EXHIBIT 4.1
INDENTURE
Dated as of _________, 2000
Among
METRIS COMPANIES INC., as Issuer,
the GUARANTORS named herein
and
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
Providing for the issuance of Senior Debt Securities in series
CROSS-REFERENCE TABLE
Trust Indenture Indenture
Act Section Section
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(S) 310(a)(1).....................................................................................7.10
(a)(2).....................................................................................7.10
(a)(3).....................................................................................N.A.
(a)(4).....................................................................................N.A.
(a)(5)...............................................................................7.08, 7.10
(b)...........................................................................7.08; 7.10; 12.02
(c)........................................................................................N.A.
(S) 311(a)........................................................................................7.11
(b)........................................................................................7.11
(c)........................................................................................N.A.
(S) 312(a)........................................................................................2.06
(b).......................................................................................12.03
(c).......................................................................................12.03
(S) 313(a)........................................................................................7.06
(b)(1).....................................................................................N.A.
(b)(2).....................................................................................7.06
(c).................................................................................7.06; 12.02
(d)........................................................................................7.06
(S) 314(a)...........................................................................4.10; 4.12; 12.02
(b)........................................................................................N.A.
(c)(1)....................................................................................12.04
(c)(2)....................................................................................12.04
(c)(3).....................................................................................N.A.
(d)........................................................................................N.A.
(e).......................................................................................12.05
(f)........................................................................................N.A.
(S) 315(a)........................................................................................7.01(b)
(b).................................................................................7.05; 12.02
(c)........................................................................................7.01(a)
(d)........................................................................................7.01(c)
(e)........................................................................................6.11
(S) 316(a)(last sentence).........................................................................2.10
(a)(1)(A)..................................................................................6.05
(a)(1)(B)..................................................................................6.04
(a)(2).....................................................................................N.A.
(b)........................................................................................6.07
(c)........................................................................................9.04
(S) 317(a)(1).....................................................................................6.08
(a)(2).....................................................................................6.09
(b)........................................................................................2.05
(S) 318(a).......................................................................................12.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..................................................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act............................... 17
SECTION 1.03. Rules of Construction........................................................... 17
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Forms Generally................................................................. 17
SECTION 2.02. Amount Unlimited; Issuable in Series............................................ 18
SECTION 2.03. Execution, Authentication, Delivery and Dating.................................. 21
SECTION 2.04. Registrar and Paying Agent...................................................... 24
SECTION 2.05. Paying Agent To Hold Assets in Trust............................................ 24
SECTION 2.06. Holder Lists.................................................................... 25
SECTION 2.07. Registration, Transfer and Exchange............................................. 25
SECTION 2.08. Replacement Securities.......................................................... 26
SECTION 2.09. Outstanding Securities.......................................................... 27
SECTION 2.10. Treasury Securities............................................................. 27
SECTION 2.11. Temporary Securities............................................................ 28
SECTION 2.12. Cancellation.................................................................... 28
SECTION 2.13. Payment of Interest; Defaulted Interest......................................... 28
SECTION 2.14. CUSIP Number.................................................................... 29
SECTION 2.15. Deposit of Moneys............................................................... 29
SECTION 2.16. Book-Entry Provisions for Global Securities..................................... 29
SECTION 2.17. Currency and Manner of Payment in Respect of Securities......................... 30
SECTION 2.18. Appointment and Resignation of Exchange Rate Agent.............................. 34
ARTICLE THREE
REDEMPTION
SECTION 3.01. Applicability of Article........................................................ 34
SECTION 3.02. Election to Redeem; Notices to Trustee.......................................... 34
SECTION 3.03. Selection of Securities To Be Redeemed.......................................... 35
SECTION 3.04. Notice of Redemption............................................................ 35
SECTION 3.05. Effect of Notice of Redemption.................................................. 36
SECTION 3.06. Deposit of Redemption Price..................................................... 36
SECTION 3.07. Securities Redeemed in Part..................................................... 36
ARTICLE FOUR
COVENANTS
SECTION 4.01. Termination of Certain Covenants in Event of Investment Grade
Rating......................................................................... 36
SECTION 4.02. Payment of Securities........................................................... 37
SECTION 4.03. Maintenance of Office or Agency................................................. 37
SECTION 4.04. Limitations on Transactions with Affiliates..................................... 37
SECTION 4.05. Limitation on Indebtedness...................................................... 38
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SECTION 4.06. Payments for Consent............................................................ 39
SECTION 4.07. Limitation on Investment Company Status......................................... 40
SECTION 4.08. Limitation on Asset Sales....................................................... 40
SECTION 4.09. Limitation on Restricted Payments............................................... 41
SECTION 4.10. Notice of Defaults.............................................................. 43
SECTION 4.11. Limitation on Liens............................................................. 43
SECTION 4.12. Reports......................................................................... 43
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries........................................................ 44
SECTION 4.14. Additional Subsidiary Guarantees................................................ 45
SECTION 4.15. Offer to Purchase upon Change of Control........................................ 45
SECTION 4.16. Compliance Certificate.......................................................... 45
SECTION 4.17. Corporate Existence............................................................. 46
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Sale of Assets, etc.................................................... 46
SECTION 5.02. Successor Corporation Substituted............................................... 47
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default............................................................... 47
SECTION 6.02. Acceleration.................................................................... 49
SECTION 6.03. Other Remedies.................................................................. 49
SECTION 6.04. Waiver of Past Default.......................................................... 49
SECTION 6.05. Control by Majority............................................................. 50
SECTION 6.06. Limitation on Suits............................................................. 50
SECTION 6.07. Rights of Holders To Receive Payment............................................ 51
SECTION 6.08. Collection Suit by Trustee...................................................... 51
SECTION 6.09. Trustee May File Proofs of Claim................................................ 51
SECTION 6.10. Priorities...................................................................... 51
SECTION 6.11. Undertaking for Costs........................................................... 52
SECTION 6.12. Judgment Currency............................................................... 52
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.............................................................. 53
SECTION 7.02. Rights of Trustee.............................................................. 53
SECTION 7.03. Individual Rights of Trustee................................................... 55
SECTION 7.04. Trustee's Disclaimer........................................................... 55
SECTION 7.05. Notice of Defaults............................................................. 55
SECTION 7.06. Reports by Trustee to Holders.................................................. 55
SECTION 7.07. Compensation and Indemnity..................................................... 55
SECTION 7.08. Replacement of Trustee......................................................... 56
SECTION 7.09. Successor Trustee by Merger, etc............................................... 57
SECTION 7.10. Eligibility; Disqualification.................................................. 57
SECTION 7.11. Preferential Collection of Claims Against the Company.......................... 58
SECTION 7.12. Trustee's Application for Instructions from the Company........................ 58
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ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations........................................ 58
SECTION 8.02. Legal Defeasance and Covenant Defeasance........................................ 59
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance........................... 59
SECTION 8.04. Application of Trust Money; Trustee Acknowledgment and Indemnity................ 61
SECTION 8.05. Repayment to Company............................................................ 61
SECTION 8.06. Reinstatement................................................................... 61
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders...................................................... 62
SECTION 9.02. With Consent of Holders......................................................... 62
SECTION 9.03. Compliance with Trust Indenture Act............................................. 64
SECTION 9.04. Record Date for Consents and Effect of Consents................................. 64
SECTION 9.05. Notation on or Exchange of Securities........................................... 64
SECTION 9.06. Trustee to Sign Amendments, etc................................................. 64
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee......................................................... 64
SECTION 10.02. Severability.................................................................... 65
SECTION 10.03. Release of a Guarantor.......................................................... 65
SECTION 10.04. Limitation of Guarantor's Liability............................................. 66
SECTION 10.05. Contribution.................................................................... 66
SECTION 10.06. Execution of Security Guarantee................................................. 66
SECTION 10.07. Subordination of Subrogation and Other Rights................................... 66
ARTICLE ELEVEN
SINKING FUNDS
SECTION 11.01. Applicability of Article........................................................ 67
SECTION 11.02. Satisfaction of Sinking Fund Payments with Securities........................... 67
SECTION 11.03. Redemption of Securities for Sinking Fund....................................... 67
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.................................................... 68
SECTION 12.02. Notices......................................................................... 68
SECTION 12.03. Communications by Holders with Other Holders.................................... 69
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.............................. 69
SECTION 12.05. Statements Required in Certificate.............................................. 69
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar....................................... 69
SECTION 12.07. Governing Law................................................................... 70
SECTION 12.08. No Recourse Against Others...................................................... 70
SECTION 12.09. Successors...................................................................... 70
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SECTION 12.10. COUNTERPART ORIGINALS........................................................ 70
SECTION 12.11. SEVERABILITY................................................................. 70
SECTION 12.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS................................ 70
SECTION 12.13. LEGAL HOLIDAYS............................................................... 70
SIGNATURES
EXHIBIT A Form of Security Guarantee
EXHIBIT B Form of Legend for Global Securities
_________________
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE dated as of ___________, 2000, among METRIS COMPANIES INC, a
Delaware corporation (the "Company"), the GUARANTORS named herein and U.S. BANK
TRUST NATIONAL ASSOCIATION, a national banking association, as trustee (the
"Trustee").
Each party hereto agrees as follows for the benefit of each other party and
for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person, (i)
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Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"Additional Amounts" has the meaning provided in Section 2.02.
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"Affiliate" of any specified Person means any other Person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Affiliate Transaction" has the meaning provided in Section 4.04.
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"Agent" means any Registrar, Paying Agent or co-Registrar.
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"Asset Sale" means any direct or indirect sale, conveyance, transfer, lease
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(that has the effect of a disposition) or other disposition (including, without
limitation, any merger, consolidation or sale-leaseback transaction) to any
Person other than the Company or a Wholly-Owned Restricted Subsidiary of the
Company, in one transaction or a series of related transactions, of (i) any
Equity Interest of any Restricted Subsidiary of the Company; (ii) any material
license, franchise or other authorization of the Company or any Restricted
Subsidiary of the Company; (iii) any assets of the Company or any Restricted
Subsidiary of the Company which constitute substantially all of an operating
unit or line of business of the Company or any Restricted Subsidiary of the
Company; or (iv) any other property or asset of the Company or any Restricted
Subsidiary of the Company outside of the ordinary course of business (including
the receipt of proceeds paid on account of the loss of or damage to any property
or asset and awards of compensation for any asset taken by condemnation, eminent
domain or similar proceedings). For the purposes of this definition, the term
"Asset Sale" shall not include (a) any transaction consummated in compliance
with Section 5.01 and the creation of any Lien not prohibited by Section 4.11;
provided, however, that any transaction consummated in compliance with Section
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5.01 involving a sale, conveyance, assignment, transfer, lease or other disposal
of less than all of the properties or assets of the Company shall be deemed to
be an Asset Sale with respect to the properties or assets of the Company and the
Restricted Subsidiaries of the Company that are not so sold, conveyed, assigned,
transferred, leased or otherwise disposed of in such transaction; (b) sales of
property or equipment that has become
worn out, obsolete or damaged or otherwise unsuitable for use in connection with
the business of the Company or any Restricted Subsidiary of the Company, as the
case may be; (c) any transaction consummated in compliance with Section 4.09;
(d) a pledge, or transfer pursuant to a pledge of assets, which pledge is a
Permitted Lien; and (e) sales of Receivables or interests in Receivables in
connection with Securitizations or otherwise in the ordinary course of business.
In addition, solely for purposes of Section 4.08, any sale, conveyance,
transfer, lease or other disposition of any property or asset, whether in one
transaction or a series of related transactions, involving assets with a Fair
Market Value not in excess of $1.0 million in any fiscal year shall be deemed
not to be an Asset Sale.
"Authorized Newspaper" means a newspaper of general circulation, in the
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official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder, they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bankruptcy Law" has the meaning provided in Section 6.01.
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"Bearer Security" means any Security issued hereunder which is payable to
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bearer.
"Board of Directors" means the Board of Directors or other governing body
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charged with the ultimate management of any Person, or any duly authorized
committee thereof.
"Board Resolution" means, with respect to any Person, a duly adopted
----------------
resolution of the Board of Directors of such Person or a duly authorized
committee of such Board of Directors.
"Business Day" means any day other than a Saturday, a Sunday or a day on
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which banking institutions in New York, New York are not required to be open.
"Capital Lease Obligation" means, at the time any determination thereof is
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to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
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(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means: (a) U.S. dollars; (b) securities issued or
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directly and fully guaranteed or insured by the U.S. government or any agency or
instrumentality thereof having maturities of not more than six months from the
date of acquisition; (c) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any domestic commercial bank having capital and
surplus in excess of $500 million; (d) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clauses
(b) and (c) above entered into with any financial institution meeting the
qualifications specified in clause (c) above; (e) commercial paper rated X-0, X-
0 or the equivalent thereof by Moody's or Standard & Poor's, respectively, and
in each case maturing within six months after the date of acquisition; and (f)
money market funds, the portfolios of which are limited to investments described
in clauses (a) through (c) above.
2
"Change of Control" means the occurrence of any of the following events
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(whether or not approved by the Board of Directors of the Company): (i) any
Person (as such term is used in Sections 13(d) and 14(d) of the Exchange Act,
including any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other
than the Permitted Holders, is or becomes the "beneficial owner" or "beneficial
owners" (as defined in Rule 13d-3 and 13d-5 under the Exchange Act, except that
a Person shall be deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time, upon the happening of an event or
otherwise), directly or indirectly, of more than 35% of the total voting power
of the then outstanding Voting Stock of the Company; but only in the event that
the Permitted Holders "beneficially own," directly or indirectly, in the
aggregate a lesser percentage of the total voting power of the then outstanding
Voting Stock of the Company than such other Person and do not have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of the Company; (ii) the Company
consolidates with, or merges with or into, another Person (other than the
Company or a Wholly-Owned Restricted Subsidiary of the Company) or the Company
or its Restricted Subsidiaries sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of the assets of the Company and
its Restricted Subsidiaries (determined on a consolidated basis) to any Person
(other than the Company or a Wholly-Owned Restricted Subsidiary of the Company),
other than any such transaction where immediately after such transaction the
Person or Persons that "beneficially owned" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
immediately prior to such transaction, directly or indirectly, the then
outstanding Voting Stock of the Company "beneficially own" (as so determined),
directly or indirectly, a majority of the total voting power of the then
outstanding Voting Stock of the surviving or transferee Person; (iii) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company was approved by a vote of a majority
of the directors of the Company then still in office who were either directors
at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office; or (iv) for so long as any
share of Series C Preferred is outstanding, the Company is required by the
holders of its Series C Preferred to redeem the Series C Preferred upon the
occurrence of a Change in Control (as defined in the Certificate of Designation
relating to the Series C Preferred).
"Change of Control Date" has the meaning provided in Section 4.15.
----------------------
"Common Stock" means the common stock, par value $0.01 per share, of the
------------
Company.
"Company" means the Person named as the "Company" in the first paragraph of
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this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Company Request" or "Company Order" means a written request or order
--------------- -------------
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President, a Vice President or its Treasurer, and by
its Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Component Currency" has the meaning provided in Section 2.17.
------------------
"Consolidated Indebtedness" means, with respect to any Person as of any
-------------------------
date of determination, the sum, without duplication, of (i) the total amount of
Indebtedness of such Person and its Restricted
3
Subsidiaries, plus (ii) the total amount of Indebtedness of any other Person, to
the extent that such Indebtedness has been Guaranteed by the referent Person or
one or more of its Restricted Subsidiaries, plus (iii) the aggregate liquidation
value of all Disqualified Stock of such Person and all preferred stock of
Restricted Subsidiaries of such Person (other than, in the case of the Company,
preferred stock of a Restricted Subsidiary of the Company held by the Company or
a Guarantor), in each case, determined on a consolidated basis in accordance
with GAAP.
"Consolidated Leverage Ratio" means, with respect to any Person, as of any
---------------------------
date of determination, the ratio of (i) the Consolidated Indebtedness of such
Person as of such date, excluding, however, all Hedging Obligations that
constitute Permitted Debt, to (ii) the Consolidated Net Worth of such Person as
of such date.
"Consolidated Net Income" means, with respect to any Person for any period,
-----------------------
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
(for such period, on a consolidated basis, determined in accordance with GAAP);
provided that (i) the Net Income (but not loss) of any Person that is not a
--------
Restricted Subsidiary of such Person or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash to the referent Person or a Wholly-Owned
Restricted Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary
of such Person shall be excluded to the extent that the declaration or payment
of dividends or similar distributions by that Restricted Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, (iii) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded, and (iv) the cumulative effect of a
change in accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of any date,
----------------------
the sum of (i) the consolidated equity of the common stockholders of such Person
and its consolidated Subsidiaries as of such date plus (ii) the respective
amounts reported on such Person's balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends (other than dividends paid solely in
Equity Interests (other than Disqualified Stock)) unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the Issue Date in the book value of any asset
owned by such Person or a consolidated Restricted Subsidiary of such Person, and
(y) all unamortized debt discount and expense and unamortized deferred financing
charges as of such date, all of the foregoing determined in accordance with
GAAP.
"Conversion Date" has the meaning provided in Section 2.17.
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"Conversion Event" means the cessation of use of (i) a Foreign Currency
----------------
both by the issuer of such currency and for the settlement of transactions by a
central bank or other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities or (iii) any currency unit other than the ECU for the purposes for
which it was established.
"Corporate Trust Office of the Trustee" means the principal office of the
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Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of original
4
execution of this Indenture is located at 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust Administration.
"Credit Agreement" means the Credit Facility, together with the related
----------------
documents thereto (including, without limitation, any guarantee agreements and
security documents), in each case as such agreements may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified from
time to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring, in whole or in part (including, without
limitation, increasing the amount of available borrowings thereunder (provided
--------
that such increase in borrowings is permitted by Section 4.05), or adding
Restricted Subsidiaries of the Company as additional borrowers or guarantors
thereunder to the extent permitted by this Indenture), all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders and whether
in the form of a revolving credit facility or a term loan facility or any
combination thereof.
"Credit Facility" means the Amended and Restated Credit Agreement dated as
---------------
of June 30, 1998 among the Company, the Lenders named therein, Nationsbank,
N.A., as Syndication Agent, Deutsche Bank, as Documentation Agent, U.S. Bank
National Association, as Documentation Agent, Barclays Bank PLC, as Co-Agent,
Bank of America National Trust and Savings Association, as Co-Agent, and The
Chase Manhattan Bank, as Administrative Agent.
"Currency Unit" or "currency unit" for all purposes of this Indenture shall
------------- -------------
mean any composite currency.
"Custodian" has the meaning provided in Section 6.01.
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"Default" means any event that is or with the passage of time or the giving
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of notice or both would be an Event of Default.
"Depository" means, with respect to the Securities of or within any series
----------
issuable or issued in whole or in part in global form, The Depository Trust
Company or another Person designated as Depository by the Company, which shall
be a clearing agency registered under the Exchange Act.
"Direct Merchants Bank" means Direct Merchants Credit Card Bank, N.A., a
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national banking association, and a wholly-owned Subsidiary of the Company.
"Disqualified Stock" means any Capital Stock that, either (A) by its terms
------------------
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event (other than under
circumstances that would constitute a Change of Control), matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the Holder thereof, in whole or in part, on or
prior to the date that is 91 days after the date on which the Securities mature
or (B) is designated by the Company (in a Board Resolution of the Company
delivered to the Trustee) as Disqualified Stock.
"Dollar" means the currency of the United States as at the time of payment
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is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
---
time by the Council of the European Communities.
"Election Date" has the meaning provided in Section 2.17.
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5
"Equity Interests" means Capital Stock and all warrants, options or other
----------------
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"European Communities" means the European Economic Community, the European
--------------------
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
------------------------
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning provided in Section 6.01.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations promulgated by the SEC thereunder.
"Exchange Rate Agent" means, when used with respect to Securities of or
-------------------
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 2.02, a bank designated pursuant to Section 2.02 or 2.18
(which may include any such bank acting as Trustee hereunder).
"Exchange Rate Officer's Certificate" means a certificate setting forth (i)
-----------------------------------
the applicable Market Exchange Rate or the applicable bid quotation and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount in the relevant currency or currency
unit), payable with respect to a Security of any series on the basis of such
Market Exchange Rate or the applicable bid quotation, signed by the Chief
Financial Officer, the Treasurer, the Controller, any Vice President or the
Assistant Treasurer of the Company.
"Expiration Date" has the meaning set forth in the definition of "Offer to
---------------
Purchase."
"Fair Market Value" means, with respect to any asset, the price (after
-----------------
taking into account any liabilities relating to such assets) which could be
negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction; provided, however, that the Fair Market
-------- -------
Value of any such asset or assets shall be determined conclusively by the Board
of Directors of the Company acting in good faith, and shall be evidenced by
Board Resolutions of the Company delivered to the Trustee.
"Foreign Currency" means any currency issued by the government of one or
----------------
more countries other than the United States or by any recognized confederation
or association of such governments.
"Funding Guarantor" has the meaning provided in Section 10.05.
-----------------
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date and consistently applied.
"Guarantee" means a guarantee (other than by endorsement of negotiable
---------
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
6
"Guarantors" means each of (i) Metris Direct, Inc. and (ii) any other
----------
Restricted Subsidiary of the Company that executes a Subsidiary Guarantee in
accordance with the provisions of this Indenture, and their respective
successors and assigns.
"Hedging Obligations" means, with respect to any Person, the obligations of
-------------------
such Person under (i) interest rate or currency swap agreements, interest rate
cap agreements and interest rate or currency collar agreements and related
agreements and (ii) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates, currencies and commodities in the
ordinary course of business.
"Holders" means, with respect to a Bearer Security, the bearer thereof or
-------
of a coupon appertaining thereto and, with respect to a Registered Security, the
person in whose name the Security is registered on the Register.
"incur" has the meaning set forth in Section 4.05.
-----
"Indebtedness" means, without duplication, with respect to any Person, any
------------
indebtedness of such Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability upon
a balance sheet of such Person prepared in accordance with GAAP, as well as all
indebtedness of others secured by a Lien (except Liens on Receivables and other
assets (including spread accounts relating to a Securitization) incurred in
connection with a Securitization) on any asset of such Person (whether or not
such indebtedness is assumed by such Person and the value thereof being the
lesser of the amount of such indebtedness so secured and the Fair Market Value
of such asset that has a Lien placed upon it) and, to the extent not otherwise
included, the Guarantee by such Person of any indebtedness of any other Person.
Notwithstanding the foregoing, the term "Indebtedness" shall not include (i)
obligations pursuant to representations, warranties, covenants and indemnities
or payments to owners of beneficial interests in Receivables, in each case in
connection with a Securitization, (ii) deposit liabilities of any Restricted
Subsidiary of the Company, the deposits of which are insured by any governmental
regulatory agency or any successor thereto or (iii) guarantees related to the
fulfillment of the Company's obligations to bank card associations in the
ordinary course of business. The amount of any Indebtedness outstanding as of
any date shall be (i) the accreted value thereof, in the case of any
Indebtedness that does not require current payments of interest, and (ii) the
principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time to
---------
time.
"Indexed Security" means a Security the terms of which provide that the
----------------
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest" means, when used with respect to an Original Issue Discount
--------
Security which by its terms bears interest only after Maturity, interest payable
after Maturity.
"Interest Payment Date" means, when used with respect to any Security, the
---------------------
Stated Maturity of an installment of interest on such Security.
7
"Interest Record Date" for the interest payable on any Interest Payment
--------------------
Date (except a date for payment of defaulted interest) on the Securities of or
within any series means the date specified for that purpose (whether or not a
Business Day) as contemplated by Section 2.02.
"Investment Grade Rating" means (i) with respect to Standard & Poor's, any
-----------------------
of the categories from and including AAA to and including BBB- (or equivalent
successor categories) and (ii) with respect to Moody's, any of the categories
from and including Aaa to and including Baa3 (or equivalent successor
categories).
"Investments" means, with respect to any Person, all investments by such
-----------
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Restricted Subsidiary of the Company, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the book value of the Equity Interests of such Restricted
Subsidiary not sold or disposed of in an amount determined as provided in the
final paragraph of Section 4.09.
"Issue Date" means, when used with respect to any Security, the date on
----------
which such Security is issued, authenticated and delivered under this Indenture.
"Judgment Date" has the meaning provided in Section 6.12.
-------------
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any agreement to give a security interest in and any filing
of or agreement to give any financing statement, as debtor, under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction, other than to
reflect ownership by a third party of property leased to the Company or any
Restricted Subsidiary under a lease which is not in the nature of a conditional
sale or title retention agreement).
"Market Exchange Rate" means, unless otherwise specified with respect to
--------------------
any Securities pursuant to Section 2.02, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 2.02 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in New York City, London or any other principal market
for Dollars or such purchased Foreign Currency, in each case determined by the
Exchange Rate Agent. Unless otherwise specified with respect to any Securities
pursuant to Section 2.02, in the event of the unavailability of any of the
exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the
Exchange Rate Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve
8
Bank of New York as of the most recent available date, or quotations from one or
more major banks in New York City, London or other principal market for such
currency or currency unit in question (which may include any such bank acting as
Trustee under this Indenture), or such other quotations as the Exchange Rate
Agent shall deem appropriate. If there is more than one market for dealing in
any currency or currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such currency or currency unit
shall be that upon which a nonresident issuer of securities designated in such
currency or currency unit would purchase such currency or currency unit in order
to make payments in respect of such securities.
"Maturity" means, when used with respect to any Security, the date on which
--------
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
-------
"Net Cash Proceeds" means the aggregate cash proceeds received by the
-----------------
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be applied to
the repayment of Indebtedness secured by a Lien on the asset or assets that were
the subject of such Asset Sale, a defeasance of a Securitization and any reserve
for adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP.
"Net Income" means, with respect to any Person, the net income (loss) of
----------
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain (but
not loss), together with any related provision for taxes on such extraordinary
or nonrecurring gain (but not loss).
"Obligations" means any principal, interest, penalties, fees,
-----------
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offer" has the meaning set forth in the definition of "Offer to Purchase."
-----
"Offer to Purchase" means a written offer (the "Offer") sent by or on
----------------- -----
behalf of the Company by first-class mail, postage prepaid, to each Holder at
his address appearing in the register for the Securities on the date of the
Offer offering to purchase up to the principal amount of Securities specified in
such Offer at the purchase price specified in such Offer (as determined pursuant
to this Indenture). Unless otherwise required by applicable law, the Offer
shall specify an expiration date (the "Expiration Date") of the Offer to
---------------
Purchase, which shall be not less than 20 Business Days nor more than 60 days
after the date of such Offer, and a settlement date (the "Purchase Date") for
-------------
purchase of Securities to occur no later than five Business Days after the
Expiration Date. The Company shall notify the Trustee at least 15 Business Days
(or such shorter period as is acceptable to the Trustee) prior to the mailing of
the Offer of the Company's obligation to make an Offer to Purchase, and the
Offer shall be mailed by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. The Offer shall
9
contain all the information required by applicable law to be included therein.
The Offer shall also contain information concerning the business of the Company
and its Subsidiaries which the Company in good faith believes will enable such
Holders to make an informed decision with respect to the Offer to Purchase
(which at a minimum will include (i) the most recent annual and quarterly
financial statements and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" contained in the documents required to be
filed with the Trustee pursuant to this Indenture (which requirements may be
satisfied by delivery of such documents together with the Offer), (ii) a
description of material developments in the Company's business subsequent to the
date of the latest of such financial statements referred to in clause (i)
(including a description of the events requiring the Company to make the Offer
to Purchase), (iii) if applicable, appropriate pro forma financial information
concerning the Offer to Purchase and the events requiring the Company to make
the Offer to Purchase and (iv) any other information required by applicable law
to be included therein). The Offer shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Offer to
Purchase. The Offer shall also state: (1) the Section of this Indenture pursuant
to which the Offer to Purchase is being made; (2) the Expiration Date and the
Purchase Date; (3) the aggregate principal amount of the outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to this Section of this Indenture requiring the Offer to
Purchase) (the "Purchase Amount"); (4) the purchase price to be paid by the
---------------
Company for each $1,000 aggregate principal amount of Securities accepted for
payment (as specified pursuant to this Indenture) (the "Purchase Price"); (5)
--------------
that the Holder may tender all or any portion of the Securities registered in
the name of such Holder and that any portion of a Security tendered must be
tendered in an integral multiple of $1,000 principal amount; (6) the place or
places where Securities are to be surrendered for tender pursuant to the Offer
to Purchase; (7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue; (8) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date; (9) that each Holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase will be required to surrender such
Security at the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Security being, if the Company or the
Trustee so requires, duly endorsed by, or accompanied by 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); (10) that each
Holder will be entitled to withdraw all or any portion of any Securities
tendered by such Holder if the Company (or its Paying Agent) receives, not later
than the close of business on the fifth Business Day next preceding the
Expiration Date, a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of the Security such Holder
tendered, the certificate number of the Security such Holder tendered and a
statement that such Holder is withdrawing all or a portion of his tender; (11)
that (a) if Securities in an aggregate principal amount less than or equal to
the Purchase Amount are duly tendered and not withdrawn pursuant to the Offer to
Purchase, the Company shall purchase all such Securities and (b) if Securities
in an aggregate principal amount in excess of the Purchase Amount are tendered
and not withdrawn pursuant to the Offer to Purchase, the Company shall purchase
Securities having an aggregate principal amount equal to the Purchase Amount on
a pro rata basis (with such adjustments as may be deemed appropriate so that
only Securities in denominations of $1,000 principal amount or integral
multiples thereof shall be purchased); and (12) that in the case of any Holder
whose Security is purchased only in part, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and in
exchange for the unpurchased portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in accordance with
the provisions above pertaining to any Offer.
10
"Officer" means, with respect to the Company or any Guarantor, the
-------
Chairman, any Vice Chairman, the President, any Vice President, the Chief
Financial Officer, the Treasurer or the Secretary of the Company or such
Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by two Officers or by an
---------------------
Officer and an Assistant Treasurer or Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion from legal counsel. The
------------------
counsel may be an employee of or counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides for an
--------------------------------
amount less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.02.
"Participants" has the meaning provided in Section 2.16.
------------
"Paying Agent" has the meaning provided in Section 2.04.
------------
"Periodic Offering" means an offering of Securities of a series from time
-----------------
to time the specific terms of which Securities, including, without limitation,
the rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company
upon the issuance of such Securities.
"Permitted Holder" means the Xxxxxx X. Xxx Company and any of its
----------------
Affiliates.
"Permitted Investments" means (a) any Investment in the Company or in a
---------------------
Wholly-Owned Restricted Subsidiary of the Company; (b) any Investment in Cash
Equivalents; (c) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of such Investment (i) such Person
becomes a Wholly-Owned Restricted Subsidiary of the Company or (ii) such Person
is merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Wholly-Owned Restricted Subsidiary of the Company; (d) any Restricted Investment
made as a result of the receipt of non-cash consideration from an Asset Sale
that was made pursuant to and in compliance with Section 4.08; (e) any
acquisition of assets solely in exchange for the issuance of Equity Interests
(other than Disqualified Stock) of the Company; (f) Investments by the Company
or any of its Restricted Subsidiaries in the ordinary course of business in
connection with or arising out of Securitizations; (g) Hedging Obligations of
the Company and its Restricted Subsidiaries entered into in the ordinary course
of business; (h) any existing Investment by a Person which merges with the
Company or becomes a Wholly-Owned Restricted Subsidiary of the Company in a
transaction permitted by this Indenture and (i) other Investments by the Company
or any of its Restricted Subsidiaries in any Person (other than an Affiliate of
the Company that is not also a Restricted Subsidiary of the Company) that do not
exceed $10.0 million in the aggregate at any one time outstanding (measured as
of the date made and without giving effect to subsequent changes in value).
"Permitted Liens" means (i) Liens existing on the Issue Date; (ii) Liens to
---------------
secure borrowings under the Credit Agreement; (iii) Liens on Receivables,
related contract rights, collections on Receivables and the proceeds of all such
property incurred in connection with Securitizations or permitted Guarantees
thereof; (iv) Liens on property of a Person existing at the time such Person is
merged into or consolidated with the Company or any Restricted Subsidiary of the
Company; provided that such Liens were in existence prior to the contemplation
--------
of such merger or consolidation and do not extend to any assets other than those
of the Person merged into or consolidated with the Company or such Restricted
Subsidiary; (v)
11
Liens on property existing at the time of acquisition thereof by the Company or
any Restricted Subsidiary of the Company; provided that such Liens were in
--------
existence prior to the contemplation of such acquisition; (vi) Liens securing
Purchase Money Indebtedness permitted to be incurred under this Indenture and
incurred in the ordinary course of business; provided, however, that any such
-------- -------
Lien may not extend to any other property owned by the Company or any of its
Restricted Subsidiaries at the time the Lien is incurred, and the Indebtedness
secured by the Lien may not be incurred more than 180 days after the latter of
the acquisition or completion of construction of the property subject to the
Lien; provided, further, that the amount of Indebtedness secured by such Liens
-------- -------
does not exceed the Fair Market Value of the property purchased or constructed
with the proceeds of such Indebtedness; (vii) Liens to secure any Permitted
Refinancing Indebtedness incurred to refinance any Indebtedness secured by any
Lien referred to in the foregoing clauses (i) through (vi); provided, however,
-------- -------
that such new Lien shall be limited to all or part of the same property that
secured the original Lien and the Indebtedness secured by such Lien at such time
is not increased to any amount greater than the outstanding principal amount or,
if greater, committed amount of the Indebtedness described under clauses (i)
through (vi), as the case may be, at the time the original Lien became a
Permitted Lien; (viii) Liens in favor of the Company or a Guarantor; (ix) Liens
incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations that do not exceed $25.0
million in the aggregate at any one time outstanding; (x) Liens to secure the
performance of statutory obligations, surety or appeal bonds, performance bonds
or other obligations of a like nature incurred in the ordinary course of
business (including, without limitation, lessor Liens on leased assets); (xi)
Liens securing Capital Lease Obligations permitted to be incurred under this
Indenture and incurred in the ordinary course of business; (xii) Liens for
taxes, assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided that any reserve or other
--------
appropriate provision as shall be required in conformity with GAAP in existence
at such time shall have been made therefor and (xiii) certain Liens consisting
of restrictions on the use of real property which do not materially interfere
with the property's use.
"Permitted Refinancing Indebtedness" means any Indebtedness or Disqualified
----------------------------------
Stock of the Company or any of its Restricted Subsidiaries issued in exchange
for, or the net proceeds of which are used to extend, refinance, renew, replace,
defease, redeem or refund other Indebtedness or Disqualified Stock of the
Company or any of its Restricted Subsidiaries (other than intercompany
Indebtedness); provided that: (i) the principal amount (or accreted value, if
--------
applicable) or liquidation value of such Permitted Refinancing Indebtedness does
not exceed the principal amount of (or accreted value, if applicable) or
liquidation value, plus accrued interest or dividends on, the Indebtedness so
extended, refinanced, renewed, replaced, defeased, redeemed or refunded (plus
the amount of any redemption premium, prepayment penalty and reasonable expenses
incurred in connection therewith); (ii) such Permitted Refinancing Indebtedness
has a final maturity date or redemption date, as the case may be, later than the
final maturity date or redemption date, as the case may be, of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased, redeemed or refunded; (iii) if the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded is subordinated in
right of payment to the Securities, such Permitted Refinancing Indebtedness has
a final maturity date later than the final maturity date of, and is subordinated
in right of payment to, the Securities on terms at least as favorable to the
holders of Securities as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and (iv) such Indebtedness or Disqualified Stock is incurred or
issued, as the case may be, either by the Company or by the Restricted
Subsidiary who is the obligor or issuer, as the case may be, on the Indebtedness
or Disqualified Stock being extended, refinanced, renewed, replaced, defeased,
redeemed or refunded.
"Person" means an individual, partnership, corporation, limited liability
------
company, unincorporated organization, trust, joint venture, or a governmental
agency or political subdivision thereof.
12
"Physical Securities" means one or more certificated Securities in
-------------------
registered form.
"Principal Amount" means, when used with respect to any Security, the
----------------
amount of principal, if any, payable in respect thereof at Maturity; provided,
--------
however, that when used with respect to an Indexed Security in any context other
-------
than the making of payments at Maturity, "principal amount" means the principal
face amount of such Indexed Security at original issuance.
"Purchase Amount" has the meaning set forth in the definition of "Offer to
---------------
Purchase."
"Purchase Date" has the meaning set forth in the definition of "Offer to
-------------
Purchase."
"Purchase Money Indebtedness" means Indebtedness of the Company and its
---------------------------
Restricted Subsidiaries incurred in the ordinary course of business for the
purpose of financing all or any part of the purchase price, or the cost of
installation, construction or improvement, of property or equipment.
"Purchase Price" has the meaning set forth in the definition of "Offer to
--------------
Purchase."
"Rating Agencies" means (i) Standard & Poor's and (ii) Xxxxx'x.
---------------
"Receivables" means credit card, consumer or commercial loans that are
-----------
purchased or originated in the ordinary course of business by the Company or any
Subsidiary of the Company.
"Redemption Date," when used with respect to any Security to be redeemed,
---------------
means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
----------------
in whole or in part, means the price fixed for such redemption pursuant to this
Indenture.
"Register" has the meaning provided in Section 2.04.
--------
"Registered Security" means any Security issued hereunder and registered as
-------------------
to principal and interest in the Register.
"Registrar" has the meaning provided in Section 2.04.
---------
"Restricted Investment" means any Investment other than a Permitted
---------------------
Investment.
"Restricted Payment" has the meaning provided in Section 4.09.
------------------
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
---------------------
Person that is not an Unrestricted Subsidiary.
"SEC" or "Commission" means the Securities and Exchange Commission.
--- ----------
"Security" or "Securities" means a Security or Securities of the Company
-------- ----------
issued, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated by the SEC thereunder.
"Security Guarantee" means the Form of Security Guarantee of each Guarantor
------------------
to be endorsed on each of the Securities in the form of Exhibit A.
---------
13
"Securitization" means any transaction or series of transactions that have
--------------
been or may be entered into by the Company or any of its Subsidiaries in
connection with or reasonably related to a transaction or series of transactions
in which the Company or any of its Subsidiaries may sell, convey or otherwise
transfer, directly or indirectly, to (i) a Securitization Entity or (ii) any
other Person, or may grant a security interest in, any Receivables or any
interests in such Receivables (whether such Receivables are then existing or
arising in the future) and any assets related thereto including, without
limitation, all security interests in any collateral relating thereto, the
proceeds of such Receivables, and other assets which are customarily sold or in
respect of which security interests are customarily granted in connection with
securitization transactions involving such assets.
"Securitization Entity" means any Person (whether or not a Subsidiary of
---------------------
the Company) established and maintained exclusively for one or more of the
following purposes: (i) purchasing or otherwise acquiring Receivables (together
with any assets related to such Receivables, including, without limitation, all
collateral securing such Receivables, all contracts and all Guarantees or other
obligations in respect of such Receivables, proceeds of such Receivables and
other assets which are customarily transferred in connection with asset
securitization transactions involving Receivables) in connection with a
Securitization, (ii) selling such Receivables (and related assets) to a special
purpose owner trust or other Person in connection with a Securitization, (iii)
issuing asset-backed securities, or beneficial interests in Receivables, (iv)
serving as a corporate general partner (or managing member of a limited
liability company) of another Securitization Entity, (v) investing in and
holding Investments in Securitization Entities issuing securities backed by
Receivables, or (vi) engaging in activities that are incidental to and
necessary, suitable or convenient for the accomplishment of the purposes
specified above, provided, however, that the obligations of such Securitization
-------- -------
Entity are without recourse to the Company and any Restricted Subsidiary of the
Company other than such Securitization Entity. For purposes of this definition,
"without recourse" shall mean that the Indebtedness of such Securitization
Entity and none of the other obligations (contingent or otherwise) of a
Securitization Entity (i) is guaranteed by the Company or any other Restricted
Subsidiary of the Company, (ii) obligates the Company or any other Restricted
Subsidiary of the Company in any way other than pursuant to representations,
warranties, covenants (including any covenant to deliver Receivables in a pre-
funded Securitization) and indemnities entered into in connection with a
Securitization, or (iii) subjects any property or asset of the Company or any
Restricted Subsidiary of the Company other than such Securitization Entity,
directly or indirectly, contingently or otherwise, to the satisfaction thereof,
other than pursuant to representations, warranties, covenants and indemnities
entered into in connection with a Securitization. For purposes of the foregoing,
a Permitted Investment in a Securitization Entity shall not be deemed recourse.
"Series C Preferred" means the Series C Perpetual Convertible Preferred
------------------
Stock, par value $.01 per share, of the Company.
"Significant Subsidiary" means any Restricted Subsidiary of the Company
----------------------
that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date hereof.
"Specified Senior Indebtedness" means (i) the Indebtedness of any Person,
-----------------------------
whether outstanding on the Issue Date or thereafter incurred, and (ii) accrued
and unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to such Person to the
extent post filing interest is allowed in such proceeding) in respect of (A)
Indebtedness of such Person for money borrowed and (B) Indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable unless, in the case of either clause (i) or
(ii), in the instrument creating or evidencing the same pursuant to which the
same is outstanding, it is provided that such obligations are subordinate in
--------
right of payment to the Securities; provided, however, that Specified Senior
-------- -------
Indebtedness shall not include (1) any obligation of such Person to any
Subsidiary
14
of such Person, (2) any liability for Federal, state, local or other taxes owed
or owing by such Person, (3) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including Guarantees
thereof or instruments evidencing such liabilities), (4) any obligations in
respect of Capital Stock of such Person or (5) that portion of any Indebtedness
which at the time of incurrence is incurred in violation of this Indenture.
"Standard and Poor's" means Standard & Poor's Rating Services, a division
-------------------
of the XxXxxx-Xxxx Companies, Inc. and its successors.
"Stated Maturity" means (i) when used with respect to any Security or any
---------------
installment of principal thereof or interest thereon, the date specified on such
Security or on a coupon representing such installment of interest as the fixed
date on which the principal of such Security or such installment of principal or
interest is due and payable and (ii) when used with respect to any installment
of interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) any corporation,
----------
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof).
"Subsidiary Guarantees" means the guarantee of the Securities by the
---------------------
Guarantors under Article Ten.
"Substitute Date" has the meaning provided in Section 6.12.
---------------
"Surviving Person" means the Person formed by or surviving a transaction
----------------
permitted by Section 5.01 or the Person to which a sale, assignment, transfer,
lease, or conveyance or other disposition is made in a transaction permitted by
Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
---
77aaa-77bbbb), as amended, as in effect on the date of this Indenture (except as
provided in Section 9.03).
"Trust Officer" means any officer within the corporate trust department (or
-------------
any successor group of the Trustee) including any vice president, assistant vice
president, assistant secretary or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at that time shall be such officers, and also means, with respect to
a particular corporate trust matter, any other officer to whom such trust matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Trustee" means the party named as such in the first paragraph of this
-------
Indenture until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means such successor.
"United States Government Obligations" means direct non-callable
------------------------------------
obligations of the United States of America for the payment of which the full
faith and credit of the United States is pledged.
15
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that is
-----------------------
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary: (a) has not at the time of designation, and does not thereafter,
create, incur, assume, guarantee or otherwise become directly or indirectly
liable with respect to any Indebtedness pursuant to which the lender thereof has
recourse to any of the assets of the Company or any of its Restricted
Subsidiaries; (b) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company; (c) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and (d) has not otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of its
Restricted Subsidiaries. Any such designation by the Board of Directors of the
Company shall be evidenced to the Trustee by filing with the Trustee a certified
copy of the Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions and was permitted by Section 4.09. If, at any time, any Unrestricted
Subsidiary would fail to meet the foregoing requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of the Company as of such date
(and, if such Indebtedness is not permitted to be incurred as of such date under
Section 4.05, the Company shall be in default under Section 4.05). The Board of
Directors of the Company may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that such designation shall be deemed to
--------
be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of
any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is permitted under
the Consolidated Leverage Ratio test set forth in the first paragraph of Section
4.05, and (ii) no Default or Event of Default would be in existence following
such designation.
"Unutilized Net Cash Proceeds" has the meaning provided in Section 4.08.
----------------------------
"U.S. Person" means, unless otherwise specified with respect to the
-----------
Securities of any series as contemplated by Section 2.02, a citizen, national or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Valuation Date" has the meaning provided in Section 2.17.
--------------
"Voting Stock" of any Person as of any date means the Capital Stock of such
------------
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
---------------------------------
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly-Owned Restricted Subsidiary" of any Person means a Restricted
----------------------------------
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors'
16
qualifying shares) shall at the time be owned by such Person or by one or more
Wholly-Owned Restricted Subsidiaries of such Person.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" means the Company or any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles in effect from
time to time, and any other reference in this Indenture to "generally accepted
accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Forms Generally.
The Securities of each series and the coupons, if any, to be attached
thereto shall be in substantially such form as shall be established by or
pursuant to a Board Resolution of the Company or in
17
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such notations, legends or endorsements placed thereon as may
be required by law, stock exchange rule or usage or as may, consistently
herewith, be determined by the officers executing such Securities and coupons,
if any, as evidenced by their execution of the Securities and coupons, if any.
If temporary Securities of any series are issued as permitted by Section 2.11,
the form thereof also shall be established as provided in the preceding
sentence. If the forms of Securities and coupons, if any, of any series are
established by, or by action taken pursuant to, a Board Resolution, a copy of
the Board Resolution together with an appropriate record of any such action
taken pursuant thereto, including a copy of the approved form of Securities or
coupons, if any, shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 2.03 for the authentication and delivery
of such Securities.
Unless otherwise specified as contemplated by Section 2.02, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produces in any
other manner, all as determined by the officers executing such Securities and
coupons, if any, as evidenced by their execution of such Securities and coupons,
if any.
Each Security shall have an executed Subsidiary Guarantee from each of the
Guarantors endorsed thereon substantially in the form set forth in Exhibit A.
---------
SECTION 2.02. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued from time to time in one or more series.
(b) The following matters shall be established with respect to each series
of Securities issued hereunder (i) by a Board Resolution, (ii) by action taken
pursuant to a Board Resolution and (subject to Section 2.03) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (which limit shall not pertain to Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or
in lieu of, other securities of the series pursuant to Sections 2.07,
2.08, 2.11, 3.07 or 9.05);
(3) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method of calculating such rate or rates
of interest, the date or dates from which such interest shall accrue
or the method by which such date or dates shall be determined, the
Interest Payment Dates on which any such interest shall be payable
and, with respect to
18
Registered Securities, the Interest Record Date, if any, for the
interest payable on any Registered Security on any Interest Payment
Date;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable;
(6) the right, if any, of the Company to defer payment of interest on
the Securities, as the maximum length of any such deferral period and
any related terms, conditions or covenants;
(7) the period or periods within which, the price or prices at which,
the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of
the series may be redeemed, in whole or in part, at the option of the
Company and, if other than as provided in Section 3.03, the manner in
which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option
of a Holder thereof and the period or periods within which, the price
or prices at which, and the other terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, if Registered Securities, and if other than the denomination
of $5,000 and any integral multiple thereof, if Bearer Securities, the
denominations in which Securities of the series shall be issuable;
(10) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any,
and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of the series shall be
denominated, and the particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the provisions of
Section 2.17;
(11) if the payments of principal of, premium, if any, or interest, if
any, on the Securities of the series are to be made, at the election
of the Company or a Holder, in a currency or currencies (including
currency unit or units) other than that in which such Securities are
denominated or designated to be payable, the currency or currencies
(including currency unit or units) in which such payments are to be
made, the terms and conditions of such payments and the manner in
which the exchange rate with respect to such payments shall be
determined, and the particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the provisions of
Section 2.17;
(12) if the amount of payments of principal of, premium, if any, and
interest, if any, on the Securities of the series shall be determined
with reference to an index, formula or other method (which index,
formula or method may be based, without limitation, on a currency or
currencies (including currency unit or units) other than that in which
the Securities of the series are denominated or designated to be
payable), the index, formula or other method by which such amounts
shall be determined;
19
(13) if other than the principal amount thereof, the portion of the
principal amount of such Securities of the series which shall be
payable upon declaration of acceleration thereof pursuant to Section
6.02 or the method by which such portion shall be determined;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(15) if other than as provided in Section 2.13, the Person to whom any
interest on any Registered Security of the series shall be payable and
the manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable;
(16) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(17) any deletions from, modifications of or additions to the Events
of Default set forth in Section 6.01 or covenants of the Company set
forth in Article IV pertaining to the Securities of the series;
(18) under what circumstances, if any, the Company will pay additional
amounts on the Securities of that series held by a Person who is not a
U.S. Person in respect of taxes or similar charges withheld or
deducted ("Additional Amounts") and, if so, whether the Company will
------------------
have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(19) the terms of any right to convert or exchange Securities of the
series, either at the option of the holder thereof or the Company,
into or for other securities or property, including, without
limitation, the period or periods within which and the price or prices
at which any Securities of the series shall be converted or exchanged,
in whole or in part;
(20) whether Securities of the series shall be issuable as Registered
Securities or Bearer Securities (with or without interest coupons), or
both, and any restrictions applicable to the offering, sale or
delivery of Bearer Securities and, if other than as provided in
Section 2.07, the terms upon which Bearer Securities of a series may
be exchanged for Registered Securities of the same series and vice
versa;
(21) the date as of which any Bearer Securities of the series and any
temporary Security in global form representing outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(22) the forms of the Securities and coupons, if any, of the series;
(23) the applicability, if any, to the Securities of or within the
series of Section 8.02, or such other means of defeasance or covenant
defeasance as may be specified for the Securities and coupons, if any,
of such series;
(24) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(25) the designation of the initial Exchange Rate Agent, if any;
20
(26) if the Securities of the series shall be issued in whole or in
part in global form (i) the Depository for such global Securities (if
other than The Depository Trust Company), (ii) the form of any legend
in addition to or in lieu of that in Exhibit B hereto which shall be
---------
borne by such global Security, (iii) whether beneficial owners of
interests in any Securities of the series in global form may exchange
such interests for certificated Securities of such series and of like
tenor of any authorized form and nomination, and (iv) if other than as
provided in Section 2.16, the circumstances under which any such
exchange may occur; and
(27) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) including any
terms which may be required by or advisable under United States laws
or regulations or advisable (as determined by the Company) in
connection with the marketing of Securities of the series.
(c) All Securities of any one series and coupons, if any, appertaining to
any Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided (i) by a Board Resolution, (ii) by action taken pursuant
to a Board Resolution and (subject to Section 2.03) set forth or determined in
the manner provided in the related Officers' Certificate or (iii) in an
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
(d) If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of such Board Resolution
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the Securities of such series, and an appropriate record of any action taken
pursuant thereto in connection with the issuance of any Securities of such
series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
SECTION 2.03. Execution, Authentication, Delivery and Dating.
Two Officers shall sign, or one Officer shall sign and one Officer (each of
whom shall, in each case, have been duly authorized by all requisite corporate
actions) of the Company or a Guarantor, as the case may be, shall attest to, the
Securities for the Company, and the Subsidiary Guarantees for the Guarantors, by
manual or facsimile signature. The coupons, if any, of Bearer Securities shall
bear the facsimile signature of two Officers.
If an Officer whose signature is on a Security or a Subsidiary Guarantee,
as the case may be, was an Officer at the time of such execution but no longer
holds that office at the time the Trustee authenticates the Security or
Subsidiary Guarantee, as the case may be, the Security or Subsidiary Guarantee,
as the case may be, shall be valid nevertheless.
At any time and from time to time, the Company may deliver Securities,
together with any coupons appertaining thereto, 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 shall authenticate and deliver such Securities; provided,
--------
however, that in the case of Securities offered in a Periodic Offering, the
-------
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including, without limitation, the
receipt by the Trustee of oral or electronic instructions from the Company or
its duly authorized agents, promptly confirmed in writing) acceptable to the
Trustee as may be specified by or pursuant to a
21
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series.
If the form or terms of the Securities of a series have been established by
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 shall be entitled to receive, and (subject to TIA (S)(S) 315(a) through
(d)) shall be fully protected in relying upon, an Opinion of Counsel stating:
(1) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 2.01, that such forms have been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 2.02, that such terms have been, or in the case of Securities
of a series offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture, subject in the case
of Securities offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and
(3) that such Securities together with any coupons appertaining
thereto, 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 legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles and except further as
enforcement thereof may be limited by (A) requirements that a claim
with respect to any Securities denominated other than in Dollars (or a
Foreign Currency or currency unit judgment in respect of such claim)
be converted into Dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments in Foreign Currencies
or currency units or payments outside the United States.
Notwithstanding that such form or terms have been so established, the
Trustee shall have the right to decline to authenticate such Securities if, in
the written opinion of counsel to the Trustee (which counsel may be an employee
of the Trustee) reasonably acceptable to the Company, the issue of such
Securities pursuant to this Indenture will adversely affect the Trustee's own
rights, duties or immunities under this Indenture or otherwise in a manner which
is not reasonably acceptable to the Trustee. Notwithstanding the generality of
the foregoing, the Trustee will not be required to authenticate Securities
denominated in a Foreign Currency if the Trustee reasonably believes that it
would be unable to perform its duties with respect to such Securities.
Notwithstanding the provisions of Section 2.02 and of the two preceding
paragraphs, if all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 2.02 or the Company Order and Opinion of Counsel
otherwise required pursuant to the two preceding paragraphs in connection with
the authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
22
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Company of any of such
securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.01 and 2.02 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 2.02 that the Securities
of a series are to be issued in whole or in part in global form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
the Company Order with respect to such series, authenticate and deliver one or
more Securities of such series in global form that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of the
outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depository for such Security or Securities in global form or
the nominee of such Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instruction and (iv) shall bear the
legends set forth in Exhibit B hereto and the terms of the Board Resolution or
---------
supplemental indenture relating to such series.
Each Depository designated pursuant to Section 2.02 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depository, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation. The Trustee shall
have no responsibility to determine if the Depository is so registered. Each
Depository shall enter into an agreement with the Trustee and the Company
governing the respective duties and rights of such Depository, the Company and
the Trustee with regard to Securities issued in global form.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 2.02.
No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until an
authorized signatory of the Trustee manually executes the certificate of
authentication on the Security, which shall be substantially in the following
form:
This is one of the Securities of the series described in the within-
mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:__________________________
Authorized Signatory
Such signature upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered under
this Indenture and is entitled to the benefits of this Indenture. Except as
permitted by Sections 2.08 or 2.13, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and canceled.
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 2.12 together with a written statement (which need not
comply with Section 12.05 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security
23
shall be deemed never to have been authenticated and delivered hereunder and
shall not be entitled to the benefits of this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent to deal with the Company and Affiliates of the
Company.
Unless otherwise provided as contemplated by Section 2.02, any Registered
Securities of a series shall be issuable in denominations of $1,000 and any
integral multiple thereof, and any Bearer Securities of a series shall be
issuable in denominations of $5,000 and any integral multiple thereof.
SECTION 2.04. Registrar and Paying Agent.
The Company shall maintain an office or agency, which may be in the Borough
of Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange (the "Registrar"), (b)
---------
Securities may be presented or surrendered for payment (the "Paying Agent") and
------------
(c) notices and demands in respect of the Securities and this Indenture may be
served. The Registrar shall keep a register (the "Register") of the Securities
--------
and of their transfer and exchange. The Company, upon notice to the Trustee,
may appoint one or more co-Registrars and one or more additional Paying Agents.
The term "Paying Agent" includes any additional Paying Agent. Except as
provided herein, the Company may act as Paying Agent, Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, which shall incorporate the provisions of the
TIA. The agreement shall implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee of the name and address of
any such Agent. If the Company fails to maintain a Registrar or Paying Agent,
or fails to give the foregoing notice, the Trustee shall act as such and shall
be entitled to appropriate compensation in accordance with Section 7.07.
The Company initially appoints the Trustee as Registrar and Paying Agent
until such time as the Trustee has resigned or a successor has been appointed.
SECTION 2.05. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that each Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all assets held by the Paying Agent for the payment of principal
of, or interest on, the Securities, and shall notify the Trustee of any Default
by the Company in making any such payment. The Company at any time may require
a Paying Agent to distribute all assets held by it to the Trustee and account
for any assets disbursed and the Trustee may at any time during the continuance
of any payment Default, upon written request to a Paying Agent, require such
Paying Agent to distribute all assets held by it to the Trustee and to account
for any assets distributed. Upon distribution to the Trustee of all assets that
shall have been delivered by the Company to the Paying Agent (if other than the
Company), the Paying Agent shall have no further liability for such assets. If
the Company or any of its Affiliates acts as Paying Agent, it shall, on or
before each due date of the principal of or interest on the Securities of a
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or 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.
24
SECTION 2.06. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee before each Interest Record Date and at such other times as the Trustee
may request in writing a list as of such date and in such form as the Trustee
may reasonably require of the names and addresses of Holders, which list may be
conclusively relied upon by the Trustee.
SECTION 2.07. Registration, Transfer and Exchange.
Subject to the provisions of Section 2.16, when Registered Securities of
any series are presented to the Registrar or a co-Registrar with a request to
register the transfer of such Securities or to exchange such Securities for an
equal principal amount of Registered Securities of the same series of other
authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; provided, however, that the Securities surrendered for
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transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities at
the Registrar's or co-Registrar's written request. Unless otherwise specified
as contemplated by Section 2.02, Bearer Securities may not be issued in exchange
for Registered Securities.
Unless otherwise specified as contemplated by Section 2.02, Bearer
Securities of a series may be exchanged for an equal principal amount of
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of other authorized denominations, upon surrender of
the Bearer Securities to be exchanged to the Registrar or a co-Registrar, with
all unmatured coupons and all matured coupons in default thereto appertaining.
If the Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
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4.03, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the United
States.
Notwithstanding the foregoing, in case any Bearer Security of any series is
surrendered to the Registrar or a co-Registrar in exchange for a Registered
Security of the same series after the close of business on (i) any Interest
Record Date and before the opening of business on the relevant Interest Payment
Date, or (ii) any special record date and before the opening of business on the
related date for payment of defaulted interest pursuant to Section 2.13, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or, if
such coupon is so surrendered with such Bearer Security, such coupon shall be
returned to the person so surrendering the Bearer Security), and interest or
defaulted interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon, when due in accordance with the
provisions of this Indenture.
25
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or other governmental charge payable upon
exchanges or transfers pursuant to Section 2.03, 2.11, 3.06, 4.08, 4.15, or
9.05). If the Securities of any series are to be redeemed in part, the
Registrar or co-Registrar shall not be required to (i) register the transfer or
exchange of any Security of that series during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of any such
Securities selected for redemption and ending at the close of business on the
day of such mailing, (ii) to register the transfer or exchange of any Registered
Security so selected for redemption in whole or in part pursuant to Article
Three hereof, except the unredeemed portion of any Security being redeemed in
part or (iii) to exchange any Bearer Security so selected for redemption, except
that such a Bearer Security may be exchanged for a Registered Security of that
series; provided that such Registered Security shall be simultaneously
--------
surrendered for redemption.
Prior to the registration of any transfer by a Holder as provided herein,
the Company, the Trustee and any Agent of the Company shall treat the person in
whose name the Registered Security is registered as the owner thereof for all
purposes whether or not the Security shall be overdue, and none of the Company,
the Trustee or any such Agent shall be affected by notice to the contrary. The
Company, the Trustee and any Agent of the Company shall treat the bearer of any
Bearer Security and the bearer of any coupon as the absolute owner thereof for
all purposes whether or not the Security shall be overdue, and none of the
Company, the Trustee or any such Agent shall be affected by notice to the
contrary. Any consent, waiver or actions of a Holder shall be binding upon any
subsequent Holders of such Security or a Security received upon transfer. Any
Holder of a beneficial interest in a global Security shall, by acceptance of
such beneficial interest in a global Security, agree that transfers of
beneficial interests in such global Security may be effected only through a
book-entry system maintained by the Depository (or its agent), and that
ownership of a beneficial interest in a global Security shall be required to be
reflected in a book entry.
All Securities issued upon any registration or transfer or exchange shall
be the 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.
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.16 or this Section 2.07. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable prior written notice to the Registrar.
The foregoing provisions relating to registration, transfer and exchange
may be modified, supplemented or superseded with respect to any series of
Securities by a Board Resolution or in one or more indentures supplemental
hereto.
SECTION 2.08. Replacement Securities.
If a mutilated Security or a Security with a mutilated coupon appertaining
to it is surrendered to the Trustee or if the Holder of a Security claims that
the Security or coupon has been lost, destroyed or wrongfully taken, the Company
shall execute and the Trustee shall authenticate and deliver a replacement
Registered Security, if such surrendered Security was a Registered Security, or
a replacement Bearer Security with coupons corresponding to the coupons
appertaining to the surrendered Security, if such Security was a Bearer
Security, if the Trustee's requirements for replacement of Securities are met.
Such Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of the Company and the Trustee, to protect the Company, the Trustee and
any Agent from any loss which any of them may
26
suffer if a Security is replaced. Upon the issuance of any new Security under
this Section, the Company may require payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any reasonable out-of-pocket expenses incurred in replacing a
Security, including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the Company.
SECTION 2.09. Outstanding Securities.
Securities outstanding at any time are all the Securities that have been
authenticated by the Trustee except those canceled by it, those delivered to it
for cancellation and those described in this Section 2.09 as not outstanding.
Subject to Section 2.10, a Security does not cease to be outstanding because the
Company or any Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.08 (other than a mutilated
Security surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by
a bona fide purchaser. A mutilated Security ceases to be outstanding upon
surrender of such Security and replacement thereof pursuant to Section 2.08.
If on a Redemption Date, Purchase Date or the Final Maturity Date the
Paying Agent holds money sufficient to pay all of the principal and interest due
on the Securities and any coupons appertaining thereto payable on that date, and
is not prohibited from paying such money to the Holders pursuant to the terms of
this Indenture, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
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 under this Indenture, or whether sufficient funds are
available for redemption or for any other purpose and for the purpose of making
the calculations required by TIA (S) 313, (i) the principal amount of any
Original Issue Discount Securities that may be counted in making such
determination or calculation and that shall be deemed to be outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.02, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be equal
to the Dollar Equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar Equivalent as of such date of
original issuance of the amount determined as provided in clause (i) above) of
such Security and (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 2.02.
SECTION 2.10. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, the Guarantors or any of their respective Affiliates shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities that a Trust Officer of the Trustee actually knows are so owned shall
be disregarded.
27
The Company shall notify the Trustee, in writing, when the Company, any
Guarantor, or any of their respective Affiliates repurchases or otherwise
acquires Securities, of the aggregate principal amount of such Securities so
repurchased or otherwise acquired.
SECTION 2.11. Temporary Securities.
Until definitive Securities of any series are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities of
such series upon receipt of a written order of the Company in the form of an
Officers' Certificate. The Officers' Certificate shall specify the amount of
temporary Securities to be authenticated and the date on which the temporary
Securities are to be authenticated.
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate upon receipt of a written order of the Company
pursuant to Section 2.03 definitive Securities in exchange for temporary
Securities.
SECTION 2.12. Cancellation.
The Company at any time may deliver Securities and coupons to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities and coupons surrendered to them for replacement,
transfer, exchange or payment. The Trustee, or at the direction of the Trustee,
the Registrar or the Paying Agent, and no one else, shall cancel and dispose of
and deliver evidence of such disposal of all Securities and coupons surrendered
for replacement, transfer, exchange, payment or cancellation. Subject to
Section 2.08, the Company may not issue new Securities to replace Securities
that they have paid or delivered to the Trustee for cancellation. If the
Company shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the Indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.12.
SECTION 2.13. Payment of Interest; Defaulted Interest.
(a) Unless otherwise provided as contemplated by Section 2.02 with respect
to any series of Securities, interest, if any, on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall 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 Interest
Record Date.
Unless otherwise provided as contemplated by Section 2.02 with respect to
any series of Securities, (i) interest, if any, on Bearer Securities shall be
paid only against presentation and surrender of the coupons for such interest
installments as are evidenced thereby as they mature and (ii) original issue
discount, if any, on Bearer Securities shall be paid only against presentation
and surrender of such Securities, in either case at the office of a Paying Agent
located outside the United States. The interest, is any, on any temporary
Bearer Security shall be paid, as to any installment of interest evidenced by a
coupon attached thereto only upon presentation and surrender of such coupon and,
as to other installments of interest, only upon presentation of such Security
for notation thereon of the payment of such interest. If, at the time a payment
of principal of or interest, if any, on a Bearer Security or coupon shall become
due, the payment of the full amount so payable at the office or offices of all
the Paying Agents outside the United States is illegal or effectively precluded
because of the imposition of exchange controls or other similar restrictions on
the payment of such amount in Dollars, then the Company shall instruct the
Trustee in writing to make such payments at a Paying Agent located in the United
States, provided that provision
--------
28
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under the laws and regulations
of the United States.
(b) The Company shall pay interest on overdue principal of the Securities
of any series from time to time on demand at the rate of interest then borne by
such Securities. The Company shall, to the extent lawful, pay interest on
overdue installments of interest (without regard to any applicable grace
periods), if any, on the Securities of any series from time to time on demand at
the rate of interest then borne by such Securities.
(c) If the Company defaults in a payment of interest, if any, on any
series of Securities, it shall pay the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest to the Persons who are
Holders on a subsequent special record date, which date shall be the fifteenth
day preceding the date fixed by the Company for the payment of defaulted
interest or the next succeeding Business Day if such date is not a Business Day.
At least 15 days before the subsequent special record date, the Company shall
mail to each Holder, with a copy to the Trustee, a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid prior to the
expiration of the 30-day period set forth in Section 6.01(b) shall be paid to
Holders as of the Interest Record Date for the Interest Payment Date for which
interest has not been paid.
SECTION 2.14. CUSIP Number.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, in such case, the Trustee shall use the CUSIP numbers in
notices of redemption or exchange as a convenience to Holders; provided,
--------
however, that any such notice may state that no representation is made as to the
-------
correctness or accuracy of such numbers either as printed on the Securities or
as contained in any notice, and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company shall promptly
notify the Trustee of any changes in CUSIP numbers known to it.
SECTION 2.15. Deposit of Moneys.
Prior to 1:00 p.m. New York City time on each Interest Payment Date,
Redemption Date, Purchase Date and Stated Maturity date, the Company shall
deposit with the Paying Agent in immediately available funds money sufficient to
make cash payments, if any, due on such Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity date, as the case may be, in a timely manner
which permits the Paying Agent to remit payment to the Holders on such Interest
Payment Date, Redemption Date, Purchase Date or Stated Maturity date, as the
case may be.
SECTION 2.16. Book-Entry Provisions for Global Securities.
(a) Each Security issued in global form authenticated under this Indenture
initially shall (i) be registered in the name of the Depository or the nominee
of such Depository, (ii) be delivered to the Trustee as custodian for such
Depository, (iii) bear legends as set forth in Exhibit B and (iv) constitute a
---------
single Security for all purposes of this Indenture.
Members of, or participants in, the Depository ("Participants") shall have
------------
no rights under this Indenture with respect to any global Security held on their
behalf by the Depository, or the Trustee as its custodian, or under the global
Security, and the Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the global Security
for all purposes
29
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and Participants, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.
(b) Notwithstanding any other provisions of this Indenture, unless and
until it is exchanged in whole or in part for Securities in certificated form in
the circumstances described in paragraph (c) of this Section 2.16, a Security in
global form representing all or a portion of the Securities of a series may not
be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(c) Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of this Section 2.16;
provided, however, that Physical Securities shall be transferred to all
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beneficial owners in exchange for their beneficial interests in global
Securities if (i) the Depository notifies the Company that it is unwilling or
unable to continue as Depository for any global Security and a successor
Depository is not appointed by the Company within 90 days of such notice, (ii)
an Event of Default has occurred and is continuing and the Registrar has
received a request from the Depository to issue Physical Securities or (iii) the
Company notifies the Trustee in writing that it elects to cause the issuance of
Securities in definitive form.
(d) In connection with the transfer of global Securities as an entirety to
beneficial owners pursuant to paragraph (c) of this Section 2.16, the global
Securities shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall upon written instructions
from the Company authenticate and deliver, to each beneficial owner identified
by the Depository in exchange for its beneficial interest in the global
Securities, an equal aggregate principal amount of Physical Securities of
authorized denominations. Securities issued in exchange for a beneficial
interest in a global Security pursuant to this Section 2.16(d) shall be
registered in such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Registrar or co-Registrar in writing. The Registrar or co-
Registrar shall deliver such Physical Securities to the Persons in whose names
such Physical Securities are so registered.
(e) The Holder of any global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Securities and the Trustee is entitled to rely upon
any electronic instructions from beneficial owners to the Holder of any global
Security.
SECTION 2.17. Currency and Manner of Payment in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 2.02, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of, premium, if any, and interest, if any, on any
Registered or Bearer Security of such series will be made in the currency or
currencies or currency unit or units in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section 2.17
may be modified or superseded pursuant to Section 2.02 with respect to any
Securities.
30
(b) It may be provided pursuant to Section 2.02, with respect to
Registered Securities of any series, that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of, premium,
if any, or interest, if any, on such Registered Securities in any of the
currencies or currency units which may be designated for such election by
delivering to the Trustee (or the applicable Paying Agent) a written election
with signature guarantees and in the applicable form established pursuant to
Section 2.02, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such currency or currency unit, such election will
remain in effect for such Holder or any transferee of such Holder until changed
by such Holder or such transferee by written notice to the Trustee (or any
applicable Paying Agent) for such series of Registered Securities (but any such
change must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date, and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article VIII or with respect to which a
notice of redemption has been given by or on behalf of the Company pursuant to
Article III). Any Holder of any such Registered Security who shall not have
delivered any such Election to the Trustee (or any applicable Paying Agent) not
later than the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant currency or
currency unit as provided in Section 2.17(a). The Trustee (or the applicable
Paying Agent) shall notify the Exchange Rate Agent as soon as practicable after
the Election Date of the aggregate principal amount of Registered Securities for
which Holders have made such written election.
(c) If the election referred to in paragraph (b) above has been provided
for with respect to any Registered Securities of a series pursuant to Section
2.02, then, unless otherwise specified pursuant to Section 2.02 with respect to
any such Registered Securities, not later than the fourth Business Day after the
Election Date for each payment date for such Registered Securities, the Exchange
Rate Agent will deliver to the Company a written notice specifying, in the
currency or currencies or currency unit or units in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of,
premium, if any, and interest, if any, on such Registered Securities to be paid
on such payment date, and specifying the amounts in such currency or currencies
or currency unit or units so payable in respect of such Registered Securities as
to which the Holders of Registered Securities denominated in any currency or
currencies or currency unit or units shall have elected to be paid in another
currency or currency unit as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for with respect to any
Registered Securities of a series pursuant to Section 2.02, and if at least one
Holder has made such election, then, unless otherwise specified pursuant to
Section 2.02, on the second Business Day immediately preceding such payment date
the Company will deliver to the Trustee (or the applicable Paying Agent) an
Exchange Rate Officers' Certificate in respect of the Dollar, Foreign Currency
or Currencies, ECU or other currency unit payments to be made on such payment
date. Unless otherwise specified pursuant to Section 2.02, the Dollar, Foreign
Currency or Currencies, ECU or other currency unit amount receivable by Holders
of Registered Securities who have elected payment in a currency or currency unit
as provided in paragraph (b) above shall be determined by the Company on the
basis of the applicable Market Exchange Rate in effect on the second Business
Day (the "Valuation Date") immediately preceding each payment date, and such
--------------
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign Currency, ECU
or any other currency unit in which any of the Securities are denominated or
payable otherwise than pursuant to an election provided for pursuant to
paragraph (b) above, then, with respect to each date for the payment of
principal of, premium, if any, and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency, ECU or such other
currency unit occurring after the last date on which such Foreign Currency, ECU
or such other currency unit was used (the "Conversion Date"), the Dollar shall
---------------
be
31
the currency of payment for use on each such payment date (but such Foreign
Currency, ECU or such other currency unit that was previously the currency of
payment shall, at the Company's election, resume being the currency of payment
on the first such payment date preceded by 15 Business Days during which the
circumstances which gave rise to the Dollar becoming such currency no longer
prevail). Unless otherwise specified pursuant to Section 2.02, the Dollar
amount to be paid by the Company to the Trustee or any applicable Paying Agent
and by the Trustee or any applicable Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency or in the case of a Foreign Currency that is a currency unit, the
Dollar Equivalent of the Currency limit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 2.02, if the Holder of
a Registered Security denominated in any currency or currency unit shall have
elected to be paid in another currency or currency unit or in other currencies
as provided in paragraph (b) above, and (i) a Conversion Event occurs with
respect to any such elected currency or currency unit, such Holder shall receive
payment in the currency or currency unit in which payment would have been made
in the absence of such election and (ii) if a Conversion Event occurs with
respect to the currency or currency unit in which payment would have been made
in the absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 2.17 (but, subject to any contravening
valid election pursuant to paragraph (b) above, the elected payment currency or
currency unit, in the case of the circumstances described in clause (i) above,
or the payment currency or currency unit in the absence of such election, in the
case of the circumstances described in clause (ii) above, shall, at the
Company's election, resume being the currency or currency unit of payment with
respect to Holders who have so elected, but only with respect to payments on
payment dates preceded by 15 Business Days during which the circumstances which
gave rise to such currency or currency unit, in the case of the circumstances
described in clause (i) above, or the Dollar, in the case of the circumstances
described in clause (ii) above, as applicable, becoming the currency or currency
unit of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Exchange Rate Agent and shall be obtained for each subsequent payment date
by the Exchange Rate Agent by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by
the Exchange Rate Agent and, subject to the provisions of paragraph (h) below,
shall be the sum of each amount obtained by converting the specified amount of
each Component Currency (as each such term is defined in paragraph (h) below)
into Dollars at the Market Exchange Rate for such Component Currency on the
Valuation Date with respect to each payment.
(h) For purposes of this Section 2.17 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the
------------------
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, ECU.
"Election Date" shall mean the Regular Record Date for the applicable
-------------
series of Registered Securities as specified pursuant to Section 2.02 by
which the written election referred to in Section 2.17(b) may be made.
A "Specified Amount" of a Component Currency shall mean the number of
----------------
units of such Component Currency or fractions thereof which such Component
Currency represented in the relevant currency unit, including, but not
limited to, ECU, on the Conversion Date. If after the
32
Conversion Date the official unit of any Component Currency is altered by
way of combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If after
the Conversion Date two or more Component Currencies are consolidated into
a single currency, the respective Specified Amounts of such Component
Currencies shall be replaced by an amount in such single currency equal to
the sum of the respective specified Amounts of such consolidated Component
Currencies expressed in such single currency, and such amount shall
thereafter be a Specified Amount and such single currency shall thereafter
be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount
of such Component Currency shall be replaced by specified amounts of such
two or more currencies, the sum of which, at the Market Exchange Rate of
such two or more currencies on the date of such replacement, shall be equal
to the Specified Amount of such former Component Currency and such amounts
shall thereafter be Specified Amounts and such currencies shall thereafter
be Component Currencies. If, after the Conversion Date of the relevant
currency unit, including, but not limited to, ECU, a Conversion Event
(other than any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of such currency
unit and is continuing on the applicable Valuation Date, the Specified
Amount of such Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into Dollars at the
Market Exchange Rate in effect on the Conversion Date of such Component
Currency.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee (and any applicable Paying Agent) and all Holders of Securities
denominated or payable in the relevant currency, currencies or currency units.
The Exchange Rate Agent shall promptly give written notice to the Company and
the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will promptly
give written notice thereof to the Trustee of the appropriate series of
Securities (or any applicable Paying Agent) and to the Exchange Rate Agent (and
the Trustee (or such Paying Agent) will promptly thereafter give notice in the
manner provided in Section 12.02 to the affected Holders) specifying the
Conversion Date. In the event the Company so determines that a Conversion Event
has occurred with respect to ECU or any other currency unit in which Securities
are denominated or payable, the Company will promptly give written notice
thereof to the Trustee (or any applicable Paying Agent) and to the Exchange Rate
Agent (and the Trustee (or such Paying Agent) will promptly thereafter give
notice in the manner provided in Section 12.02 to the affected Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event the Company determines in good
faith that any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above has occurred, the Company will similarly
give written notice to the Trustee (or any applicable Paying Agent) and to the
Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
33
SECTION 2.18. Appointment and Resignation of Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 2.02, if and so long as
the Securities of any series (i) are denominated in a currency other than
Dollars or (ii) may be payable in a currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate
Agent to make the necessary foreign exchange determinations at the time and in
the manner specified pursuant to Section 2.17 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued currency or currencies or currency unit or units into the applicable
payment currency or currency unit for the payment of principal, premium, if any,
and interest, if any, pursuant to Section 2.17.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agency for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 2.02 at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same currency or currencies or currency unit or units).
ARTICLE THREE
REDEMPTION
SECTION 3.01. Applicability of Article.
Securities (including coupons, if any) of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 2.02 for
Securities of any series) in accordance with this Article.
SECTION 3.02. Election to Redeem; Notices to Trustee.
The election of the Company to redeem any Securities, including coupons, if
any, shall be evidenced by or pursuant to a Board Resolution. In case of any
such redemption at the election of the Company, the Company shall notify the
Trustee in writing of the Redemption Date, the Redemption Price, the principal
amount of Securities of such series to be redeemed and, if applicable, the tenor
of the Securities to be redeemed. The Company shall give such notice to the
Trustee at least 45 days before the Redemption Date (unless a shorter notice
shall be agreed to by the Trustee in writing), together with an Officers'
Certificate stating that such redemption will comply with the conditions
contained herein.
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SECTION 3.03. Selection of Securities To Be Redeemed.
Unless otherwise specified as contemplated by Section 2.02, if less than
all of the Securities (including coupons, if any) of a series are to be
redeemed, the Trustee shall select the Securities of the series to be redeemed
in compliance with the requirements of the national securities exchange, if any,
on which the Securities are listed or, if the Securities are not then listed on
a national securities exchange, on a pro rata basis, by lot or in such other
manner as the Trustee shall deem fair and appropriate. The Trustee shall make
the selection from Securities of the series which are then outstanding, subject
to redemption and not previously called for redemption and may provide for the
selection of portions (equal to the minimum authorized denomination for
Securities, including coupons, if any, of that series or any integral multiple
thereof) of the principal amount of Securities, including coupons, if any, of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. The Trustee shall promptly notify the Company in
writing of the Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Company shall so direct, Securities registered
in the name of the Company or any Affiliate thereof shall not be included in the
Securities selected for redemption. If less than all of the Securities of any
series with differing issue dates, interest rates and Stated Maturities are to
be redeemed, the Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing at least 45
days prior to the relevant Redemption Date.
Unless the context otherwise requires, provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption.
SECTION 3.04. Notice of Redemption.
At least 30 days but not more than 60 days prior to a Redemption Date, the
Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed at such Holder's registered address.
Each notice of redemption shall identify the Securities to be redeemed
(including the CUSIP number, if any, thereon) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent to which the Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, are to be surrendered for redemption;
(4) that Securities of the series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) that, unless the Company defaults in making the redemption
payment, interest on each such Security, or portion thereof, called for
redemption ceases to accrue on and after the Redemption Date and the only
remaining right of the Holders is to receive payment of the Redemption
Price upon surrender to the Paying Agent;
(6) in case any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after the
Redemption Date, upon surrender of
35
such Security, a new Security or Securities in principal amount equal to
the unredeemed portion thereof will be issued;
(7) that the redemption is for a sinking fund, if such is the case;
and
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished.
At the Company's request, the Trustee shall give the notice of redemption
on behalf of the Company, in the Company's name and at the Company's expense.
SECTION 3.05. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price. Upon
surrender to the Paying Agent, such Securities shall be paid at the Redemption
Price, plus accrued interest thereon, if any, to the Redemption Date, but
interest installments whose maturity is on or prior to such Redemption Date
shall be payable to the Holders of record at the close of business on the
relevant Interest Record Date.
SECTION 3.06. Deposit of Redemption Price.
At least one Business Day before the Redemption Date, the Company shall
deposit with the Paying Agent (or if the Company is its own Paying Agent, it
shall, on or before the Redemption Date, segregate and hold in trust) an amount
of money in the currency or currencies (including currency unit or units)
sufficient to pay the Redemption Price of and accrued interest, if any, on all
Securities or portions thereof to be redeemed on that date other than Securities
or portions thereof called for redemption on that date which have been delivered
by the Company to the Trustee for cancellation.
If any Security surrendered for redemption in the manner provided in the
Securities shall not be so paid on the Redemption Date due to the failure of the
Company to deposit with the Paying Agent money sufficient to pay the Redemption
Price thereof, the principal and accrued and unpaid interest, if any, thereon
shall, until paid or duly provided for, bear interest as provided in Sections
2.13 and 4.02 with respect to any payment default.
SECTION 3.07. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Termination of Certain Covenants in Event of Investment Grade
Rating.
For so long as no Default or Event of Default has occurred and is
continuing, after either of the Rating Agencies assigns to the Securities an
Investment Grade Rating, and notwithstanding that the
36
Securities may later cease to have an Investment Grade Rating, the Company and
its Restricted Subsidiaries will not be subject to Sections 4.04, 4.05, 4.08,
4.09, 4.13 and clause (d)(iv) of Section 5.01.
SECTION 4.02. Payment of Securities.
The Company shall pay the principal of, premium, if any, and interest,
together with Additional Amounts, if any, on the Securities of each series in
accordance with the terms of the Securities of such series, any coupons
appertaining thereto and this Indenture. An installment of principal, premium,
if any, or interest, if any, or any Additional Amounts shall be considered paid
on the date due if the Trustee or Paying Agent (other than the Company or any
Affiliate of the Company) holds on that date money designated for and sufficient
to pay the installment in full and is not prohibited from paying such money to
the Holders of the Securities of such series pursuant to the terms of this
Indenture.
The Company shall pay cash interest on overdue principal at the same rate
per annum borne by the Securities. The Company shall pay cash interest on
overdue installments of interest at the same rate per annum borne by the
Securities, to the extent lawful, as provided in Section 2.13.
SECTION 4.03. Maintenance of Office or Agency.
The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of any office or agency required by
Section 2.04. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee set forth in Section 12.02.
SECTION 4.04. Limitations on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless
---------------------
(i) such Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, a
Board Resolution of the Company that such Affiliate Transaction has been
approved by a majority of the disinterested members of the Board of Directors of
the Company and (b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess of
$25.0 million, an opinion as to the fairness to the Holders of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing; provided that with respect to any
--------
contracts or agreements, such dollar amounts shall be with respect to annual
consideration under such contracts or agreements. The foregoing provisions shall
not apply to (i) any agreement in effect on the Issue Date and any amendments
thereto; provided that any such amendment shall be no more disadvantageous to
the Holders in any material respect than the original agreement, (ii) any
compensation arrangements entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Company or such Restricted Subsidiary, (iii) transactions
between or among the Company and/or its Restricted Subsidiaries, (iv) any
transaction in connection with a Securitization and (v) Restricted Payments that
are permitted by Section 4.09.
37
SECTION 4.05. Limitation on Indebtedness.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
-----
Debt), and the Company and the Guarantors shall not issue any Disqualified
Stock, and the Company shall not permit any of its Restricted Subsidiaries (that
are not Guarantors) to issue any shares of preferred stock; provided, however,
-------- -------
that (x) the Company and the Guarantors may incur Indebtedness (including
Acquired Debt) or issue shares of Disqualified Stock or the Company's Restricted
Subsidiaries (that are not Guarantors) may issue shares of preferred stock if
the Consolidated Leverage Ratio of the Company, calculated on a pro forma basis
after giving effect to the incurrence of the additional Indebtedness to be
incurred or the Disqualified Stock or preferred stock to be issued and the
application of the proceeds therefrom, would have been less than 2.0 to 1 and
(y) Direct Merchants Bank may incur Indebtedness or issue shares of Disqualified
Stock if the Consolidated Leverage Ratio of the Company, calculated on a pro
forma basis after giving effect to the incurrence of the additional Indebtedness
to be incurred or the Disqualified Stock to be issued and the application of the
proceeds therefrom, would have been less than 1.5 to 1.
Notwithstanding the preceding paragraph, the Company and its Restricted
Subsidiaries may incur the following Indebtedness (collectively, "Permitted
---------
Debt"):
(i) Indebtedness of the Company under the Credit Agreement and
Guarantees thereof by the Guarantors in an aggregate amount not to exceed
$300.0 million at any time outstanding;
(ii) the Indebtedness and Disqualified Stock of the Company and its
Restricted Subsidiaries existing on the Issue Date;
(iii) Indebtedness of any Restricted Subsidiary of the Company
represented by a Subsidiary Guarantee;
(iv) Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance, defease, renew or replace,
any Indebtedness (other than intercompany Indebtedness) that was permitted
to be incurred under this Section 4.05 or that was outstanding on the Issue
Date;
(v) intercompany Indebtedness between or among the Company and any
of its Restricted Subsidiaries; provided, however, that (i) if the Company
-------- -------
or any Guarantor is the obligor on such Indebtedness to a Restricted
Subsidiary of the Company that is not a Wholly-Owned Restricted Subsidiary
of the Company, such Indebtedness is expressly subordinated to the prior
payment in full in cash of all Obligations with respect to the Securities
or the Subsidiary Guarantee, as the case may be, and (ii)(A) any subsequent
issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary of the Company shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause (v);
(vi) the issuance by a Restricted Subsidiary of the Company of
preferred stock to the Company or to any of the Guarantors; provided,
--------
however, that any subsequent event or issuance or transfer of any Capital
-------
Stock that results in the owner of such preferred stock, in the case of a
38
Guarantor, ceasing to be a Restricted Subsidiary of the Company or any
subsequent transfer of such preferred stock to a Person other than the
Company or any of the Guarantors shall be deemed to be an issuance of
preferred stock by such Restricted Subsidiary that was not permitted by
this clause (vi);
(vii) Hedging Obligations that are incurred in the ordinary course of
business;
(viii) Capital Lease Obligations and/or Purchase Money Indebtedness
of the Company or a Restricted Subsidiary of the Company incurred in the
ordinary course of business not to exceed $30.0 million at any time
outstanding;
(ix) the Guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or a Restricted Subsidiary of the Company that
was permitted to be incurred by another provision of this Section 4.05; and
(x) additional Indebtedness of the Company and the Guarantors in an
aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any other Indebtedness incurred pursuant to
this clause (x), not to exceed $25.0 million at any time outstanding.
Notwithstanding anything in this Indenture to the contrary, consummation of
a Securitization shall not be deemed to be the incurrence of Indebtedness or the
issuance of Disqualified Stock or preferred stock by the Company or a Restricted
Subsidiary of the Company.
The Company shall not, and shall not permit any Restricted Subsidiary of
the Company to, incur any Indebtedness that is contractually subordinated to any
Indebtedness of the Company or any such Restricted Subsidiary unless such
Indebtedness is also contractually subordinated to the Securities, or the
Subsidiary Guarantee of such Restricted Subsidiary (as applicable), on
substantially identical terms; provided, however, that no Indebtedness shall be
-------- -------
deemed to be contractually subordinated to any other Indebtedness solely by
virtue of being unsecured or not guaranteed by any Restricted Subsidiary of the
Company.
For purposes of determining compliance with this Section 4.05, in the event that
an item of Indebtedness meets the criteria of more than one of the categories of
Permitted Debt described in clauses (i) through (x) above or is entitled to be
incurred pursuant to the first paragraph of this Section 4.05, the Company
shall, in its sole discretion, classify such item of Indebtedness in any manner
that complies with this Section 4.05 and such item of Indebtedness will be
treated as having been incurred pursuant to only one of such clauses or pursuant
to the first paragraph hereof.
SECTION 4.06. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Securities of a series for or
as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or such Securities unless such consideration is
offered to be paid or is paid to all Holders of the Securities of such series
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
39
SECTION 4.07. Limitation on Investment Company Status.
The Company and its Subsidiaries shall not take any action, or otherwise
permit to exist any circumstance, that would require the Company to register as
an "investment company" under the Investment Company Act of 1940, as amended.
SECTION 4.08. Limitation on Asset Sales.
The Company shall not, and shall not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Asset Sale, unless (i) the
Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets sold or otherwise disposed of and (ii) at least 85% of such
consideration consists of (A) cash or Cash Equivalents, (B) properties and
assets to be used in the business of the Company and its Restricted Subsidiaries
and/or (C) Equity Interests in any Person which thereby becomes a Wholly-Owned
Restricted Subsidiary of the Company. The amount of any (i) Indebtedness (other
than any subordinated Indebtedness) of the Company or any Restricted Subsidiary
of the Company that is actually assumed by the transferee in such Asset Sale and
from which the Company and the Restricted Subsidiaries of the Company are fully
released shall be deemed to be cash for purposes of determining the percentage
of cash consideration received by the Company or any of its Restricted
Subsidiaries and (ii) notes or other similar obligations received by the Company
or any of its Restricted Subsidiaries from such transferee that are immediately
converted, sold or exchanged (or are converted, sold or exchanged within thirty
days of the related Asset Sale) by the Company or any of its Restricted
Subsidiaries into cash shall be deemed to be cash, in an amount equal to the net
cash proceeds realized upon such conversion, sale or exchange, for purposes of
determining the percentage of cash consideration received by the Company or any
of its Restricted Subsidiaries.
In the event of the transfer of substantially all (but not all) of the
property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Article Five and as a
result thereof the Company is no longer an obligor on the Securities, the
successor corporation shall be deemed to have sold the properties and assets of
the Company and its Restricted Subsidiaries not so transferred for purposes of
this Section 4.08, and shall comply with the provisions of this Section 4.08
with respect to such deemed sale as if it were an Asset Sale. In addition, the
Fair Market Value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for
purposes of this Section 4.08.
The Company or such Restricted Subsidiary, as the case may be, may (i)
apply the Net Cash Proceeds of any Asset Sale within 365 days of receipt thereof
to repay Specified Senior Indebtedness of the Company or such Restricted
Subsidiary and permanently reduce any related commitment, or (ii) commit in
writing to, or acquire, construct or improve, properties and assets to be used
in the business of the Company and its Restricted Subsidiaries and so apply such
Net Cash Proceeds within 365 days after the receipt thereof.
To the extent all or part of the Net Cash Proceeds of any Asset Sale are
not applied within 365 days of such Asset Sale as described in clause (i) or
(ii) of the immediately preceding paragraph (such Net Cash Proceeds, the
"Unutilized Net Cash Proceeds"), the Company shall, within 20 days after such
----------------------------
365th day, make an Offer to Purchase all outstanding Securities up to a maximum
principal amount (expressed as a multiple of $1,000) of Securities equal to such
Unutilized Net Cash Proceeds, at a purchase price in cash equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Purchase Date; provided, however, that the Offer to Purchase may be deferred
-------- -------
until there are aggregate Unutilized Net Cash Proceeds equal to or in excess of
$10.0 million, at which time the entire
40
amount of such Unutilized Net Cash Proceeds, and not just the amount in excess
of $10.0 million, shall be applied as required pursuant to this paragraph.
With respect to any Offer to Purchase effected pursuant to this Section
4.08, among the Securities, to the extent the aggregate principal amount of
Securities tendered pursuant to such Offer to Purchase exceeds the Unutilized
Net Cash Proceeds to be applied to the repurchase thereof, such Securities shall
be purchased pro rata based on the aggregate principal amount of such Securities
tendered by each Holder. To the extent the Unutilized Net Cash Proceeds exceed
the aggregate amount of Securities tendered by the Holders of the Securities
pursuant to such Offer to Purchase, the Company may retain and utilize any
portion of the Unutilized Net Cash Proceeds not applied to repurchase the
Securities for any purpose consistent with the other terms of this Indenture.
In the event that the Company makes an Offer to Purchase the Securities,
the Company shall comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1 under,
the Exchange Act, and any violation of the provisions of this Indenture relating
to such Offer to Purchase occurring as a result of such compliance shall not be
deemed a Default or an Event of Default.
Each Holder shall be entitled to tender all or any portion of the
Securities owned by such Holder pursuant to the Offer to Purchase, subject to
the requirement that any portion of a Security tendered must be tendered in an
integral multiple of $1,000 principal amount and subject to any proration among
tendering Holders as described above.
SECTION 4.09. Limitation on Restricted Payments.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment
in connection with any merger or consolidation involving the Company) or to
the direct or indirect holders of the Company's or any of its Restricted
Subsidiaries' Equity Interests in their capacity as such (other than (A)
dividends, payments or distributions payable solely in Equity Interests
(other than Disqualified Stock) of the Company and (B) dividends, payments
or distributions payable solely to the Company or its Wholly-Owned
Restricted Subsidiaries);
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company or
any direct or indirect parent of the Company or other Affiliate of the
Company (other than any such Equity Interests owned by the Company or any
Wholly-Owned Restricted Subsidiary of the Company); or
(iii) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iii)
above being collectively referred to as "Restricted Payments"), unless, at the
-------------------
time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof;
41
(b) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Consolidated Leverage Ratio test set
forth in the first paragraph of Section 4.05; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted Subsidiaries
after the Issue Date (excluding Restricted Payments permitted by clause (ii) of
the next succeeding paragraph), is less than the sum of (i) 50% of the aggregate
cumulative Consolidated Net Income of the Company for the period (taken as one
accounting period) from and after January 1, 2000 to the end of the Company's
most recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit), plus (ii) 100%
of the aggregate net cash proceeds received by the Company from the issue or
sale since the Issue Date of Equity Interests of the Company (other than
Disqualified Stock) or of Disqualified Stock or debt securities of the Company
that have been converted into such Equity Interests (other than Equity Interests
(or Disqualified Stock or convertible debt securities) sold to a Subsidiary of
the Company and other than Disqualified Stock or convertible debt securities
that have been converted into Disqualified Stock), plus (iii) to the extent that
any Restricted Investment that was made after the Issue Date is sold for cash or
otherwise liquidated or repaid for cash, the lesser of (A) the cash return of
capital with respect to such Restricted Investment (less the cost of
disposition, if any) and (B) the initial amount of such Restricted Investment,
plus (iv) $150 million.
The foregoing provisions do not prohibit (i) the payment of any dividend
within 60 days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company in exchange for, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of, other Equity Interests of the Company (other than Disqualified
Stock); provided that the amount of any such net cash proceeds that are utilized
--------
for any such redemption, repurchase, retirement or other acquisition shall be
excluded from clause (c) (ii) of the preceding paragraph; (iii) the payment of
any dividend by a Restricted Subsidiary of the Company to the holders of its
common Equity Interests on a pro rata basis; (iv) the repurchase, redemption or
other acquisition or retirement for value of any Equity Interests of the Company
or any Restricted Subsidiary of the Company held by any member of the Company's
(or any of its Restricted Subsidiaries') management in connection with
compensation or severance arrangements; provided that the aggregate price paid
--------
for all such repurchased, redeemed, acquired or retired Equity Interests shall
not exceed $1.0 million in any twelve-month period and no Default or Event of
Default shall have occurred and be continuing immediately after such
transaction; (v) payments of withholding taxes due or payments of exercise
prices in connection with exercises of options for common stock of the Company
by any employee or former employee of the Company (or any Affiliate of the
Company) by the tender of common stock owned by such employee or the withholding
of shares of common stock of the Company in connection with such option exercise
as consideration therefor in connection with compensation arrangements; (vi) any
purchase, redemption or other acquisition or retirement for a nominal amount of
Equity Interests issued pursuant to any shareholder rights plan of the Company,
as the same may be adopted or amended from time to time; (vii) payment of cash
in lieu of fractional shares of common stock that otherwise would be issuable;
and (viii) if no Default or Event of Default shall have occurred and be
continuing, the payment of dividends on the Common Stock not in excess of $0.02
per share (as adjusted for stock splits, stock dividends, reclassifications and
the like) per fiscal quarter and the equivalent participating dividend on the
Series C Preferred based on the conversion formula contained in the Certificate
of Designation relating to the Series C Preferred.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation would not cause
a Default. For purposes of making such
42
determination, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this Section 4.09. All such outstanding Investments will
be deemed to constitute Investments in an amount equal to the greater of (y) the
net book value of such Investments at the time of such designation or (z) the
Fair Market Value of such Investments at the time of such designation. Such
designation will only be permitted if such Restricted Payment would be permitted
at such time and if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.
The amount of all non-cash Restricted Payments shall be the Fair Market
Value on the date of the Restricted Payment of the assets or securities proposed
to be transferred or issued by the Company or such Restricted Subsidiary, as the
case may be, pursuant to the Restricted Payment. The Fair Market Value of any
non-cash Restricted Payment shall be determined by the Board of Directors of the
Company, whose resolution with respect thereto shall be delivered to the
Trustee, such determination to be based upon an opinion or appraisal issued by
an accounting, appraisal or investment banking firm of national standing if such
Fair Market Value exceeds $10.0 million. Not later than 50 days after the end
of any fiscal quarter (100 days in the case of the last fiscal quarter of the
fiscal year) during which any Restricted Payment is made, the Company shall
deliver to the Trustee an Officers' Certificate stating that all Restricted
Payments made during such fiscal quarter were permitted and setting forth the
basis upon which the calculations required by this Section 4.09 were computed,
together with a copy of any opinion or appraisal required by this paragraph.
SECTION 4.10. Notice of Defaults.
(a) In the event that any Indebtedness of the Company or any of its
Subsidiaries is declared due and payable before its maturity because of the
occurrence of any default (or any event which, with notice or lapse of time, or
both, would constitute such a default) under such Indebtedness, the Company
shall promptly give written notice to the Trustee of such declaration, the
status of such default or event and what action the Company is taking or
proposes to take with respect thereto.
(b) Upon becoming aware of any Default or Event of Default, the Company
shall promptly, and in any event within five Business Days, deliver an Officers'
Certificate to the Trustee specifying the Default or Event of Default and
setting forth the action the Company proposes to take with respect thereto.
SECTION 4.11. Limitation on Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind (other than Permitted Liens) upon any of
their property or assets, now owned or hereafter acquired, unless all payments
due under this Indenture and the Securities and, in the case of a Guarantor, its
Subsidiary Guarantee are secured on an equal and ratable basis (or on a senior
basis in the case of subordinated Indebtedness) with the obligations so secured
until such time as such obligations are no longer secured by a Lien.
SECTION 4.12. Reports.
Whether or not required by the rules and regulations of the SEC, so long as
any Securities are outstanding, the Company shall furnish to the Trustee (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a "Management's Discussion and Analysis
of Financial
43
Condition and Results of Operations" that describes the financial condition and
results of operations of the Company and its consolidated Subsidiaries (showing
in reasonable detail, either on the face of the financial statements or in the
footnotes thereto and in Management's Discussion and Analysis of Financial
Condition and Results of Operations, the financial condition and results of
operations of the Company and its Restricted Subsidiaries separately from the
financial condition and results of operations of the Unrestricted Subsidiaries
of the Company) and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants and (ii) all current
reports that would be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports. In addition, whether or not required
by the rules and regulations of the SEC, the Company shall file a copy of all
such information and reports with the SEC for public availability (unless the
SEC will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary of the Company to (i)(a) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (1) on its
Capital Stock or (2) with respect to any other interest or participation in, or
measured by, its profits, or (b) pay any Indebtedness owed to the Company or any
of its Restricted Subsidiaries, (ii) make loans or advances to the Company or
any of its Restricted Subsidiaries or (iii) transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (a) this Indenture,
any other indenture of the Company existing on the Issue Date and the Credit
Agreement, (b) applicable law, (c) any instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
--------
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to
be incurred, (d) by reason of customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices, (e) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature described in clause
(iii) above on the property so acquired, (f) Permitted Refinancing Indebtedness,
provided that the restrictions contained in the agreements governing such
--------
Permitted Refinancing Indebtedness are no more restrictive than those contained
in the agreements governing the Indebtedness being refinanced, (g) the
provisions of any Securitization that are exclusively applicable to any
Securitization Entity, or (h) in the case of clause (iii) above, restrictions
contained in security agreements securing Indebtedness of Guarantors relating to
the properties or assets of Guarantors subject to the Liens created thereby,
provided that such Liens were otherwise permitted to be incurred under Section
--------
4.11.
44
SECTION 4.14. Additional Subsidiary Guarantees.
The Company shall cause each Restricted Subsidiary which Guarantees any
Indebtedness of the Company to execute and deliver to the Trustee a Subsidiary
Guarantee pursuant to which such Restricted Subsidiary will Guarantee the
Company's payment obligations under the Securities on a senior unsecured basis,
jointly and severally, with any other Guarantors; provided, that the foregoing
--------
shall not apply to Subsidiaries that (i) have properly been designated as
Unrestricted Subsidiaries in accordance with this Indenture for so long as they
continue to constitute Unrestricted Subsidiaries or (ii) qualify as
Securitization Entities for so long as they continue to constitute
Securitization Entities.
SECTION 4.15. Offer to Purchase upon Change of Control.
(a) Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Company shall notify the
----------------------
Holders of the Securities of such occurrence in the manner prescribed by this
Indenture and shall, within 30 days after the Change of Control Date, make an
Offer to Purchase all Securities then outstanding at a purchase price in cash
equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the Purchase Date (subject to the right of Holders
of record on the relevant Interest Record Date to receive interest due on the
relevant Interest Payment Date). Each Holder shall be entitled to tender all or
any portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be tendered in an integral multiple of $1,000 principal amount.
(b) On or prior to the Purchase Date specified in the Offer to Purchase,
the Company shall (i) accept for payment all Securities or portions thereof
validly tendered pursuant to the Offer, (ii) deposit with the Paying Agent or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 2.04, money sufficient to pay the Purchase Price of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee for cancellation all Securities so accepted together
with an Officers' Certificate stating the Securities or portions thereof
accepted for payment by the Company. The Paying Agent (or the Company, if so
acting) shall promptly mail or deliver to Holders of Securities so accepted,
payment in an amount equal to the Purchase Price for such Securities, and the
Trustee shall promptly authenticate and mail or deliver to each Holder of
Securities a new Security or Securities equal in principal amount to any
unpurchased portion of the Security surrendered as requested by the Holder. Any
Security not accepted for payment shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Offer on or as soon as practicable after the Purchase Date.
(c) If the Company makes an Offer to Purchase, the Company shall comply
with all applicable tender offer laws and regulations, including, to the extent
applicable, Section 14(e) and Rule 14e-1 under the Exchange Act and any other
applicable Federal or State securities laws and regulations and any applicable
requirements of any securities exchange on which the Securities are listed. To
the extent that the provisions of any securities laws, regulations conflict with
the provisions of this Section 4.15, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.15.
SECTION 4.16. Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the close of
each fiscal year a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer stating that a
review of the activities of the Company has been made under the supervision of
the signing officer with a view to determining whether a Default or Event of
Default has occurred and whether or not the signers know of any Default or Event
of Default by the Company that occurred during
45
such fiscal year. If they do know of such a Default or Event of Default, their
status and the action the Company is taking or proposes to take with respect
thereto.
SECTION 4.17. Corporate Existence.
Subject to Article Five, the Company shall do or shall cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Restricted
Subsidiary in accordance with the respective organizational documents of each
such Restricted Subsidiary and the rights (charter and statutory) and material
franchises of the Company and the Restricted Subsidiaries; provided, however,
-------- -------
that the Company shall not be required to preserve any such right or franchise,
or the corporate existence of any Restricted Subsidiary, if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and the
Restricted Subsidiaries, taken as a whole; provided, further, however, that a
-------- ------- -------
determination of the Board of Directors of the Company shall not be required in
the event of a merger of one or more Wholly-Owned Restricted Subsidiaries of the
Company with or into another Wholly-Owned Restricted Subsidiary of the Company
or another Person, if the surviving Person is a Wholly-Owned Restricted
Subsidiary of the Company organized under the laws of the United States or a
State thereof or of the District of Columbia. This Section 4.17 shall not
prohibit the Company from taking any other action otherwise permitted by, and
made in accordance with, the provisions of this Indenture.
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Sale of Assets, etc.
(a) The Company may not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless (i) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the
Securities and this Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee; (iii) immediately before and after such
transaction, no Default or Event of Default exists; and (iv) the Company or the
entity or Person formed by or surviving any such consolidation or merger (if
other than the Company), or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made (A) will have Consolidated
Net Worth immediately after the transaction equal to or greater than the
Consolidated Net Worth of the Company immediately preceding the transaction and
(B) would, at the time of such transaction and after giving pro forma effect
thereto, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Leverage Ratio test set forth in the first
paragraph of Section 4.05.
(b) Notwithstanding paragraph (a) above or paragraph (d) below, any
Wholly-Owned Restricted Subsidiary of the Company may consolidate with or merge
into the Company or any Guarantor; provided that the Company or the Guarantor,
--------
as the case may be, is the surviving corporation, and any Guarantor may
consolidate with or merge into the Company. Notwithstanding anything in this
46
Indenture to the contrary, consummation of one or more Securitizations shall not
constitute the sale of all or substantially all of the properties or assets of
the Company.
(c) For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all the properties and assets of one or more Restricted
Subsidiaries the Equity Interest of which constitutes all or substantially all
the properties and assets of the Company shall be deemed to be the transfer of
all or substantially all the properties and assets of the Company.
(d) No Guarantor may consolidate with or merge with or into (whether or
not such Guarantor is the surviving Person), another corporation, Person or
entity whether or not affiliated with such Guarantor unless, subject to the
provisions of Section 10.03, (i) the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor) assumes all the
obligations of such Guarantor under its Subsidiary Guarantee pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under the Securities and this Indenture; (ii) immediately after giving
effect to such transaction, no Default or Event of Default exists; (iii) such
Guarantor, or any Person formed by or surviving any such consolidation or
merger, would have Consolidated Net Worth (immediately after giving effect to
such transaction), equal to or greater than the Consolidated Net Worth of such
Guarantor immediately preceding the transaction; and (iv) immediately after
giving effect to such transaction, the Company would have been able to incur at
least $1.00 of additional Indebtedness pursuant to the Consolidated Leverage
Ratio test set forth in the first paragraph of Section 4.05.
SECTION 5.02. Successor Corporation Substituted.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Section 5.01 in which the Company or a
Guarantor, as the case may be, is not the Surviving Person and the Surviving
Person is to assume all the Obligations of the Company under the Securities and
this Indenture or of such Guarantor under its Subsidiary Guarantee and this
Indenture, as the case may be, pursuant to a supplemental indenture, such
Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or such Guarantor, as the case may be, and
the Company, as the case may be, shall be discharged from its Obligations under
this Indenture and the Securities or such Guarantor shall be discharged from its
Obligations under this Indenture and its Subsidiary Guarantee, as the case may
be.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following shall be an "Event of Default" with respect to the
Securities of any series for purposes of this Indenture:
(a) default in the payment when due of principal of (or premium, if any,
on) any Security of that series;
(b) default in the payment when due of any interest on, or Additional
Amounts payable with respect to, any Security of that series or any coupon
appertaining thereto, which default continues for 30 days or more;
47
(c) failure by the Company or any of its Restricted Subsidiaries to comply
with its obligations under Section 4.05, Section 4.08, Section 4.13 or Section
4.15;
(d) failure by the Company or any of its Restricted Subsidiaries for 30
days after notice from the Trustee or the Holders of at least 25% in aggregate
principal amount of the Securities of that series then outstanding to comply
with any of the other covenants or agreements in this Indenture with respect to
any Security of that series;
(e) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries) whether such Indebtedness now exists, or is created after the
Issue Date, which default (a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such default (a
"Payment Default") or (b) results in the acceleration of such Indebtedness prior
---------------
to its express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $5.0 million or more;
(f) failure by the Company or any of its Restricted Subsidiaries to pay
final judgments aggregating in excess of $5.0 million, which judgments are not
paid, discharged or stayed for a period of 60 days;
(g) the Company or any of its Significant Subsidiaries (or one or more
Restricted Subsidiaries that, taken together would constitute a Significant
Subsidiary) pursuant to or within the meaning of any Bankruptcy Law: (i) admits
in writing its inability to pay its debts generally as they become due; (ii)
commences a voluntary case or proceeding; (iii) consents to the entry of an
order for relief against it in an involuntary case or proceeding; (iv) consents
or acquiesces in the institution of a bankruptcy or insolvency proceeding
against it; (v) consents to the appointment of a Custodian of it or for all or
substantially all of its property; or (vi) makes a general assignment for the
benefit of its creditors, or any of them takes any action to authorize or effect
any of the foregoing;
(h) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company or any Significant
Subsidiary (or one or more Restricted Subsidiaries that, taken together would
constitute a Significant Subsidiary) of the Company in an involuntary case or
proceeding; (ii) appoints a Custodian of the Company or any Significant
Subsidiary (or one or more Restricted Subsidiaries that, taken together would
constitute a Significant Subsidiary) of the Company for all or substantially all
of its property; or (iii) orders the liquidation of the Company or any
Significant Subsidiary (or one or more Restricted Subsidiaries that, taken
together would constitute a Significant Subsidiary) of the Company; and in each
case the order or decree remains unstayed and in effect for 60 days; provided,
--------
however, that if the entry of such order or decree is appealed and dismissed on
-------
appeal, then the Event of Default hereunder by reason of the entry of such order
or decree shall be deemed to have been cured;
(i) except as permitted by this Indenture, any Subsidiary Guarantee shall
be held in a judicial proceeding to be unenforceable or invalid or shall cease
for any reason to be in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, shall deny or disaffirm its obligations under
its Subsidiary Guarantee; or
(j) any other Event of Default provided as contemplated by Section 2.02
with respect to the Securities of that series.
48
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
--------------
state or foreign law for the relief of debtors. The term "Custodian" means any
---------
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
SECTION 6.02. Acceleration.
If an Event of Default with respect to the Securities of any series (other
than an Event of Default specified in clauses (g) or (h) of Section 6.01) occurs
and is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the outstanding Securities of that series, by notice in
writing to the Company (and to the Trustee if given by the Holders) may declare
the unpaid principal (or, if the Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the original principal amount
as may be specified in the terms of that series) of, and premium, if any, and
accrued interest, if any, to the date of acceleration on all outstanding
Securities of that series to be due and payable immediately and, upon any such
declaration, such principal amount (or, in the case of Original Issue Discount
Securities or Indexed Securities, such specified amount), and premium, if any,
and accrued interest, if any, notwithstanding anything contained in this
Indenture or the Securities to the contrary, shall become immediately due and
payable.
If an Event of Default specified in clauses (g) or (h) of Section 6.01
occurs, all unpaid principal of and accrued interest on all outstanding
Securities shall ipso facto become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
Any such declaration with respect to the Securities of any series may be
rescinded and annulled by the Holders of a majority in aggregate principal
amount of the outstanding Securities of that series by written notice to the
Trustee if all existing Events of Default with respect to the Securities of that
series (other than the nonpayment of principal of and interest on the Securities
of that series which has become due solely by virtue of such acceleration) have
been cured or waived and if the rescission would not conflict with any judgment
or decree. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default with respect to the Securities of any series occurs
and is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of principal of or interest on the
Securities of that series or to enforce the performance of any provision of such
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities of that series or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy maturing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Default.
Subject to Sections 2.10, 6.07 and 9.02, prior to the declaration of
acceleration of the Securities of any series, the Holders of not less than a
majority in aggregate principal amount of the outstanding Securities of that
series by written notice to the Trustee may waive an existing Default or Event
of Default with respect to that series and its consequences, except a Default in
the payment of principal of, premium, if any, or interest or any Additional
Amounts on any Security of such series or any coupon appertaining thereto as
specified in clauses (a), (b) and (c) of Section 6.01 or a Default in respect of
any term or
49
provision of this Indenture that may not be amended or modified without the
consent of each Holder affected as provided in Section 9.02. The Company shall
deliver to the Trustee an Officers' Certificate stating that the requisite
percentage of Holders have consented to such waiver and attaching copies of such
consents. In case of any such waiver, the Company, the Trustee and the Holders
shall be restored to their former positions and rights hereunder and under the
Securities of such series, respectively. This paragraph of this Section 6.04
shall be in lieu of (S) 316(a)(1)(B) of the TIA and such (S) 316(a)(1)(B) of the
TIA is hereby expressly excluded from this Indenture and the Securities, as
permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Securities of such series, but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
SECTION 6.05. Control by Majority.
Subject to Section 2.10, the Holders of a majority in principal amount of
the outstanding Securities of each series affected (with each such series voting
as a class) may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it with respect to that series. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of another Holder of such
series not consenting or of any other series, it being understood that the
Trustee shall have no duty (subject to Section 7.01) to ascertain whether or not
such actions or forbearances are unduly prejudicial to such holders, or that may
involve the Trustee in personal liability; provided, however, that the Trustee
-------- -------
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction. In the event the Trustee takes any action or follows any
direction pursuant to this Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against any loss or
expense caused by taking such action or following such direction. This Section
6.05 shall be in lieu of (S) 316(a)(1)(A) of the TIA, and such (S) 316(a)(1)(A)
of the TIA is hereby expressly excluded from this Indenture and the Securities,
as permitted by the TIA.
SECTION 6.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or the
Securities of any series or any coupon appertaining thereto unless:
(i) the Holder gives to the Trustee written notice of a continuing Event
of Default with respect to the Securities of that series;
(ii) the Holders of at least 25% in aggregate principal amount of the
outstanding Securities of that series make a written request to the Trustee to
pursue a remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(iv) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(v) during such 60-day period the Holders of a majority in principal
amount of the outstanding Securities of that series do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
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A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, premium, if any, or interest or any
Additional Amounts on a Security, on or after the respective due dates expressed
in the Security, and the right of any Holder of a coupon to receive payment of
interest due as provided in such coupon, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium, if any, or
interest or any Additional Amounts specified in Section 6.01(a), (b) or (c)
occurs and is continuing with respect to Securities of any series, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company or any other obligor on the Securities of that series for the whole
amount of principal, premium, if any, and accrued interest and any Additional
Amounts remaining unpaid on such Securities and coupons, together with interest
overdue on principal and premium, if any, and to the extent that payment of such
interest is lawful, interest on overdue installments of interest and any
Additional Amounts, in each case at the rate per annum borne by such Securities
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceedings relative to the Company (or any other obligor upon the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any monies or other property payable or deliverable on
any such claims 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 agent and counsel, and any other amounts due the Trustee under
Section 7.07. 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; provided,
--------
however, that the Trustee may, on behalf of the Holders, vote for the election
-------
of a trustee in bankruptcy or similar official and may be a member of the
creditors' committee.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article Six,
it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
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Second: to Holders for amounts due and unpaid on such Securities for
principal, premium, if any, and interest and any Additional Amounts, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal, premium, if any, and interest,
respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 shall not apply to a suit by the Trustee, a suit by a Holder
or group of Holders of more than 10% in aggregate principal amount of the
outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement or the payment of the principal, premium, if any, or
interest or any Additional Amounts on any Securities on or after the respective
due dates expressed in such Security.
SECTION 6.12. Judgment Currency.
If, for the purpose of obtaining a judgment in any court with respect to
any obligation of the Company hereunder or under any Security or any related
coupon, it shall become necessary to convert into any other currency or currency
unit any amount in the currency or currency unit due hereunder or under such
Security or coupon, then such conversion shall be made by the Exchange Rate
Agent at the Market Exchange Rate as in effect on the date of entry of the
judgment (the "Judgment Date"). If pursuant to any such judgment, conversion
-------------
shall be made on a date (the "Substitute Date") other than the Judgment Date and
---------------
there shall occur a change between the Market Exchange Rate as in effect on the
Judgment Date and the Market Exchange Rate as in effect on the Substitute Date,
the Company shall pay such additional amounts, if any, as may be necessary to
ensure that the amount paid is equal to the amount in such other currency or
currency unit which, when converted at the Market Rate as in effect on the
Judgment Date, is the amount due hereunder or under such Security or coupon.
Any amount due from the Company under this Section 6.12 shall be due as a
separate debt and is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or in respect of any Security or
coupon. In no event, however, shall the Company be required to pay more in the
currency or currency unit stated to be due hereunder or under such Security or
coupon at the Market Exchange Rate as in effect on the Judgment Date than the
amount of currency or currency unit stated to be due hereunder or under such
Security or coupon so that in any event the Company's obligations hereunder or
under such Security or coupon will be effectively maintained as obligations in
such currency or currency unit, and the Company shall be entitled to withhold
(or be reimbursed for, as the case may be) any excess of the amount actually
realized upon any such conversion on the Substitute Date over the amount due and
payable on the Judgment Date.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the performance of
such duties as are specifically set forth herein; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions conforming to
the requirements of this Indenture; however, in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine such
certificates and opinions to determine whether or not they substantially
conform to the requirements of this Indenture.
(c) The Trustee shall not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall 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 to take or omit to take any action under this
Indenture or take any action at the request or direction of Holders if it shall
have reasonable grounds for believing that repayment of such funds is not
assured to it or it does not receive from such Holders an indemnity satisfactory
to it in its sole discretion against such risk, liability, loss, fee or expense
which might be incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
53
(a) The Trustee may conclusively rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to the
provisions of Section 12.05. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through attorneys and agents of its selection and
shall not be responsible for the misconduct or negligence of any agent or
attorney (other than an agent who is an employee of the Trustee) appointed with
due care and appointed with the consent of the Company.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within its
rights or powers.
(e) Before the Trustee acts or refrains from acting, it may consult with
counsel of its own selection and the advice or opinion of such counsel as to
matters of law shall be full and complete authorization and protection from
liability in respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution.
(g) The Trustee shall 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 satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, 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 shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the expense of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(i) The Trustee shall not be deemed to have notice of any Event of Default
unless a Trust Officer of the Trustee has actual knowledge thereof or unless the
Trustee shall have received written notice thereof at the Corporate Trust Office
of the Trustee, and such notice references the Securities and this Indenture.
(j) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(k) The permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its gross negligence or willful misconduct.
54
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and coupons and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee, subject to
Section 7.10 hereof. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities or any coupon, it
shall not be accountable for the Company's use of the proceeds from the
Securities, and it shall not be responsible for any statement of the Company in
this Indenture or any document issued in connection with the sale of Securities
or any statement in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing with respect
to the Securities of any series and any Trust Officer has actual knowledge of
such Defaults or Events of Default, the Trustee shall mail to each Holder of
Securities of that series notice of the Default or Event of Default within 30
days after the occurrence thereof. Except in the case of a Default or an Event
of Default in payment on any Security or a Default or Event of Default in
complying with Section 5.01, the Trustee may withhold the notice if and so long
as a committee of its Trust Officers in good faith determines that withholding
the notice is in the interest of Holders of Securities of that series. This
Section 7.05 shall be in lieu of the proviso to (S) 315(b) of the TIA and such
proviso to (S) 315(b) of the TIA is hereby expressly excluded from this
Indenture and the Securities, as permitted by the TIA.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA (S) 313(a), as amended, within 60 days after each May 15
beginning with the first May 15 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall mail to each Holder a report dated as of
such May 15 that complies with TIA (S) 313(a). The Trustee also shall comply
with TIA (S) 313(b), (c) and (d).
A copy of each such report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange, if any, on which the Securities are
listed.
The Company shall promptly notify the Trustee in writing if the Securities
become listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as the Company and the Trustee shall
from time to time agree in writing for its services. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all
disbursements, expenses and advances, including all costs and expenses of
collection (including reasonable fees, disbursements and expenses of its agents
and outside counsel) incurred or made by it in addition to the compensation for
its services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or willful misconduct. Such expenses
shall include the reasonable compensation,
55
disbursements and expenses of the Trustee's agents, accountants, experts and
outside counsel and any taxes or other expenses incurred by a trust created
pursuant to Section 8.01 hereof.
The Company shall fully indemnify the Trustee for, and hold it harmless
against any and all loss, damage, claims, liability or expense, including taxes
(other than franchise taxes imposed on the Trustee and taxes based upon,
measured by or determined by the income of the Trustee), 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 or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent that
such loss, damage, claim, liability or expense is due to its own negligence or
willful misconduct. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. However, the
failure by the Trustee to so notify the Company of a claim of which a Trust
Officer has actual knowledge shall not relieve the Company of its obligations
hereunder unless the Company has been materially prejudiced thereby. The
Company shall defend the claim and the Trustee shall cooperate in the defense at
the Company's expense, provided that the Company shall not be liable in any
--------
action or for which it has assumed the defense for the expenses of separate
counsel to the Trustee unless (1) the employment of separate counsel has been
authorized by the Company, (2) the Trustee has reasonably concluded (based upon
advice of counsel to the Trustee) that there may be legal defenses available to
the Trustee that are different from or in addition to those available to the
Company or (3) a conflict or potential conflict exists (based upon advice of
counsel to the Trustee) between the Trustee and the Company, and provided,
--------
further, that in any such event the Company's reimbursement obligation with
-------
respect to separate counsel of the Trustee will be limited to the reasonable
fees and expenses of such counsel.
The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability incurred by the
Trustee as a result of its own negligence or willful misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Securities of any series against all
money or property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay principal of, premium, if any, or
interest or any Additional Amounts on particular Securities or the Purchase
Price or Redemption Price of any Securities to be purchased pursuant to an Offer
to Purchase or redeemed.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company's rights under this
Section 7.07 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Company's obligations pursuant to
Article Eight and any rejection or termination under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities of
any series may remove the Trustee with respect to that series by so notifying
the Trustee and the Company in writing and may appoint a successor Trustee for
such series with the Company's consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
56
(b) the Trustee is adjudged bankrupt or insolvent or an order for relief
is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or other public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee with respect to Securities of one or more series resigns or
is removed or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the
Company shall promptly appoint a successor Trustee with respect to 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 shall be only one Trustee with respect to the Securities of any
particular series). Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities of such series
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. As promptly as practicable after
that, the retiring Trustee shall transfer, after payment of all sums then owing
to the Trustee pursuant to Section 7.07, all property held by it as Trustee to
the successor Trustee, subject to the Lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have the rights, powers and duties of the Trustee with
respect to the Securities of such series under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder of Securities of such
series.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Securities of
such series may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation or
banking corporation, the resulting, surviving or transferee corporation or
banking corporation without any further act shall be the successor Trustee;
provided, however, that such corporation shall be otherwise qualified and
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eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to act
as Trustee under TIA (S)(S) 310(a)(1) and 310(a)(2). The Trustee or, if a
member of a bank holding company, its parent shall have a combined capital and
surplus of at least $100,000,000 as set forth in its most recent published
annual report of condition. If the Trustee has or shall acquire any
"conflicting interest" within the meaning of TIA (S) 310(b), the Trustee and the
Company shall comply with the provisions of TIA (S) 310(b); provided, however,
-------- -------
that there shall be excluded from the operation of TIA (S) 310(b)(1) any
indenture or indentures
57
under which other securities or certificates of interest or participation in
other securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA (S) 310(b)(1) are met. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
7.10, the Trustee shall resign immediately in the manner and with the effect
hereinbefore specified in this Article Seven. The provisions of TIA (S) 310
shall apply to the Company and any other obligor of the Securities.
SECTION 7.11. Preferential Collection of Claims Against the Company.
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
SECTION 7.12. Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the Company
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations.
The Company may terminate its obligations under this Indenture with respect
to Securities of or within any series and any coupons appertaining thereto as
well as the obligations of the Guarantors under their respective Subsidiary
Guarantees with respect to such series, except those obligations referred to in
the penultimate paragraph of this Section 8.01, if:
(i) either (a) all such Securities theretofore authenticated and delivered
and all coupons appertaining thereto (except lost, stolen or destroyed
Securities and coupons which have been replaced or paid and Securities and
coupons for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for
cancellation or (b) all Securities of such series and any coupons appertaining
thereto not theretofore delivered to the Trustee for cancellation have become
due and payable or have been called for redemption and the Company has
irrevocably deposited or caused to be deposited with the Trustee funds in an
amount in the currency or currencies or currency unit or units in which the
Securities of such series are payable sufficient to pay and discharge the entire
Indebtedness on such Securities and such coupons not theretofore delivered to
the Trustee for cancellation, for principal of, premium, if any, and interest
and any Additional Amounts on such Securities to the date of deposit together
with irrevocable instructions from the Company directing the Trustee to apply
such funds to the payment thereof at maturity or redemption, as the case may be;
(ii) the Company has paid all other sums payable under this Indenture by
the Company; and
58
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent under this
Indenture relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the first paragraph of this Section 8.01, the Company's
obligations in Sections 2.06, 2.07, 2.08, 2.09, 7.07, 8.05 and 8.06 shall
survive until the Securities are no longer outstanding pursuant to the
penultimate paragraph of Section 2.09. After the Securities are no longer
outstanding, the Company's obligations in Sections 7.07, 8.05 and 8.06 shall
survive.
After such delivery or irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's and Guarantors'
obligations under the Securities of such series, the Subsidiary Guarantees and
this Indenture with respect to such Securities except for those surviving
obligations specified above.
SECTION 8.02. Legal Defeasance and Covenant Defeasance.
(a) The Company may terminate its obligations in respect of the
Securities of any series by delivering all outstanding Securities of such series
to the Trustee for cancellation and paying all sums payable by it on account of
principal of, premium, if any, and interest and any Additional Amounts on all
such Securities or otherwise. In addition to the foregoing, the Company may, at
its option, at any time elect to have either paragraph (b) or (c) below be
applied to all outstanding Securities of or within any series, subject in either
case to compliance with the conditions set forth in Section 8.03.
(b) Upon the Company's exercise under paragraph (a) hereof of the option
applicable to this paragraph (b), the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.03, be deemed to have paid and
discharged the entire indebtedness represented by such outstanding Securities
and any coupons appertaining thereto, except for (i) the rights of Holders to
receive payments in respect of the principal of, premium, if any, and interest
and any Additional Amounts on such Securities or any coupons appertaining
thereto when such payments are due, (ii) the Company's obligations with respect
to the Securities of that series under Sections 2.03 through 2.08, inclusive,
2.11, 2.14, 4.03 and 4.17, (iii) the rights, powers, trust, duties and
immunities of the Trustee under this Indenture and the Company's obligations in
connection therewith and (iv) Article Eight of this Indenture (hereinafter,
"Legal Defeasance"). Subject to compliance with this Article Eight, the Company
----------------
may exercise its option under this paragraph (b) notwithstanding the prior
exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option
applicable to this paragraph (c), the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.03, be released from its obligations
under the covenants contained in Sections 4.04 through 4.16, inclusive, and
Article Five with respect to such outstanding Securities and any coupons
appertaining thereto (hereinafter, "Covenant Defeasance") and thereafter any
-------------------
omission to comply with such obligations shall not constitute a Default or an
Event of Default with respect to such Securities. In addition, upon the
Company's exercise under paragraph (a) hereof of the option applicable to this
paragraph (c), subject to the satisfaction of the conditions set forth in
Section 8.03, any failure or omission to comply with such obligations shall not
constitute a Default or Event of Default with respect to the Securities of such
series.
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.
In order to exercise either Legal Defeasance pursuant to Section 8.02(b) or
Covenant Defeasance pursuant to Section 8.02(c):
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(a) the Company shall irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, money (in such currency, currencies or currency unit
or units in which such Securities and any coupons appertaining thereto are then
specified as payable at Maturity) or United States Government Obligations, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest and any Additional Amounts on such
outstanding Securities and any coupons appertaining thereto on the Stated
Maturity date or on the applicable redemption date, as the case may be, and the
Company shall specify whether such Securities are being defeased to Maturity or
to a particular redemption date;
(b) in the case of an election under Section 8.02(b), the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) 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 of Counsel shall confirm that, the Holders of such
outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of an election under Section 8.02(c), the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of such
outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(d) no Default or Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit) or insofar as Sections 6.01(g) and
6.01(h) are concerned, at any time in the period ending on the 91st day after
the date of such deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a Default under any material agreement or
instrument (other than this Indenture) to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of such Securities or any coupons appertaining thereto
over any other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that, assuming no intervening bankruptcy or insolvency of the
Company and that no Holder of such Securities or any coupon appertaining thereto
is an insider of the Company, after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally.
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Notwithstanding the foregoing, the Opinion of Counsel required by clause
(b) above need not be delivered if all such Securities not theretofore delivered
to the Trustee for cancellation (x) have become due and payable, (y) will become
due and payable on the Stated Maturity date within one year or (z) 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.
SECTION 8.04. Application of Trust Money; Trustee Acknowledgment and Indemnity.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 8.03, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of, premium,
if any, and interest and any Additional Amounts on such Securities and any
coupons appertaining thereto.
After such delivery or irrevocable deposit and delivery of an Officers'
Certificate and Opinion of Counsel, the Trustee upon request shall acknowledge
in writing the discharge of the Company's obligations under the Securities of
such series and this Indenture with respect to such series except for those
surviving obligations specified above.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the United States Government
Obligations deposited pursuant to Section 8.03 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such outstanding Securities.
SECTION 8.05. Repayment to Company.
Subject to Sections 7.07 and 8.04, the Trustee shall promptly pay to the
Company upon written request any excess money held by it at any time. The
Trustee shall pay to the Company upon written request any money held by it for
the payment of principal or interest that remains unclaimed for two years;
provided, however, that the Trustee before being required to make any payment
-------- -------
may at the expense of the Company cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that, after a date
specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining shall
be repaid to the Company. After payment to the Company, Holders entitled to
money shall look solely to the Company for payment as general creditors unless
an applicable abandoned property law designates another person and all liability
of the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 8.06. Reinstatement.
If the Trustee is unable to apply any money or United States Government
Obligations in accordance with Section 8.02 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture, such Securities and any coupons appertaining
thereto shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 until such time as the Trustee is permitted to apply
all such money or United States Government Obligations in accordance with
Section 8.02; provided, however, that if the Company has made any payment of
-------- -------
principal of or any premium or interest on any such Security because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities or coupons to receive such payment from the
money or United States Government Obligations held by the Trustee.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a resolution of the
Board of Directors, and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency; provided, however,
-------- -------
that such amendment or supplement does not adversely affect the rights of any
Holder;
(b) to effect the assumption by a successor Person of all obligations
of the Company under the Securities and this Indenture in connection with any
transaction complying with Article Five of this Indenture;
(c) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(d) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional benefit or rights
to the Holders of all or any series of Securities;
(f) to make any other change that does not adversely affect the legal
rights of any Holder under this Indenture;
(g) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities, or to surrender any right or power herein
conferred upon the Company;
(h) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.02;
(i) if allowed without penalty under applicable laws and regulations, to
permit payment in the United States, its territories, its possessions and other
areas subject to its jurisdiction of principal, premium, if any, or interest, if
any, on Bearer Securities or coupons;
(j) to add a Guarantor in accordance with Section 4.14 or otherwise; or
(k) to secure the Securities pursuant to the requirements of Section 4.11
or otherwise;
provided, however, that the Company has delivered to the Trustee an Opinion of
-------- -------
Counsel stating that such amendment or supplement complies with the provisions
of this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and the Guarantors, when authorized by
a Board Resolution, and the Trustee may modify, amend or supplement, or waive
compliance by the Company with any provision of, this Indenture or the
Securities with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each series adversely affected
thereby (with
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the Securities of each series voting as a class). However, without the consent
of each Holder affected, no such modification, amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, may:
(a) reduce the principal amount of Securities affected thereby whose
Holders shall consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the Stated Maturity of any Security
or alter the provisions with respect to the repurchase or redemption of the
Securities (other than provisions relating to Section 4.08 or 4.15);
(c) reduce the rate of or change the time for payment of interest on any
Security, or change the manner in which the amount of interest thereon is
determined;
(d) make any Security payable in money other than that stated in the
Securities;
(e) make any change in the provisions of this Indenture relating to
waivers of past defaults, or the rights of holders of Securities to receive
payments of principal of, premium, if any, or interest or any Additional Amounts
on the Securities;
(f) modify any provisions of Section 6.04 (other than to add sections of
this Indenture or the Securities subject thereto) or 6.07 or this Section 9.02
(other than to add sections of this Indenture or the Securities which may not be
modified, amended, supplemented or waived without the consent of each Holder
affected);
(g) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any provision
of this Indenture or the Securities or for waiver of any Default in respect
thereof;
(h) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Securities of any series (except a
rescission of acceleration of the Securities by the Holders thereof as provided
in Section 6.02 and a waiver of the payment default that resulted from such
acceleration);
(i) waive a repurchase or redemption payment with respect to any Security
(other than a payment required by Section 4.08 or 4.15); or
(j) modify the ranking or priority of any Security or the Subsidiary
Guarantee in respect thereof of any Guarantor in any manner adverse to the
Holders of the Securities.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment, supplement or waiver.
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SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. Record Date for Consents and Effect of Consents.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Securities entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then those persons
who were Holders of Securities at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders of such Securities after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date. The Trustee is entitled to rely upon any electronic
instruction from beneficial owners to the Holders of any Security in global
form.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder, unless it makes a change described in any of clauses (a) through
(i) of Section 9.02. In that case the amendment, supplement or waiver shall
bind each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determine, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture and that such amendment, supplement or waiver
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms (subject to customary exceptions). The Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise. In signing any amendment, supplement or waiver, the
Trustee shall be entitled to receive an indemnity reasonably satisfactory to it.
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee.
Each Guarantor hereby unconditionally, jointly and severally, guarantees
(each, a "Subsidiary Guarantee") to each Holder of a Security authenticated by
--------------------
the Trustee and to the Trustee and its successors and assigns that: the
principal of and interest on the Securities will be promptly paid in full
64
when due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and interest on
any overdue interest on the Securities, to the extent lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or under the
Securities will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof. Each Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that the Subsidiary
Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and this Subsidiary
Guarantee. If any Holder or the Trustee is required by any court or otherwise to
return to the Company, any Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to the Company or any Guarantor, any
amount paid by the Company or any Guarantor to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each Guarantor further agrees that, as between each
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six for the purpose of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forth become due and payable
by each Guarantor for the purpose of this Subsidiary Guarantee.
SECTION 10.02. Severability.
In case any provision of this Subsidiary Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.03. Release of a Guarantor.
If the Securities of any series are defeased in accordance with the terms
of this Indenture, or if Section 5.01(b) is complied with, or if, subject to the
requirements of Section 5.01(a), all or substantially all of the assets of any
Guarantor or all of the Equity Interests of any Guarantor are sold (including by
issuance or otherwise) by the Company in a transaction constituting an Asset
Sale and (x) the Net Cash Proceeds from such Asset Sale are used in accordance
with Section 4.08 or (y) the Company delivers to the Trustee an Officers'
Certificate to the effect that the Net Cash Proceeds from such Asset Sale shall
be used in accordance with Section 4.08 and within the time limits specified by
Section 4.08, then each Guarantor with respect to such series (in the case of
defeasance) or such Guarantor (in the case of compliance with Section 5.01(b) or
in the event of a sale or other disposition of all of the Equity Interests of
such Guarantor) or the corporation acquiring such assets (in the event of a sale
or other disposition of all or substantially all of the assets of such
Guarantor) shall be released and discharged from all obligations under this
Article Ten without any further action required on the part of the Trustee or
any Holder.
The Trustee shall, at the sole cost and expense of the Company and upon
receipt at the reasonable request of the Trustee of an Opinion of Counsel that
the provisions of this Section 10.03 have been complied with, deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate certifying as to the compliance
with this Section 10.03.
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Any Guarantor not so released remains liable for the full amount of principal of
and interest on the Securities and the other obligations of the Company
hereunder as provided in this Article Ten.
SECTION 10.04. Limitation of Guarantor's Liability.
Each Guarantor, and by its acceptance hereof each Holder and the Trustee,
hereby confirms that it is the intention of all such parties that the guarantee
by such Guarantor pursuant to its Subsidiary Guarantee not constitute a
fraudulent transfer or conveyance for purposes of title 11 of the United States
Code, as amended, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar U.S. Federal or state or other applicable law. To
effectuate the foregoing intention, the Holders and each Guarantor hereby
irrevocably agree that the obligations of each Guarantor under its Subsidiary
Guarantee shall be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its
Subsidiary Guarantee or pursuant to Section 10.05, result in the obligations of
such Guarantor under its Subsidiary Guarantee not constituting such a fraudulent
transfer or conveyance under Federal or State law.
SECTION 10.05. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
-----------------
Subsidiary Guarantee, such Funding Guarantor shall be entitled to a contribution
from all other Guarantors in a pro rata amount, based on the net assets of each
Guarantor (including the Funding Guarantor), determined in accordance with GAAP,
subject to Section 10.04, for all payments, damages and expenses incurred by
such Funding Guarantor in discharging the Company's obligations with respect to
the Securities or any other Guarantor's obligations with respect to the
Subsidiary Guarantee.
SECTION 10.06. Execution of Security Guarantee.
To further evidence their Subsidiary Guarantee to the Holders, each of the
Guarantors hereby agrees to execute a Security Guarantee to be endorsed on each
Security ordered to be authenticated and delivered by the Trustee. Each
Security Guarantee shall be substantially in the form set forth in Exhibit A
---------
hereto. Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a Security Guarantee. Each such Security Guarantee
shall be signed on behalf of each Guarantor by two Officers prior to the
authentication of the Security on which it is endorsed, and the delivery of such
Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such Security Guarantee on behalf of such Guarantor.
Such signature upon the Security Guarantee may be manual or facsimile signature
of such officer and may be imprinted or otherwise reproduced on the Security
Guarantee, and in case such officer who shall have signed the Security Guarantee
shall cease to be such officer before the Security on which such Security
Guarantee is endorsed shall have been authenticated and delivered by the Trustee
or disposed of by the Company, such Security nevertheless may be authenticated
and delivered or disposed of as though the Person who signed the Security
Guarantee had not ceased to be such officer of such Guarantor.
SECTION 10.07. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the Company that arises
from the payment, performance or enforcement of such Guarantor's obligations
under its Subsidiary Guarantee or this Indenture, including, without limitation,
any right of subrogation, shall be subject and subordinate to, and
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no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Securities in accordance
with the provisions provided therefor in this Indenture.
ARTICLE ELEVEN
SINKING FUNDS
SECTION 11.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.02 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
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 11.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 11.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than
any previously called for redemption) together, in the case of Bearer Securities
of such series, with all unmatured coupons appertaining thereto and (ii) 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 shall 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 shall
be reduced accordingly.
SECTION 11.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
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,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied be delivering and crediting Securities of that series
pursuant to Section 11.02 and shall also deliver to the Trustee any Securities
to be so delivered to the extent it has not previously done so. Not less than
30 days before each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.03 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 3.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
3.05 and 3.07.
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ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are required to
be a part of this Indenture, and shall, to the extent applicable, be governed by
such provisions. If any provision of this Indenture modifies any TIA provision
that may be so modified, such TIA provision shall be deemed to apply to this
Indenture as so modified. If any provision of this Indenture excludes any TIA
provision that may be so excluded, such TIA provision shall be excluded from
this Indenture.
The provisions of TIA (S)(S) 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
SECTION 12.02. Notices.
Any notice or communication shall be sufficiently given if in writing and
delivered in person, by facsimile and confirmed by overnight courier, or mailed
by first-class mail addressed as follows:
if to the Company:
Metris Companies Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
U.S. Bank Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Where this Indenture provides for notice to Holders of an event, including
any notice delivered in connection with TIA (S)(S) 310(b), 313(c), 314(a) and
315(b), (i) if any of the Securities affected by such event are Registered
Securities, such notice or communication shall be sufficiently given if in
writing and mailed, first-class, postage prepaid, to each such Holder at his
address as it appears in the Register within the time prescribed and (ii) if any
of the Securities affected by such event are Bearer Securities, such notice or
communication shall be sufficiently given if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 2.02. To the extent required by the
TIA, any notice or communication shall also be mailed to any Person described in
TIA (S) 313(c).
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In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice or communication nor any defect in
it shall affect its sufficiency with respect to other Holders. In any case
where notice to Holders of Bearer Securities is given by publication, neither
the failure to publish such notice or communication nor any defect in it shall
affect its sufficiency with respect to other Holders. Except for a notice to
the Trustee, which is deemed given only when received, if a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION 12.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders with
respect to their rights under this Indenture or the Securities. The Company,
the Trustee, the Registrar and any other person shall have the protection of TIA
(S) 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture, the Company shall furnish
to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance satisfactory to
the Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with; provided, however, that with respect to
-------- -------
matters of fact an Opinion of Counsel may rely on an Officers' Certificate
or certificates of public officials.
SECTION 12.05. Statements Required in Certificate.
Each certificate with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the person making such certificate has read such
covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements contained in such certificate
are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
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SECTION 12.07. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE, THE
SECURITIES AND THE SUBSIDIARY GUARANTEES WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 12.08. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder of the Company
or any Guarantor, as such, shall have any liability for any obligations of the
Company or any Guarantor under the Securities or the Subsidiary Guarantees, as
the case may be, or this Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Securities and the Subsidiary
Guarantees.
SECTION 12.09. Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of each Guarantor in this Indenture shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 12.10. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.11. Severability.
In case any provision in this Indenture, in the Securities or in the
Subsidiary Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and a Holder shall have no claim therefor against
any party hereto.
SECTION 12.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary of the Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.13. Legal Holidays.
If a payment date is not a Business Day at a place of payment, payment may
be made at that place on the next succeeding Business Day.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
METRIS COMPANIES INC.
By: _____________________________
Name:
Title:
___________________, as a Guarantor
By: _____________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: _____________________________
Name:
Title:
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EXHIBIT A
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[FORM OF SECURITY GUARANTEE]
SECURITY GUARANTEE
For value received, the undersigned Guarantor (as defined in the Indenture
referred to in the Security upon which this notation is endorsed) hereby
unconditionally guarantees on a senior basis (such Guarantee by the Guarantor
being referred to herein as the "Guarantee") the due and punctual payment of the
---------
principal of, premium, if any, and interest on the Securities, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal, premium and interest on the Securities, and the due
and punctual performance of all other obligations of the Company to the Holders
or the Trustee, all in accordance with the terms set forth in Article Ten of the
Indenture (as defined below). This Guarantee will become effective in
accordance with Article Ten of the Indenture and its terms shall be evidenced
therein. The validity and enforceability of any Guarantee shall not be affected
by the fact that it is not affixed to any particular Security.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Indenture dated as of _________, 2000, among Metris
Companies Inc., each of the Guarantors named therein and U.S. Bank Trust
National Association, as trustee, as amended or supplemented (the "Indenture").
---------
The obligations of the undersigned to the Holders of Securities and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article Ten of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
This Security Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which this
Security Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
This Security Guarantee shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of laws to the extent that the application of the laws of another jurisdiction
would be required thereby.
This Security Guarantee is subject to release upon the terms set forth in
the Indenture.
[GUARANTOR]
By: ____________________________
Name:
Title:
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EXHIBIT B
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FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS
---
OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
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