Mercury Finance Company
and
Norwest Bank Minnesota, National Association,
Trustee
_______________________
INDENTURE
Dated as of ______________, 1998
_______________________
SENIOR SUBORDINATED NOTES
Table of Contents*
PAGE
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Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.01. Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . .1
ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
AFFILIATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
AUTHENTICATING AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . .2
BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
BOARD RESOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
BUSINESS DAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
CAPITAL LEASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
CAPITAL LEASE OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . . . .2
COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
COMMON STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
COMPANY REQUEST OR COMPANY ORDER . . . . . . . . . . . . . . . . . . . . .3
CORPORATE TRUST OFFICE . . . . . . . . . . . . . . . . . . . . . . . . . .3
COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . .3
DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
DEFAULTED INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
DEFEASIBLE SERIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
DEPOSITARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
EVENT OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
EXCHANGE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
GLOBAL SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
HOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
INDEBTEDNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
INDENTURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
INTEREST PAYMENT DATE. . . . . . . . . . . . . . . . . . . . . . . . . . .5
MATERIAL ADVERSE EFFECT. . . . . . . . . . . . . . . . . . . . . . . . . .5
MATURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
NOTICE OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
OFFICER'S CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . .6
OPINION OF COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
ORIGINAL ISSUE DISCOUNT SECURITY . . . . . . . . . . . . . . . . . . . . .6
OUTSTANDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
PAYING AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
PERSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
PLACE OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
PREDECESSOR SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . .7
REDEMPTION DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
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REDEMPTION PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
REGULAR RECORD DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
RESPONSIBLE OFFICER. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
SECURITY REGISTER AND SECURITY REGISTRAR . . . . . . . . . . . . . . . . .8
SENIOR INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
SPECIAL RECORD DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
STATED MATURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
SUBSIDIARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
TRUST INDENTURE ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
U.S. GOVERNMENT OBLIGATION . . . . . . . . . . . . . . . . . . . . . . . .9
VICE PRESIDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
WAREHOUSE FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE II. THE SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.01. Designation and Amount of Securities. . . . . . . . . . . . . . 10
Section 2.02. Form of Securities and Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.03. Date and Denominations. . . . . . . . . . . . . . . . . . . . . 13
Section 2.04. Execution, Authentication, and Delivery of Securities . . . . . 13
Section 2.05. Registration of Transfer and Exchange . . . . . . . . . . . . . 15
Section 2.06. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . 16
Section 2.07. Mutilated, Destroyed, Lost, and Stolen Securities . . . . . . . 16
Section 2.08. Cancellation of Surrendered Securities. . . . . . . . . . . . . 17
Section 2.09. Payment of Interest; Interest Rights Preserved. . . . . . . . . 18
Section 2.10. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . 19
Section 2.11. Computation of Interest . . . . . . . . . . . . . . . . . . . . 19
Section 2.12. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE III. REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.01. Applicability of Article. . . . . . . . . . . . . . . . . . . . 20
Section 3.02. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . 20
Section 3.03. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . 21
Section 3.04. Securities Payable on Redemption Date . . . . . . . . . . . . . 21
Section 3.05. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . 21
ARTICLE IV. SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.01. Applicability of Article. . . . . . . . . . . . . . . . . . . . 22
Section 4.02. Satisfaction of Sinking Fund Payments With Securities . . . . . 22
Section 4.03. Redemption of Securities for Sinking Fund . . . . . . . . . . . 22
ARTICLE V. DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . 22
Section 5.01. Company's Option to Effect Defeasance or Covenant Defeasance. . 22
Section 5.02. Defeasance and Discharge. . . . . . . . . . . . . . . . . . . . 23
Section 5.03. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.04. Conditions to Defeasance or Covenant Defeasance . . . . . . . . 24
Section 5.05. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions. . . . . . . . . . . . . . . . . . 26
Section 5.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VI. PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . 26
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Section 6.01. Payment of Principal, Premium, and Interest on Securities . . . 26
Section 6.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . 27
Section 6.03. Money for Securities Payments to be Held in Trust . . . . . . . 27
Section 6.04. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . 28
Section 6.05. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.06. Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . 29
Section 6.07. Statement by Officers as to Default . . . . . . . . . . . . . . 29
Section 6.08. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . 29
Section 6.09. Calculation of Original Issue Discount. . . . . . . . . . . . . 29
ARTICLE VII. SECURITIES HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders . . . 30
Section 7.02. Preservation of Information; Communication to Holders . . . . . 30
Section 7.03. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.04. Reports by Company. . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VIII. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.01. Event of Default. . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.02. 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 . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 8.03. Application of Money Collected by Trustee . . . . . . . . . . . 35
Section 8.04. Limitation on Suits by Holders of Securities. . . . . . . . . . 35
Section 8.05. Rights and Remedies Cumulative; Delay or Omission in Exercise
of Rights not a Waiver of Event of Default . . . . . . . . . . . . . . . 36
Section 8.06. Rights of Holders of Majority in Principal Amount of
Outstanding Securities to Direct Trustee . . . . . . . . . . . . . . . . 36
Section 8.07. Requirement of an Undertaking to Pay Costs in Certain Suits
Under the Indenture or Against the Trustee . . . . . . . . . . . . . . . 37
Section 8.08. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.09. Unconditional Right of Holders to Receive Principal, Premium,
and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.10. Restoration of Rights and Remedies. . . . . . . . . . . . . . . 37
Section 8.11. Trustee May File Proofs of Claims . . . . . . . . . . . . . . . 38
ARTICLE IX SUBORDINATION OF SECURITIES. . . . . . . . . . . . . . . . . . . . . . 38
Section 9.01 Securities Subordinate to Senior Indebtedness. . . . . . . . . . 38
Section 9.02 Payment Over of Proceeds Upon Dissolution, etc.. . . . . . . . . 38
Section 9.03 Prior Payment to Senior Indebtedness Upon Acceleration of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 9.04 Payment Limitation . . . . . . . . . . . . . . . . . . . . . . . 39
Section 9.05 Payment Permitted. . . . . . . . . . . . . . . . . . . . . . . . 40
Section 9.06 Certain Limitations. . . . . . . . . . . . . . . . . . . . . . . 41
Section 9.07 Subrogation to Rights of Holders of Senior Indebtedness. . . . . 41
Section 9.08 Provisions Solely to Define Relative Rights. . . . . . . . . . . 41
Section 9.09 Agreement to Effectuate Subordination. . . . . . . . . . . . . . 42
Section 9.10 No Waiver of Subordination Provisions. . . . . . . . . . . . . . 42
Section 9.11 Reliance on Judicial Order or Certificate of Liquidating Agent . 43
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Section 9.12 Prohibited Payments Held In Trust. . . . . . . . . . . . . . . . 43
ARTICLE X. CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.01. Certain Duties and Responsibilities. . . . . . . . . . . . . . 43
Section 10.02. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . 43
Section 10.03. Not Responsible for Recitals or Issuance of Securities . . . . 44
Section 10.04. May Hold Securities. . . . . . . . . . . . . . . . . . . . . . 44
Section 10.05. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . 45
Section 10.06. Compensation and Reimbursement . . . . . . . . . . . . . . . . 45
Section 10.07. Disqualification; Conflicting Interests. . . . . . . . . . . . 46
Section 10.08. Corporate Trustee Required Eligibility . . . . . . . . . . . . 46
Section 10.09. Resignation and Removal; Appointment of Successor. . . . . . . 46
Section 10.10. Acceptance of Appointment by Successor . . . . . . . . . . . . 47
Section 10.11. Merger, Conversion, Consolidation, or Succession to Business . 48
Section 10.12. Preferential Collection of Claims Against Company. . . . . . . 49
Section 10.13. Appointment of Authenticating Agent. . . . . . . . . . . . . . 49
ARTICLE XI. SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS . . . . . . . . . . . . . 50
Section 11.01. Purposes for Which Supplemental Indentures May Be Entered
Into Without Consent of Holders. . . . . . . . . . . . . . . . . . . . . 51
Section 11.02. Modification of Indenture With Consent of Holders of at
Least a Majority in Principal Amount of Outstanding Securities . . . . . 51
Section 11.03. No Amendments to Article IX. . . . . . . . . . . . . . . . . . 53
Section 11.04. Execution of Supplemental Indentures . . . . . . . . . . . . . 53
Section 11.05. Effect of Supplemental Indentures. . . . . . . . . . . . . . . 53
Section 11.06. Conformity with Trust Indenture Act. . . . . . . . . . . . . . 53
Section 11.07. Reference in Securities to Supplemental Indentures . . . . . . 53
ARTICLE XII. CONSOLIDATION, MERGER, SALE, OR TRANSFER . . . . . . . . . . . . . . 53
Section 12.01. Consolidations and Mergers of Company and Sales Permitted
Only on Certain Terms. . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE XIII. SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . 54
Section 13.01. Satisfaction and Discharge of Indenture. . . . . . . . . . . . 54
Section 13.02. Application of Trust Money . . . . . . . . . . . . . . . . . . 55
ARTICLE XIV. MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 55
Section 14.01. Successors and Assigns of Company Bound by Indenture . . . . . 55
Section 14.02. Service of Required Notice to Trustee and Company. . . . . . . 55
Section 14.03. Service of Required Notice to Holders; Waiver. . . . . . . . . 55
Section 14.04. Indenture and Securities to be Construed in Accordance with
the Laws of the State of New York. . . . . . . . . . . . . . . . . . . . 56
Section 14.05. Compliance Certificates and Opinions . . . . . . . . . . . . . 56
Section 14.06. Form of Documents Delivered to Trustee . . . . . . . . . . . . 56
Section 14.07. Payments Due on Non-Business Days. . . . . . . . . . . . . . . 56
Section 14.08. Provisions Required by Trust Indenture Act to Control. . . . . 57
Section 14.09. Invalidity of Particular Provisions. . . . . . . . . . . . . . 57
Section 14.10. Indenture May be Executed In Counterparts. . . . . . . . . . . 57
Section 14.11. Acts of Holders; Record Dates. . . . . . . . . . . . . . . . . 57
Section 14.12. Effect of Headings and Table of Contents . . . . . . . . . . . 59
Section 14.13. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . 59
6
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
subordinated 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
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:
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.
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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 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.
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
5.03.
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 5.02.
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DEFEASIBLE SERIES:
The term "Defeasible Series" has the meaning set forth in Section
5.01.
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
8.01(a).
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.
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
-4-
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 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.
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).
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
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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 8.01(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 8.01(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) 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
8.01(b), (y) the principal amount of a Security denominated in one or
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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.
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.
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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 REGISTER AND SECURITY REGISTRAR:
The terms "Security Register" and "Security Registrar" have the
respective meanings set forth in Section 2.05.
SENIOR INDEBTEDNESS:
The term "Senior Debt" means (a) the Company's 9% Senior Secured
Notes, Series A issued under the Indenture dated as of ___________ __, 1998
(the "Senior Secured Notes Indenture") between the Company and the trustee
thereunder, (b) the Company's Senior Secured Notes, Series B issued under the
Senior Secured Notes Indenture, (c) any senior secured notes issued in the
future under the Senior Secured Notes Indenture, (d) Indebtedness with
respect to any Warehouse Facility and (e) any other Indebtedness which is not
expressed to be subordinate or junior in right of payment to any other
Indebtedness.
SPECIAL RECORD DATE:
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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.
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 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:
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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:
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 V, VI, and IX 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
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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 11.07 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 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 8.01(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 V, 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 5.02; (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
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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; and (xviii) 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)).
(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]
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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: ----------------------------------------------
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.
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(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.
(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.
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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.
(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.
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(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 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.
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(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.
(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
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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.
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
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on such Special Record Date and
will no longer be payable pursuant to the following clause (ii).
(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
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SECTION 3.01. APPLICABILITY OF ARTICLE.
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 6.03) 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. DEFEASANCE AND COVENANT DEFEASANCE
SECTION 5.01. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
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The Company may elect, at its option by Board Resolution at
any time, to have either Section 5.02 or Section 5.03 applied to the
Outstanding Securities of any series designated pursuant to Section 2.01 as
being defeasible pursuant to this Article V (hereinafter called "Defeasible
Series"), upon compliance with the conditions set forth below in this Article
V, PROVIDED that Section 5.02 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 5.02. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 5.01
to have this Section 5.02 applied to the Outstanding Securities of any
Defeasible Series and subject to the proviso to Section 5.01, 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 5.02 on
and after the date the conditions set forth in Section 5.04 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 5.04 and as more fully set forth in Section 5.04,
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, 6.02, 6.03, and 11.06, (c) the rights, powers, trusts,
duties, and immunities of the Trustee hereunder, and (d) this Article V.
Subject to compliance with this Article V, the Company may exercise its
option provided in Section 5.01 to have this Section 5.02 applied to the
Outstanding Securities of any Defeasible Series notwithstanding the prior
exercise of its option provided in Section 5.01 to have Section 5.03 applied
to the Outstanding Securities of such series.
SECTION 5.03. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 5.01
to have this Section 5.03 applied to the Outstanding Securities of any
Defeasible Series, (a) the Company will be released from its obligations
under Sections 6.04 through 6.07, inclusive, Section 12.01, and such
provisions of any Supplemental Indenture as may be specified in such
Supplemental Indenture, and (b) the occurrence of any event specified in
Sections 8.01(a)(iii), 8.01(a)(iv) (with respect to any of Sections 6.04
through 6.07, inclusive, Section 12.01, and such provisions of any
Supplemental Indenture as may be specified in such Supplemental Indenture),
8.01(a)(v), 8.01(a)(vi), and 8.01(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 5.04 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that the Company may omit
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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 8.01(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.
SECTION 5.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following will be the conditions to application of either Section
5.02 or Section 5.03 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 V 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 5.02, 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 5.03, 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
-24-
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.
(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 8.01(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.
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SECTION 5.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
(a) Subject to the provisions of Section 6.03(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 5.05
and Section 5.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 5.04 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 5.04 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 V 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 5.04 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 5.06. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article V 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 V 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 5.05 with respect to Securities of such series in accordance with
this Article V; 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 VI. PARTICULAR COVENANTS OF THE COMPANY
SECTION 6.01. 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 6.02. 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 6.03. 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 Section 6.03, that such Paying Agent will (i) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying
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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 6.04. 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 breach of
this Section 6.04 if such failure (i) was not willful and (ii) does not and will
not result in any Material Adverse Effect.
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SECTION 6.05. EXISTENCE.
Subject to Article XI, 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 6.06 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 6.06. 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 6.07. 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 6.08. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision, or condition set forth in Sections 6.04 and 6.06 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.
SECTION 6.09. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
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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 VII. SECURITIES HOLDERS' LISTS AND
REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 7.01. 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 7.02. 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 7.01 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 7.01 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 7.03. REPORTS BY TRUSTEE.
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
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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 7.04. 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 VIII. DEFAULT
SECTION 8.01. 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 [30] 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;
(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 8.01 specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or
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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 $25.0 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
8.08, 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
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,
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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; or
(ix) any other Event of Default provided in an indenture
supplemental hereto with respect to Securities of that series created
thereunder.
(b) If an Event of Default (other than an Event of Default arising
under Section 8.01(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 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 8.01(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 VIII 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 8.01(d). No such rescission will affect any subsequent default or
impair any right consequent thereon.
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(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 X
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 8.02. 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 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 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
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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.
SECTION 8.03. APPLICATION OF MONEY COLLECTED BY TRUSTEE.
Any money collected by the Trustee pursuant to this Article VIII
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, 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, according to the
amounts due and payable on such Securities for principal and any
premium, respectively.
SECTION 8.04. 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
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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 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 8.05. 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 VIII 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 8.06. 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
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and (b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 8.07. 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 8.07 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 8.08. NOTICE OF DEFAULTS.
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 8.01(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 8.09. 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 8.10. 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.
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SECTION 8.11. 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 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.
ARTICLE IX SUBORDINATION OF SECURITIES
SECTION 9.01 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
To the extent and in the manner hereinafter set forth in this
Article IX, the payment of principal of, premium, if any, and interest on and
all other payments in respect of the Securities of any series issued under
this Indenture shall be subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, including (without
limitation) all principal thereof and all premium, if any, and interest
thereon.
SECTION 9.02 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding
or other similar case or proceeding under any Federal or state bankruptcy or
similar law, or any receivership, liquidation, arrangement, relief,
reorganization or other similar case or proceeding in connection therewith,
relative to the Company or to its assets, or (b) any liquidation,
dissolution, reorganization, compromise, arrangement, adjustment, protection,
composition, relief or other winding up of the Company or its debts, whether
voluntary or involuntary and whether or not involving any insolvency or
bankruptcy or any case or proceeding of any kind, or (c) any assignment for
the benefit of creditors or any other marshaling of assets and liabilities of
the Company, then, and in each such event, the holders of Senior Indebtedness
shall be entitled to receive payment in full of all amounts due or to become
due on or in respect of all Senior Indebtedness, before the Company may make,
and before any Holder of Securities is entitled to receive or retain, any
payment or distribution of any kind or character (whether in cash, property
or securities) on account of Securities, and to that end the Holders of
Securities agree to
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promptly pay over, or cause to be paid over, to the holders of Senior
Indebtedness (pro rata to each such holder on the basis of the respective
amounts of such Senior Indebtedness held by such holder) any payment or
distribution of any kind or character, whether in cash, property or
securities, to the extent necessary to pay or prepay in full the Senior
Indebtedness.
Each Holder of Securities shall duly and promptly take such action as is
reasonably necessary to file appropriate claims or proofs of claims in any
such proceedings referred to in this Section 9.02 and to execute and deliver
such other instruments and take such other actions as may be reasonably
necessary to prove or realize upon such claims and to have the proceeds of
such claims paid as provided in this Section 9.02, and, in the event any
Holder of Securities shall not have made any such filing on or prior to the
date 30 days before the expiration of the time for such filing or shall not
have timely executed or delivered any such other instruments and taken such
other actions, the holders of not less than 25% of any series of Senior
Indebtedness, acting through a trustee, agent or otherwise, are hereby
irrevocably authorized and empowered (but shall have no obligation) to, as
the agent and attorney-in-fact for such holder for the specific and limited
purpose set forth in this paragraph, file such proof of claim for or on
behalf of such holder, execute and deliver such other instrument for or on
behalf of such holder and take such other action necessary under applicable
law to collect any amounts due in respect of such claim in such proceeding.
Anything contained in this paragraph notwithstanding, the right to vote any
claim or claims in respect of any Securities in connection with any
proceedings referred to in this Section 9.02 is exclusively reserved to the
holder of such Securities.
SECTION 9.03 PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION OF
SECURITIES.
In the event that Securities of any series are declared due and
payable before their Stated Maturity, then and in such event the holders of
Senior Indebtedness outstanding at the time such Securities so become due and
payable shall be entitled to receive payment in full on all amounts due or to
become due on or in respect of such Senior Indebtedness before the Company
may make, and before any Holder of such Securities is entitled to receive or
retain, any payment or distribution of assets of the Company or any
Subsidiary of any kind or character, whether in cash, property or securities
on account of any such Securities.
SECTION 9.04 PAYMENT LIMITATION.
(a) In the event and during the continuance of any Senior Default
(as hereinafter in this paragraph defined) and prior to the declaration of
such Senior Indebtedness to be due and payable prior to its stated maturity,
the holders of not less than 25% of the aggregate principal amount of such
series of Senior Indebtedness, acting through a trustee, agent or otherwise
may give to both the Company and each Holder of Securities written notice
referring to the Securities and this Indenture and specifying that it is a
notice of a Senior Default (a "Senior Default Notice") and, thereafter, no
payment or distribution of any kind or character (whether in cash, property
or securities) shall be made on or in respect of any Securities, and no
Holder of Securities shall take or receive or retain from the Company or any
Subsidiary, directly or indirectly, in cash, property or securities, or by
way of set-off or in any other manner, payment
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of all or any of the Securities during the period (a "Senior Default Blockage
Period") commencing on the date of receipt by both the Company and the
Trustee of such notice and ending on the earliest of (i) the date of the
repayment in full of such Senior Indebtedness, (ii) the date on which such
Senior Indebtedness shall have been declared due and payable prior to its
stated maturity (in which case Section 9.04(b) shall govern), (iii) the date
on which such Senior Default shall have been cured or waived, (iv) the date
on which the holders of not less than 25% of the aggregate outstanding
principal amount of such series of Senior Indebtedness, acting through a
trustee, agent or otherwise, shall have delivered to the Company and the
Trustee a notice referring to the Securities and the immediately preceding
Senior Default Notice and stating that such Senior Default Notice has been
withdrawn, or (v) the 180th day following the receipt by both the Company and
the Trustee of such Senior Default Notice pursuant to this clause (a). Any
number of Senior Default Notices may be given, provided that (A) only one
Senior Default Notice may be given with respect to any single occurrence of a
Senior Default and (B) no Senior Default Notice shall be effective at any
time to prevent any payment from being made by or on behalf of the Company or
any Subsidiary for or on account of any Securities (and any such Senior
Default Notice shall be or become null and void ab initio) if, within the
360-day period next preceding the date on which such Senior Default Notice
shall have been delivered to the Company and the Trustee, a Senior Default
Blockage Period was in effect for all or part of such period. All payments
in respect of Securities postponed during any Senior Default Blockage Period
shall be immediately due and payable upon the termination thereof (together
with such additional interest as is provided herein, any indentures
supplemental hereto and in the Securities for late payment of principal,
premium or interest). As used herein, the term "Senior Default" means any
default with respect to any Senior Indebtedness which as of such time permits
the holders of not less than 25% of the aggregate outstanding principal
amount of such Senior Indebtedness to cause such Senior Indebtedness to
become due prior to its scheduled maturity.
(b) In the event that the holders of not less than 25% of the
aggregate outstanding principal amount of any series of Senior Indebtedness
shall declare such series of Senior Indebtedness to be due and payable prior
to its stated maturity as a result of the occurrence of a Senior Default in
respect thereof, no payment or distribution of any kind or character (whether
in cash, property or securities) shall be made on or in respect of any
Securities, and no Holder of Securities shall take or receive or retain from
the Company or any Subsidiary, directly or indirectly, in cash, property or
securities, or by way of set-off or in any other manner, payment of all or
any of the Securities until the earlier of (i) the payment in full of such
series of Senior Indebtedness or (ii) the rescission or termination of such
declaration.
(c) The provisions of this Section 9.04 shall not apply to any
payment with respect to which Section 9.02 or Section 9.03 would be
applicable.
SECTION 9.05 PAYMENT PERMITTED.
Nothing contained in this Article IX or elsewhere in this
Indenture, any indenture supplemental hereto or in any Securities issued
hereunder shall prevent the Company at any
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time, except as expressly provided in Section 9.02, Section 9.03, Section
9.04 or Section 9.06, from making payments of principal of or premium, if
any, or interest on Securities of any series in accordance with the terms
thereof.
SECTION 9.06 CERTAIN LIMITATIONS.
As long as any Senior Indebtedness remains outstanding, no Holder
of Securities shall (a) exchange all or part of such for any equity security
of the Company, except as provided in Section 9.02, (b) forgive all or any
part of such Securities, except as provided in Section 9.02 or (c) accept any
optional prepayment with respect to such Securities if, after receipt of
written notice from the Company, such prepayment would constitute an event of
default under, and as defined in, any agreement or agreements with respect to
any Senior Indebtedness.
SECTION 9.07 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Holders of Securities of each series hereunder shall be subrogated
equally and ratably to the rights of the holders of Senior Indebtedness at
the time outstanding to receive payments and distributions of cash, property
and securities applicable to the Senior Indebtedness until all amounts
payable for or on account of such Securities shall be paid in full; provided,
however, that no payment or distribution to any holder or owner of Senior
Indebtedness pursuant to this Article IX shall entitle any Holder of
Securities to exercise any rights of subrogation in respect thereof until all
Senior Indebtedness shall have been paid in full. For purposes of such
subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders of
Securities would be entitled except for the provisions of this Article IX,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the holders of Senior Indebtedness and the Holders of
Securities, be deemed to be a payment or distribution by the Company to or on
account of Senior Indebtedness.
SECTION 9.08 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article IX are and are intended solely for
the purpose of defining the relative rights of the Holders of Securities on
the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article IX or elsewhere in this Indenture, any
indenture supplemental hereto or in the Securities issued hereunder is
intended to or shall (a) impair, as among the Company, its creditors (other
than holders of Senior Indebtedness) and the Holders of Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of Securities the principal of, premium, if any, and interest on, and
all other amounts payable with respect to, the Securities as and when the
same shall become due and payable in accordance with their respective terms,
(b) affect the relative rights against the Company of the Holders of
Securities and creditors of the Company (other than the holders of Senior
Indebtedness), (c) prevent the Holder of any Securities from exercising all
remedies otherwise permitted by applicable law upon a Default or Event of
Default under this Indenture, subject to the rights under the provisions of
Section 9.02, Section 9.03 and Section 9.04 hereof of the holders of Senior
Indebtedness to receive cash, property or securities
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otherwise payable or deliverable to the Holders of Securities or (d) restrict
or otherwise impair the right of the Holders of Securities to, in accordance
with the terms of this Indenture, declare the Securities of any series to be
due and payable prior to their respective stated maturity upon the occurrence
of an Event of Default.
SECTION 9.09 AGREEMENT TO EFFECTUATE SUBORDINATION.
(a) Each Holder of Securities by its acceptance thereof agrees to
take such action as may be reasonably necessary or appropriate to effectuate,
as between the holders of Senior Indebtedness and such Holder of Securities,
the subordination provided in this Article IX.
(b) The provisions of this Article IX (including, without
limitation, this Section 9.09) may not be amended, modified or waived without
the prior written consent of all the holders of Senior Indebtedness which is
at the time outstanding. The provisions set forth in Article IX constitute a
continuing agreement and shall (i) be and remain in full force and effect at
any time, and from time to time, during which any Senior Indebtedness shall
remain outstanding, (ii) be binding upon the Holders of Securities and the
Company and its successors, transferees and assigns, and (iii) inure to the
benefit of, and be enforceable, in accordance with the terms hereof, directly
by, each of the holders of the Senior Indebtedness and their respective
successors, transferees and assigns, against the Holders of Securities and
the Company and their successors, transferees and assigns.
SECTION 9.10 NO WAIVER OF SUBORDINATION PROVISIONS.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce its rights under this Indenture shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to any Holder of Securities,
without incurring responsibility to any Holder of Securities and without
impairing or releasing the subordination provided in this Article IX or the
obligations hereunder of any Holder of Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or
alter, all or any of the Senior Indebtedness, or otherwise amend or
supplement in any manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding; (ii)
sell, exchange, release, not perfect or otherwise deal with any property
pledged, assigned or mortgaged to secure, or otherwise securing, Senior
Indebtedness; (iii) as holders of Senior Indebtedness, exercise or refrain
from exercising any rights against the Company and any other Person; and (iv)
apply any sums from time to time received to the payment of the Senior
Indebtedness.
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SECTION 9.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred
to in this Article IX, the Holders of Securities shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in
which any insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the holders of Securities,
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article IX.
SECTION 9.12 PROHIBITED PAYMENTS HELD IN TRUST.
In the event that, notwithstanding the provisions of this Article
IX, the Company or any Subsidiary shall make, or any Holder of Securities
shall receive or retain, any payment or distribution of the Company's or such
Subsidiary's assets of any kind or character, whether in cash, property or
securities, then and in such event such payment or distribution shall be
received and held by such Holder of Securities in trust for the benefit of
the holders of Senior Indebtedness, shall be paid over or delivered, in the
same form as so received (with any necessary endorsement) forthwith to such
holders of Senior Indebtedness (pro rata to each such holder on the basis of
the respective amounts of such Senior Indebtedness held by such holder) for
application to the payment or prepayment in full of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.
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,
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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 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.
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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 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 8.01(a)(vii) or
Section 8.01(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.
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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.
(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 Xxxxxx 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
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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 8.07, 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 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
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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 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 IX.
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
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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 IX, 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).
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
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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 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
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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;
(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.
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(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:
(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
8.01(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
8.01(d) or Section 6.08, 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
6.08, 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.
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SECTION 11.03. NO AMENDMENTS TO ARTICLE IX.
Notwithstanding the provisions of Sections 11.01 and 11.02, no
amendments shall be made to the provisions of Article IX and this Section
11.03 without the unanimous consent of the holders of Outstanding Senior
Indebtedness.
SECTION 11.04. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article X 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 supplemental indenture which
affects the Trustee's own rights, duties, or immunities under this Indenture
or otherwise.
SECTION 11.05. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article
X, 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 11.06. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article X
will conform to the requirements of the Trust Indenture Act.
SECTION 11.07. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article X 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
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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 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 6.03) 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
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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 6.03(e) and 13.02, will survive.
SECTION 13.02. APPLICATION OF TRUST MONEY.
Subject to provisions of Section 6.03(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
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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 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
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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.
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
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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 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 8.01(a)(iv) or 8.01(a)(v) with
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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
Company, (b) any declaration of acceleration referred to in Section 8.01(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 8.06 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.
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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.
____________________
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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:______________________________
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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
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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
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