COMPANY, one of the
entities described in and which executed the above instrument; that he/she knows
the seal of said entity; that the seal or a facsimile thereof affixed to said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said entity, and that he/she signed his/her name thereto by like
authority.
------------------------------
Notary Public
In Witness Whereof, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
65
STATE OF )
-------------
)SS:
COUNTY OF )
------------
On this ____ day of , 1998, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he/she is ___________________ of NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, one of the entities described in and which executed the above
instrument; that he/she knows the seal of said entity; that the seal or a
facsimile thereof affixed to said instrument is such seal; that it was so
affixed by authority of the Board of Directors of said entity, and that he/she
signed his/her name thereto by like authority.
------------------------------
Notary Public
In Witness Whereof, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
66
