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IRIDIUM OPERATING LLC
IRIDIUM CAPITAL CORPORATION
as Issuers
TO
[TRUSTEE]
as Trustee
______________
INDENTURE
Dated as of ___________, 1998
______________
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CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 608
610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 701
702
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 703
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 101
1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 107
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NOTE: This reconciliation and tie 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
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE ISSUERS AND THE SUBSIDIARY GUARANTORS . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate; control . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . 4
Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . 4
Issuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Issuers' Request; Issuers' Order . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . 5
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Original Issue Discount Security . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Payment Blockage Period . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities Payment . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register and Security Registrar . . . . . . . . . . . . . . 7
Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Senior Nonmonetary Default . . . . . . . . . . . . . . . . . . . . . 7
Senior Payment Default . . . . . . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary Guarantor . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary Guarantor Payment . . . . . . . . . . . . . . . . . . . . 8
Subsidiary Guarantor Proceeding . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligation . . . . . . . . . . . . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Wholly Owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . 9
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc., to Trustee and Issuers . . . . . . . . . . . . . . . . 12
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . 13
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 110. Joint and Several Liability . . . . . . . . . . . . . . . . . . . . . 13
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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ARTICLE TWO
SECURITY AND SUBSIDIARY GUARANTEE FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . 16
SECTION 204. Form of Legend for Global Securities . . . . . . . . . . . . . . . . 21
SECTION 205. Form of Trustee's Certificate of Authentication . . . . . . . . . . . 21
SECTION 206. Form of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . 24
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . 27
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . 29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . 30
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . 31
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . 33
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . 36
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . 37
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . 38
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . 39
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . . . 40
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SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . 40
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . 40
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . 40
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 515. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . 41
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . 42
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . 43
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . 44
SECTION 608. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . 45
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . 45
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . 46
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 613. Preferential Collection of Claims Against the Issuers . . . . . . . . 48
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . 48
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUERS
SECTION 701. Issuers to Furnish Trustee Names and Addresses
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 702. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 704. Reports by Issuers . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Issuers May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 802. Mergers, Consolidations and Certain Sales of Assets by
Subsidiary Guarantors . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 803. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . 52
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . 53
SECTION 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . 54
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . 55
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . 55
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . 56
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . 56
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . 56
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . 56
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . 57
SECTION 1004. Statement by Officers as to Default . . . . . . . . . . . . . . . . . 58
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1007. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . 59
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . 59
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . 60
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . 61
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . 62
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . 63
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Issuers' Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . 64
SECTION 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions . . . . . . . . . . 66
SECTION 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
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ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. Securities Subordinate to Senior Debt . . . . . . . . . . . . . . . . . 67
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc. . . . . . . . . . . . . 67
SECTION 1403. No Payment When Senior Debt in Default . . . . . . . . . . . . . . . . . 69
SECTION 1404. Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . 70
SECTION 1405. Subrogation to Rights of Holders of Senior Debt . . . . . . . . . . . . 70
SECTION 1406. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . 70
SECTION 1407. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . 71
SECTION 1408. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . 71
SECTION 1409. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1410. Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . 72
SECTION 1411. Trustee Not Fiduciary for Holders of Senior Debt . . . . . . . . . . . . 73
SECTION 1412. Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1413. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . 73
SECTION 1414. Defeasance of this Article Fourteen . . . . . . . . . . . . . . . . . . 73
SECTION 1415. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE FIFTEEN
SUBSIDIARY GUARANTEE
SECTION 1501. Subsidiary Guarantee . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1502. Execution and Delivery of Subsidiary Guarantees . . . . . . . . . . . 77
SECTION 1503. Release of Subsidiary Guarantors . . . . . . . . . . . . . . . . . . 77
ARTICLE SIXTEEN
SUBORDINATION OF SUBSIDIARY GUARANTEES
SECTION 1601. Subsidiary Guarantees Subordinate to Senior Debt . . . . . . . . . . 78
SECTION 1602. Payment Over of Proceeds Upon Dissolution, Etc. . . . . . . . . . . . 78
SECTION 1603. No Payment When Senior Debt of the Issuers in Default . . . . . . . . 80
SECTION 1604. Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . 80
SECTION 1605. Subrogation to Rights of Holders of Senior Debt of
a Subsidiary Guarantor . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1606. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . 81
SECTION 1607. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . 81
SECTION 1608. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . 82
SECTION 1609. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1610. Reliance on Judicial Order or Certificate of Liquidating Agent . . . 83
SECTION 1611. Trustee Not Fiduciary for Holders of Senior Debt of
the Subsidiary Guarantors . . . . . . . . . . . . . . . . . . . 83
SECTION 1612. Rights of Trustee as Holder of Senior Debt of the
Subsidiary Guarantors; Preservation of Trustee's Rights . . . . 84
SECTION 1613. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . 84
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SECTION 1614. Defeasance of this Article Sixteen . . . . . . . . . . . . . . . . . 84
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00
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XXXXXXXXX, dated as of ___________, 1998, among Iridium Operating LLC, a
limited liability company duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Iridium Capital Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
("Iridium Capital" and together with the Company, the "Issuers"), each of the
Subsidiary Guarantors (as hereinafter defined), and [Trustee], a [State] bank
and trust company duly organized and existing under the laws of [State], as
Trustee (herein called the "Trustee").
RECITALS OF THE ISSUERS AND THE SUBSIDIARY GUARANTORS
Each of the Issuers has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make the Guarantees (as hereinafter defined) of each
Subsidiary Guarantor, if endorsed on any Securities, valid agreements of such
Subsidiary Guarantor, and to make this Indenture a valid agreement of each of
the Issuers and each of the Subsidiary Guarantors in accordance with its terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of this instrument;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means, with respect to either Issuer, either the
board of directors of such Issuer or any duly authorized committee of such
board, and with respect to any Subsidiary Guarantor, either the board of
directors of such Subsidiary Guarantor or any duly authorized committee of that
board.
"Board Resolution" means, with respect to either Issuer or a Subsidiary
Guarantor, a copy of a resolution certified by the Secretary or an Assistant
Secretary of the applicable
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Issuer or such Subsidiary Guarantor, as the case may be, to have been duly
adopted by the Board of Directors of such Issuer or such Subsidiary Guarantor,
as the case may be, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of equity interests of
such Person.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture and thereafter "Company" shall mean
such successor Person.
"Corporate Trust Office" means the principal office of the Trustee, at
which at any particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, limited liability
company, limited liability partnership, company, joint-stock company,
partnership or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), and (v) every obligation of the type referred to in clauses (i)
through (iv) of another Person and all dividends of another Person the payment
of which, in either case, such Person has Guaranteed or for which such Person
is responsible or liable, directly or indirectly, jointly or severally, as
obligor, Guarantor or otherwise.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
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"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person guaranteeing any Debt, or dividends or distributions on any
equity security, of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including, without limitation, any
obligation of such Person (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed," "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
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"Issuers" means the Persons named as the "Issuers" in the first paragraph
of this instrument until a successor Person or Persons shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Issuers" shall mean such successor Person or Persons.
"Issuers' Request" or "Issuers' Order" means a written request or order
signed in the name of each of the Issuers by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the applicable Issuer, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the applicable Issuer.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for either Issuer, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than an Issuer) in trust or set aside and segregated in trust by an
Issuer (if an Issuer shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to
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this Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Issuers;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount
of the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by an Issuer or any other obligor upon the Securities or any Affiliate of
an Issuer or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which the Trustee knows to be
so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not an Issuer or any other obligor upon the
Securities or any Affiliate of an Issuer or of such other obligor.
"Paying Agent" means any Person authorized by the Issuers to pay the
principal of or any premium or interest on any Securities on behalf of the
Issuers.
"Payment Blockage Period" has the meaning specified in Section 1403.
"Person" means any individual, corporation, limited liability company or
limited liability partnership, partnership, joint venture, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
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"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
instrument, and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securities Payment" has the meaning specified in Section 1402.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Debt" of any Person means the principal, any premium and interest
on, and other amounts due with respect to, all the Debt of that Person, whether
such Debt exists now or is created, incurred or assumed after the date of this
Indenture. Senior Debt also includes any amendment, renewal replacement,
extension, modification and refunding of any Debt that itself was Senior Debt.
Senior Debt does not include Iridium's 14 1/2% Senior Subordinated Notes due
2006, the Subordinated Notes, or any Debt that expressly states in the
instrument creating or evidencing it that it does not rank senior in right of
payment to the Subordinated Notes.
"Senior Nonmonetary Default" has the meaning specified in Section 1403.
"Senior Payment Default" has the meaning specified in Section 1403.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
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"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such instalment of principal or interest is due and payable.
"Subsidiary" of any Person means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person, or by such Person
and one or more other Subsidiaries of such Person. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Subsidiary Guarantees" means the Guarantees of each Subsidiary Guarantor,
in the form set forth in Section 206 and as provided in Article Fifteen.
"Subsidiary Guarantor" means each of (i) Iridium Roaming LLC, a
Delaware limited liability corporation, Iridium IP LLC, a Delaware limited
liability corporation, and Iridium Facilities Corporation, a Delaware
corporation; (ii) any successor of any of the foregoing; and (iii) any
Subsidiary of the Company which is specified in a duly authorized, executed and
delivered supplemental indenture relating to one or more series of Securities
issued hereunder, until such Subsidiary Guarantor ceases to be such in
accordance with Section 1603 hereof.
"Subsidiary Guarantor Payment" has the meaning specified in Section 1602.
"Subsidiary Guarantor Proceeding" has the meaning specified in Section
1602.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Issuers or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Wholly Owned" means, with respect to any Subsidiary of any Person, the
ownership of all of the outstanding Capital Stock or other ownership interests
of such Subsidiary (other than directors' qualifying shares or investments by
foreign nationals mandated by applicable law) by such Person or one or more
Wholly Owned Subsidiaries of such Person or any combination of the foregoing.
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SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by either of the Issuers to the Trustee
to take any action under any provision of this Indenture, each Issuer shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers' Certificate, if to be given by an officer of an
Issuer, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except for certificates provided
for in Section 1004) shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, 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, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of an Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of an Issuer stating that the
information with respect to such factual matters is in the possession of the
Issuers, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to one or both of
the Issuers (as specified). Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Issuers, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
a certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or either Issuer
in reliance thereon, whether or not notation of such action is made upon such
Security.
The Issuers may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Issuers may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such
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record date. Nothing in this paragraph shall be construed to prevent the
Issuers from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Issuers,
at their own expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Trustee
in writing and to each Holder of Securities of the relevant series in the
manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any declaration
of acceleration referred to in Xxxxxxx 000, (xxx) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Issuers' expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Issuers in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard
to all or any part of the principal amount of such Security or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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SECTION 105. Notices, Etc., to Trustee and Issuers.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by an Issuer or any Subsidiary
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office; or
(2) either Issuer or any Subsidiary Guarantor by the Trustee or by
any Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to it at the address of the Company's principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by it.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
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SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by an Issuer or any
Subsidiary Guarantor shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Joint and Several Liability.
Each of the Issuers shall be jointly and severally liable for the
obligations of the Issuers hereunder and under the Securities.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities or any
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 112. Benefits of Indenture.
Nothing in this Indenture, in the Securities or in the Subsidiary
Guarantees, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the holders of Senior Debt and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 113. Governing Law.
This Indenture, the Securities and the Subsidiary Guarantees shall be
governed by and construed in accordance with the law of the State of New York.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of any Security which specifically states
that such provision shall apply in lieu of this Section)) payment of interest
or principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity.
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ARTICLE TWO
SECURITY AND SUBSIDIARY GUARANTEE FORMS
SECTION 201. Forms Generally.
The Securities of each series and any Subsidiary Guarantees to be
endorsed thereon, if the Board Resolution or supplemental indenture
establishing the terms of any Security provides that such Security is to be
guaranteed by one or more Subsidiary Guarantors, shall be in substantially the
forms set forth in this Article, or in such other form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities or Subsidiary Guarantees,
as the case may be, as evidenced by their execution thereof. If the form of
Securities or Subsidiary Guarantees of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
applicable Issuer or Subsidiary Guarantor and delivered to the Trustee at or
prior to the delivery of the Issuers' Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities and Subsidiary Guarantees to be endorsed
thereon, if the Board Resolution or supplemental indenture establishing the
terms of any Security provides that such Security is to be guaranteed by one or
more Subsidiary Guarantors, shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by
the officers executing such Securities or Subsidiary Guarantees, as the case
may be, as evidenced by their execution of such Securities or Subsidiary
Guarantees, as the case may be.
SECTION 202. Form of Face of Security.
IRIDIUM OPERATING LLC
IRIDIUM CAPITAL CORPORATION
[If the Security is guaranteed by one or more Subsidiary Guarantors,
insert -- GUARANTEED AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST
BY [A SUBSIDIARY] [CERTAIN SUBSIDIARIES] OF THE ISSUERS]
No. ......... $ ........
Iridium Operating LLC, a limited liability company duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), and
Iridium Capital Corporation, a corporation duly organized and existing under
the laws of Delaware (including any successor Person under the Indenture
hereinafter referred to, herein called "Iridium Capital" and together with the
Company, the "Issuers"), for value received,
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hereby promise to pay to ..............................................., or
registered assigns, the principal sum of ........................... Dollars on
................................................................... [if the
Security is to bear interest prior to Maturity, insert -- , and to pay interest
thereon from ............. or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on
............ and ............ in each year, commencing ........., at the rate
of ....% per annum, until the principal hereof is paid or made available for
payment [if applicable, insert -- , provided that any principal and premium,
and any such instalment of interest, which is overdue shall bear interest at
the rate of ...% per annum (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due until they
are paid or made available for payment, and such interest shall be payable on
demand]. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ....... or ....... (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are
due until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the
rate of ......% per annum (to the extent that the payment of such interest on
interest shall be legally enforce able), from the date of such demand until the
amount so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ___________, __, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts [if applicable, insert --;
provided, however, that at the option of the Company payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, each of the Issuers has caused this instrument to be
duly executed under its corporate seal.
Dated:
IRIDIUM OPERATING LLC
By:
---------------------------------
Attest:
---------------------------
Dated:
IRIDIUM CAPITAL CORPORATION
By:
---------------------------------
Attest:
---------------------------
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Issuers (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of [___________], 1998 (herein called
the "Indenture", which term shall have the meaning assigned to it in such
instrument), among the Issuers, the Subsidiary Guarantors and [Trustee], as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Issuers, any Subsidiary Guarantors, the Trustee,
the holders of Senior Debt and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert -- , limited in aggregate principal amount to $...........].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Debt of the Company, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to
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effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes.
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert
-- (1) on ........... in any year commencing with the year ...... and ending
with the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time
[if applicable, insert -- on or after .........., 19..], as a whole or in part,
at the election of the Issuers, at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [if applicable, insert --
on or before ..............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
---- ------------- ---- -------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ............], as a whole or in part, at the
election of the Issuers, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning ............ of the years indicated,
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Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------------- -------------------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Issuers may
not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Issuers (calculated in accordance with generally accepted financial
practice) of less than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert -- not less than
$.......... ("mandatory sinking fund") and not more than] $......... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Issuers otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required
to be made [if applicable, insert -- , in the inverse order in which they
become due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
Defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is guaranteed by one or more Subsidiary Guarantor,
insert -- As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Company under this Security are
Guaranteed on a senior
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subordinated basis pursuant to the Subsidiary Guarantee endorsed hereon. The
Indenture provides that a Subsidiary Guarantor shall be released from its
Subsidiary Guarantee upon compliance with certain conditions.]
[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Issuers' obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuers [If the Security is guaranteed by one or more Subsidiary Guarantors,
insert -- and the Subsidiary Guarantor[s]] and the rights of the Holders of
the Securities of each series to be affected under the Indenture at any time by
the Issuers [If the Security is guaranteed by one or more Subsidiary
Guarantors, insert -- , the Subsidiary Guarantor[s]] and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Issuers
[If the Security is guaranteed by one or more Subsidiary Guarantors, insert --
or the Subsidiary Guarantor[s]] with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity.
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The foregoing shall not apply to any suit instituted by the Holder of this
Security for the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Issuers, which is
absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuers in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuers and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $....... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuers may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Issuers [If the Security is guaranteed by one or more Subsidiary
Guarantors, insert -- , the Subsidiary Guarantor[s]], the Trustee and any
agent of the Issuers [If the Security is guaranteed by one or more Subsidiary
Guarantors, insert -- , the Subsidiary Guarantor[s]], or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Issuers
[If the Security is guaranteed by one or more Subsidiary Guarantors, insert --
, the Subsidiary Guarantor[s]], the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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SECTION 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every 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 DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
[TRUSTEE],
As Trustee
By..............................
Authorized Officer
SECTION 206. Form of Guarantee.
If the Securities are to be Guaranteed by any Guarantor Subsidiary, the
Guarantee shall be in substantially the following form:
GUARANTEE
For value received, each of the Subsidiary Guarantors named (or deemed
herein to be named) below hereby jointly and severally fully and
unconditionally guarantees to the Holder of the Security upon which this
Subsidiary Guarantee is endorsed, and to the Trustee on behalf of such Holder,
the due and punctual payment of the principal of (and premium, if any) and
interest on such Security when and as the same shall become due and payable,
whether at the Stated Maturity, by acceleration, call for redemption, offer to
purchase or otherwise, according to the terms thereof and of the Indenture
referred to therein. In case of the failure of the Issuers punctually to make
any such payment, each of the Subsidiary Guarantors hereby jointly and
severally agrees to cause such payment to be made punctually when and as the
same shall become due and payable, whether at the Stated Maturity or by
acceleration, call for redemption, offer to purchase or otherwise, and as if
such payment were made by the Issuers.
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Each of the Subsidiary Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be absolute and unconditional,
irrespective of, and shall be unaffected by, the validity, regularity or
enforceability of such Security or the Indenture, the absence of any action to
enforce the same or any release, amendment, waiver or indulgence granted to
either Issuer or any other guarantor, or any consent to departure from any
requirement of any other guarantee of all or of any of the Securities, or any
other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor. Each of the Subsidiary
Guarantors hereby waives the benefits of diligence, presentment, demand of
payment, any requirement that the Trustee or any of the Holders protect,
secure, perfect or insure any security interest in or other lien on any
property subject thereto or exhaust any right or take any action against either
Issuer or any other Person or any collateral, filing of claims with a court in
the event of insolvency or bankruptcy of either Issuer, any right to require a
proceeding first against either Issuer, protest or notice with respect to such
Security or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in such Security and in this
Subsidiary Guarantee. Each Subsidiary Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or
any of the Holders are prevented by applicable law from exercising their
respective rights to accelerate the maturity of the Securities, to collect
interest on the Securities, or to enforce or exercise any other right or remedy
with respect to the Securities, such Subsidiary Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
The indebtedness of each Subsidiary Guarantor evidenced by this Subsidiary
Guarantee is, to the extent provided in the Indenture, subordinate and subject
in right of payment to the prior payment in full of all Senior Debt of such
Subsidiary Guarantor, and this Subsidiary Guarantee is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes.
No reference herein to the Indenture and no provision of this Subsidiary
Guarantee or of the Indenture shall alter or impair the Subsidiary Guarantee of
any Subsidiary Guarantor, which is absolute and unconditional, of the due and
punctual payment of the principal (and premium, if any) and interest on the
Security upon which this Subsidiary Guarantee is endorsed.
Each Subsidiary Guarantor shall be subrogated to all rights of the Holder
of this Security against the Issuers in respect of any amounts paid by such
Subsidiary Guarantor on account of this Security pursuant to the provisions of
its Subsidiary Guarantee or the Indenture; provided, however, that such
Subsidiary Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until the
principal of (and premium, if any) and interest on this Security and all other
Securities issued under the Indenture shall have been paid in full.
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This Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against either
Issuer for liquidation or reorganization, should either Issuer become insolvent
or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any part of either Issuer's assets, and shall,
to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Securities is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any Holder of the Securities, whether
as a "voidable preference," "fraudulent transfer," or otherwise, all as though
such payment or performance had not been made. In the event that any payment,
or any part thereof, is rescinded, reduced, restored or returned, the
Securities shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
Each of the Subsidiary Guarantors shall be released from this Subsidiary
Guarantee upon the terms and subject to certain conditions provided in the
Indenture.
By delivery of a Supplemental Indenture to the Trustee in accordance with
the terms of the Indenture, each Person that becomes a Subsidiary Guarantor
after the date of the Indenture will be deemed to have executed and delivered
this Subsidiary Guarantee for the benefit of the Holder of the Security upon
which this Subsidiary Guarantee is endorsed with the same effect as if such
Subsidiary Guarantor was named below and has executed and delivered this
Subsidiary Guarantee.
All terms used in this Subsidiary Guarantee which are defined in the
Indenture referred to in the Security upon which this Subsidiary Guarantee is
endorsed shall have the meanings assigned to them in such Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Subsidiary Guarantee is endorsed shall have been executed by the Trustee under
the Indenture by manual signature.
Reference is made to the Indenture for further provisions with respect to
this Subsidiary Guarantee.
THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, each of the following Subsidiary Guarantors has
caused this Subsidiary Guarantee to be duly executed.
[Insert name of each Subsidiary
Guarantor that is Guaranteeing
the Security --]
By
-----------------------------------
Title:
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Attest
----------
Title:
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in
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whole or in part, at the option of the Issuers and, if other than by a Board
Resolution, the manner in which any election by the Issuers to redeem the
Securities shall be evidenced;
(8) the obligation, if any, of the Issuers to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions upon
which any 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, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and the
manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(12) whether the Securities shall be guaranteed by one or more
Subsidiary Guarantors as provided in Article Fifteen;
(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section
502;
(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 applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303
or both such Sections and, if other than by a Board Resolution, the manner
in which any election by the Issuers to defease such Securities shall be
evidenced;
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(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 204 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(17) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
the Board Resolution referred to above and (subject to Section 303) set forth,
or determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the applicable
Issuer and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior Debt
as provided in Article Fourteen.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
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SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of each Issuer by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of an Issuer shall bind such Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuers may deliver Securities of any series executed by
the Issuers, and if guaranteed by any of the Subsidiary Guarantees, having
endorsed thereon the Subsidiary Guarantees executed as provided in Section 1502
by such Subsidiary Guarantors, to the Trustee for authentication, together with
an Issuers' Order for the authentication and delivery of such Securities with
such Subsidiary Guarantees, if any, endorsed thereon, and the Trustee in
accordance with the Issuers' Order shall authenticate and deliver such
Securities as in this Indenture provided and not otherwise. If the form or
terms of the Securities of the series have been established by or pursuant to
one or more Board Resolutions as permitted by Sections 201 and 301, 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 Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form has
been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Issuers in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Issuers enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
and
(4) that any Subsidiary Guarantees endorsed on such Securities, when
such Securities have been authenticated and delivered by the Trustee and
issued by the Issuers in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute legal and valid obligations of
each Subsidiary Guarantor whose name appears on such Subsidiary Guarantees
enforceable in accordance with their terms, subject to bankruptcy,
insolvency,
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fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Issuers' Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security, or Subsidiary Guarantee if endorsed thereon, shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and that each Subsidiary Guarantee endorsed thereon has
been duly endorsed and delivered hereunder. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered hereunder but never
issued and sold by the Issuers, and the Issuers shall deliver such Security to
the Trustee for cancellation as provided in Section 309, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Issuers may execute, and upon the Issuers' Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Issuers will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at any
office or agency of the Issuers in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Issuers shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
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Securities of the same series, of any authorized denominations, like tenor and
aggregate principal amount. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Issuers shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Issuers in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuers shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series
at the office or agency of the Issuers in a Place of Payment for that series,
the Issuers shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of like
tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Issuers shall execute and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuers, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Issuers or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuers and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuers may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Issuers shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for
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redemption under Section 1103 and ending at the close of business on the day of
such mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof
or custodian therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or
a nominee thereof unless (A) such Depositary (i) has notified the Issuers
that it is unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Issuers
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuers and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Issuers or the Trustee that such Security has been acquired by a bona fide
purchaser, the Issuers shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen
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Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Issuers in their discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuers may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuers, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date 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 Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Issuers, at their election in each
case, as provided in Clause (1) or (2) below:
(1) The Issuers may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Issuers shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Issuers shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a
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Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Issuers of such Special Record Date and, in the name
and at the expense of the Issuers, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be given to each Holder of Securities of such series in the manner set
forth in Section 106, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2).
(2) The Issuers may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Issuers to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Issuers, any Subsidiary Guarantor, the Trustee and any agent of the Issuers,
such Subsidiary Guarantor or the Trustee may treat the Person in whose name
such Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 307)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Issuers, any Subsidiary
Guarantor, the Trustee nor any agent of the Issuers, such Subsidiary Guarantor
or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. Either Issuer may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which either Issuer may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Issuers have not issued and sold, and all Securities
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so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by an Issuers'
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon the Issuers' Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Issuers, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuers and thereafter repaid to the
Issuers or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) 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
Issuers,
and the Issuers or a Subsidiary Guarantor, in the case of (i), (ii) or
(iii) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money in an amount sufficient to pay
and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and any premium
and interest to the date of such
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deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Issuers or a Subsidiary Guarantor has paid or caused to be paid
all other sums payable hereunder by the Issuers and the Subsidiary
Guarantors; and
(3) the Issuers have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuers to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including either of the Issuers acting as the Issuers' own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the principal
and any premium and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of
Article Fourteen or be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
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(4) default in the performance, or breach, of any covenant or warranty
of an Issuer in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Issuers
by the Trustee or to the Issuers and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Securities of any series other than that series) having an
aggregate principal amount outstanding of at least $10,000,000, or under any
mortgage, indenture or instrument (including this Indenture) under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company having an aggregate principal
amount outstanding of at least $10,000,000, whether such indebtedness now
exists or shall hereafter be created, which default (A) shall constitute a
failure to pay any portion of the principal of such indebtedness when due and
payable after the expiration of any applicable grace period with respect
thereto or (B) shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without, in the case of Clause (A), such indebtedness
having been discharged or without, in the case of Clause (B), such
indebtedness having been discharged or such acceleration having been
rescinded or annulled, in each such case within a period of 10 days after
there shall have been given, by registered or certified mail, to the Issuers
by the Trustee or to the Issuers and the Trustee by the Holders of at least
10% in principal amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the Issuers to cause
such indebtedness to be discharged or cause such acceleration to be rescinded
or annulled, as the case may be, and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the provisions of
Sections 601 and 602, the Trustee shall not be deemed to have knowledge of
such default unless either (A) a Responsible Officer of the Trustee shall
have actual knowledge of such default or (B) the Trustee shall have received
written notice thereof from an Issuer, from any Holder, from the holder of
any such indebtedness or from the trustee under any such mortgage, indenture
or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of the
property of the Company,
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or ordering the winding up or liquidation of the affairs of the Company, and
the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive days;
or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company to the entry of a decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against the Company, or the filing by the
Issuers of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by the Company to
the filing of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of the property of
the Company, or the making by the Company of an assignment for the benefit
of creditors, or the admission by the Company in writing of its inability to
pay its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(8) 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 Subsidiary Guarantor, or any person acting on behalf of
such a Subsidiary Guarantor, shall deny or disaffirm its obligations under
a Subsidiary Guarantee, provided that this event constitutes an Event of
Default only in respect of Securities guaranteed by such Subsidiary
Guarantor; or
(9) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all the
Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Issuers (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 501(6) or 501(7) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
that series (or, if any Securities of that series
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are Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof) shall automatically,
and without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Issuers and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Issuers or any Subsidiary Guarantor have paid or deposited with
the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuers covenant that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
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the Issuers will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as 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.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to either Issuer, any
Subsidiary Guarantor or any other obligor upon the Securities, or the property
of either Issuer or its creditors or of any Subsidiary Guarantor and its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture 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 be a member of a creditors'
or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the
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reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
and
SECOND: Subject to Article Fourteen, to the payment of the amounts then
due and unpaid for principal of and any premium and interest on the
Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal
and any premium and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to
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enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Issuers, any Subsidiary Guarantor, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
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SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Issuers
or any Subsidiary Guarantor.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
Each of the Issuers covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at
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any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and each of the Issuers (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, 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 in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Issuers mentioned herein shall be
sufficiently evidenced by an Issuers' Request or Issuers' Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
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(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) 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 against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) 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 Issuers,
personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities and any Subsidiary
Guarantees endorsed thereon, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuers or such
Subsidiary Guarantors, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or any Subsidiary Guarantees endorsed thereon.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Issuers of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Issuers or any Subsidiary Guarantor, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Issuers and
any Subsidiary
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Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed with the Issuers or any Subsidiary Guarantor, as the case may
be.
SECTION 607. Compensation and Reimbursement.
The Issuers jointly and severally agree
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series [or a trustee under -- list here any prior
indentures between the Issuers and the Trustee that have not been satisfied and
discharged and that may be excluded by the proviso to Section 310(b)(1) of the
Trust Indenture Act].
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Issuers. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Issuers.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Issuers or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Issuers or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who
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has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Issuers and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Issuers or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Issuers, any
Subsidiary Guarantor,
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the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Issuers or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Issuers and the
Subsidiary Guarantors, if any, shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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SECTION 613. Preferential Collection of Claims Against the Issuers.
If and when the Trustee shall be or become a creditor of either Issuer,
any Subsidiary Guarantor or any other obligor upon the Securities or any
Subsidiary Guarantee, the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against such Issuer,
such Subsidiary Guarantor or any such other obligor.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated, and any Subsidiary
Guarantees endorsed thereon, shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
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Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 106 to all Holders
of Securities of the series with respect to which such Authenticating Agent
will serve. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
........................................,
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUERS
SECTION 701. Issuers to Furnish Trustee Names and Addresses of Holders.
The Issuers will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 45 days after each Interest Payment
Date for each series of Securities, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of
such series as of the preceding Interest Payment Date, and
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(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuers of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Issuers, any Subsidiary Guarantor and the Trustee that neither the
Issuers, such Subsidiary Guarantors nor the Trustee nor any agent of any of
them shall be held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Issuers. The Issuers
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Issuers.
The Issuers shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the
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Exchange Act shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Issuers May Consolidate, Etc., Only on Certain Terms.
Neither of the Issuers may, in a single transaction or a series of
regulated transactions, consolidate with or merge into any other Person (other
than a Wholly Owned Subsidiary) or convey, transfer or lease its properties and
assets substantially as an entirety to any Person (other than a Wholly Owned
Subsidiary), and neither of the Issuers shall permit any Person (other than a
Wholly Owned Subsidiary) to consolidate with or merge into such Issuer or
convey, transfer or lease its properties and assets substantially as an entirety
to such Issuer, unless:
(1) in case either Issuer shall consolidate with or merge into another
Person (other than a Wholly Owned Subsidiary) or convey, transfer or lease
its properties and assets substantially as an entirety to any Person (other
than a Wholly Owned Subsidiary), the Person formed by such consolidation or
into which such Issuer is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the applicable
Issuer substantially as an entirety shall be a corporation, partnership or
trust, shall be organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest on all the
Securities and the performance or observance of every covenant of this
Indenture on the part of such Issuer to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of either Issuer or a Subsidiary
of the Company as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of either of the Issuers
or any Subsidiary would become subject to a mortgage, pledge,
lien, security interest or other encumbrance which would not be permitted by
this Indenture, such Issuer, such Subsidiary or such successor
Person, as the case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or prior to)
all indebtedness secured thereby; and
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(4) Such Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Mergers, Consolidations and Certain Sales of Assets by
Subsidiary Guarantors.
Except in a transaction resulting in the release of a Subsidiary Guarantor
in accordance with Section 1503, no Subsidiary Guarantor shall, and the Issuers
shall not permit any Subsidiary Guarantor to, (a) consolidate with or merge into
any Person (other than the Issuers or a Wholly-Owned Subsidiary or a Subsidiary
Guarantor) or permit any Person (other than a Wholly-Owned Subsidiary or a
Subsidiary Guarantor) to consolidate with or merge into such Subsidiary
Guarantor or (b) directly or indirectly, in one or a series of transactions,
transfer, convey, sell, lease or otherwise dispose of all or substantially all
of its properties and assets; unless, in each case:
(1) in a transaction (or series) in which such Subsidiary Guarantor
does not survive or in which all or substantially all of the properties and
assets of such Subsidiary Guarantor are transferred, conveyed, sold, leased
or otherwise disposed of, the successor entity (the "Successor Subsidiary
Guarantor") is a corporation, partnership, limited liability company or
business trust, is organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia and
expressly assumes by an indenture supplemental hereto executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of all obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee and this Indenture and the performance of every covenant of this
Indenture on the part of such Subsidiary Guarantor to be performed or
observed; and
(2) the applicable Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 803. Successor Substituted.
Upon any consolidation of either Issuer with, or merger of either Issuer
into, any other Person or any conveyance, transfer or lease of the properties
and assets of either Issuer substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which
such Issuer is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, such Issuer under this Indenture with the same effect as if such
successor Person had been named as the such Issuer herein, and
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thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
Upon any consolidation of a Subsidiary Guarantor with, or merger of such
Subsidiary Guarantor into, any other Person or any transfer, conveyance, sale,
lease or other disposition of all or substantially all of the properties and
assets of such Subsidiary Guarantor in accordance with Section 802, the
Successor Subsidiary Guarantor shall succeed to, and be substituted for, and
may exercise every right and power of, such Subsidiary Guarantor under this
Indenture or any supplemental indenture with the same effect as if such
successor Person had been named as a Subsidiary Guarantor herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture, any
supplemental indenture and its Subsidiary Guarantee.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, each Issuer, when authorized by a
Board Resolution of such Issuer, the Subsidiary Guarantors, when authorized by
their respective Board Resolutions, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to an Issuer or any
Subsidiary Guarantor and the assumption by any such successor of the
covenants of such Issuer or Subsidiary Guarantor herein and in the
Securities or Subsidiary Guarantee, as the case may be; or
(2) to add to the covenants of the Issuers for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Issuers; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events of
Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change
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or elimination (A) shall neither (i) apply to any Security of any series
created prior to the execution of such supplemental indenture and entitled
to the benefit of such provision nor (ii) modify the rights of the Holder of
any such Security with respect to such provision or (B) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture, provided that such action pursuant to this
Clause (9) shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
(10) to establish any Subsidiary Guarantors pursuant to Section 1502.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Issuers, any
Subsidiary Guarantor and the Trustee, each Issuer, when authorized by a Board
Resolution of such Issuer, such Subsidiary Guarantor, when authorized by their
respective Board Resolutions, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or currency
in which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or modify the provisions of this Indenture
with respect to the subordination of the Securities in a manner adverse to
the Holders, or
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(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1008, or the
deletion of this proviso, in accordance with the requirements of Sections
611 and 901(8), or
(4) modify any of the provisions of this Indenture relating to the
subordination of any Securities or the Subsidiary Guarantees in a manner
adverse to the Holders.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. No such supplemental indenture shall
directly or indirectly modify the provisions of Article Fourteen or Article
Sixteen in any manner which might terminate or impair or
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otherwise adversely affect the rights of the Senior Debt pursuant to such
subordination provisions.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Issuers and the
Subsidiary Guarantors, if any, shall so determine, new Securities of any series
so modified as to conform, in the opinion of the Trustee, the Issuers and such
Subsidiary Guarantors, to any such supplemental indenture may be prepared and
executed by the Issuers, the Subsidiary Guarantees, if any, may be endorsed
thereon and such new Securities authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Issuers jointly and severally covenant and agree for the benefit of
each series of Securities that they will duly and punctually pay the principal
of and any premium and interest on the Securities of that series in accordance
with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Issuers will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Issuers or any Subsidiary Guarantor in respect of the Securities of
that series, any Subsidiary Guarantee endorsed thereon and this Indenture may
be served. The Issuers will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuers shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Issuers hereby appoint the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
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The Issuers may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Issuers of their obligation to maintain an
office or agency in each Place of Payment for Securities of any series for such
purposes. The Issuers will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If either Issuer shall at any time act as the Issuers' own Paying Agent
with respect to any series of Securities, it will, on or before each due date
of the principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Issuers shall have one or more Paying Agents for any series
of Securities, they will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Issuers will promptly notify the Trustee of their action or failure so to act.
The Issuers will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Issuers may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by the Issuers' Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Issuers or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Issuers or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
either Issuer, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Issuers on the Issuers' Request, or (if then held by either Issuer)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look
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only to the Issuers for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Issuers as trustees thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Issuers cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Issuers.
SECTION 1004. Statement by Officers as to Default.
The Issuers will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Issuers ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers
thereof either Issuer is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if an Issuer
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, each Issuer will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that an
Issuer shall not be required to preserve any such right or franchise if the
Board of Directors of such Issuer shall determine that the preservation thereof
is no longer desirable in the conduct of the business of such Issuer and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
the business of the Company and its Subsidiaries to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Board of Directors of the Company,
desirable in the conduct of the business of the Company and its Subsidiaries
and not disadvantageous in any material respect to the Holders.
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SECTION 1007. Payment of Taxes and Other Claims.
Each Issuer will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or upon its income, profits or
property, and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon its property; provided, however, that
neither Issuer shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Issuers may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(18),
901(2) or 901(7) for the benefit of the Holders of such series if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Issuers and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities 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 301 for such Securities) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Issuers to redeem any Securities shall be evidenced
by a Board Resolution of both of the Issuers or in another manner specified as
contemplated by Section 301 for such Securities. In case of any redemption at
the election of the Issuers of less than all the Securities of any series
(including any such redemption affecting only a single Security), the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the
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expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, each of the Issuers shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed
or unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
a portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects
only a single Security), the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Issuers in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to
be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Issuers or, at the Issuers' request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Issuers shall deposit with the Trustee
or with a Paying Agent (or, if the Issuers are acting as their own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Issuers shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Issuers at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 301, instalments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
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SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Issuers or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Issuers and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Issuers shall execute the
Security, and a Subsidiary Guarantor shall endorse thereon (if a Subsidiary
Guarantee was endorsed on the Security to be redeemed), and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities 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
such Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Issuers (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Issuers 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 any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
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SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Issuers will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, 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 by delivering and crediting Securities pursuant
to Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 45 days prior to 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 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Issuers
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Issuers' Option to Effect Defeasance or Covenant Defeasance.
The Issuers may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the Issuers' exercise of their option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Issuers and Subsidiary Guarantors, if any, shall be deemed to have been
discharged from their obligations, and the provisions of Articles Fourteen and
Sixteen shall cease to be effective, with respect to such Securities as
provided in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Defeasance"). For this purpose,
such Defeasance means that (a) the Issuers shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and to have
satisfied all their other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of
the Issuers, shall execute proper instruments acknowledging the same), and (b)
the Subsidiary Guarantors, if any, shall be released from their respective
Subsidiary Guarantees, subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal
of and any premium and interest on such Securities when payments are due, (2)
the obligations of the Issuers and the Subsidiary
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Guarantors, if any, with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Issuer's obligations in connection therewith and
(4) this Article. Subject to compliance with this Article, the Issuers may
exercise their option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
SECTION 1303. Covenant Defeasance.
Upon the Issuers' exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Issuers shall be released from its obligations under Sections 801(3), 1006
and 1007, and any covenants provided pursuant to Section 301(18), 901(2) or
901(7) for the benefit of the Holders of such Securities, (2) the occurrence of
any event specified in Sections 501(4) (with respect to any of Sections 801(3),
1006 and 1007, and any such covenants provided pursuant to Section 301(18),
901(2) or 901(7)), 501(5) and 501(9) shall be deemed not to be or result in an
Event of Default and (3) the provisions of Articles Fourteen and Sixteen shall
cease to be effective, in each case with respect to such Securities as provided
in this Section on and after the date the conditions set forth in Section 1304
are satisfied (hereinafter called "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means that, with respect to such Securities, the
Issuers may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such specified Section (to the
extent so specified in the case of Section 501(4)) or Article Fourteen or
Sixteen, whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or Article or by reason of any reference in any such
Section or Article to any other provision herein or in any other document, but
the remainder of this Indenture and such Securities and Subsidiary Guarantees,
if any, shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
(1) The Issuers shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, in each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and any premium and interest on such Securities
on the respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities. As used herein, "U.S. Government
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Obligation" means (x) any security which is (i) a direct obligation of the
United States of America for the payment of which the full faith and credit
of the United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case (i) or (ii), is not callable or redeemable at
the option of the issuer thereof, and (y) any depositary receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified in Clause (x)
above and held by such bank for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of or interest
on any U.S. Government Obligation which is so specified and held, provided
that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating 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 instrument, there has
been a change in the applicable Federal income tax law, in either case (A)
or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be subject
to Federal income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit, Defeasance and discharge were
not to occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Issuers
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Issuers shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections 501(6) and (7), at
any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
after such 90th day).
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(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which each Issuer is a party or by which either Issuer is
bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Debt shall have occurred
and be continuing, (B) no event of default with respect to any Senior Debt
shall have resulted in such Senior Debt becoming, and continuing to be, due
and payable prior to the date on which it would otherwise have become due
and payable (unless payment of such Senior Debt has been made or duly
provided for), and (C) no other event of default with respect to any Senior
Debt shall have occurred and be continuing permitting (after notice or lapse
of time or both) the holders of such Senior Debt (or a trustee on behalf of
such holders) to declare such Senior Debt due and payable prior to the date
on which it would otherwise have become due and payable.
(10) Each Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 1304 in respect
of any Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required by law.
Money and U.S. Government Obligations so held in trust shall not be subject to
the provisions of Article Fourteen or Article Sixteen.
The Issuers and each Subsidiary Guarantor, if any, shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
1304 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
Outstanding Securities.
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Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuers from time to time upon the Issuers' Request
any money or U.S. Government Obligations held by it as provided in Section 1304
with respect to any Securities which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities and any Subsidiary Guarantees from which the
Issuers and Subsidiary Guarantors have been discharged or released pursuant to
Section 1302 or 1303 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities and
Subsidiary Guarantees, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with
respect to such Securities in accordance with this Article; provided, however,
that if either Issuer or any Subsidiary Guarantor makes any payment of
principal of or any premium or interest on any such Security following such
reinstatement of its obligations, such Issuer or such Subsidiary Guarantor
shall be subrogated to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. Securities Subordinate to Senior Debt.
Each Issuer covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to the provisions of
Article Four and Article Fifteen), the payment of the principal of (and
premium, if any) and interest on each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full of all Senior Debt.
SECTION 1402. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to an Issuer or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of an Issuer, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities
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of an Issuer, then and in any such event specified in (a), (b) or (c) above
(each such event, if any, herein sometimes referred to as a "Proceeding") the
holders of Senior Debt shall be entitled to receive payment in full of all
amounts due or to become due on or in respect of all Senior Debt, or provision
shall be made for such payment in cash or cash equivalents or any other manner
acceptable to the holders of such Senior Debt, before the Holders of the
Securities are entitled to receive any payment or distribution of any kind or
character, whether in cash, property or securities (including any payment or
distribution which may be payable or deliverable by reason of the payment of
any other Debt of such Issuer subordinated to the payment of the Securities,
such payment or distribution being hereinafter referred to as a "Junior
Subordinated Payment" but excluding any payment or distribution of stock or
securities of such Issuer provided for by a plan of reorganization or
readjustment authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy law
or of any other corporation provided for by such plan of reorganization or
readjustment which stock or securities are subordinated in right of payment to
all then outstanding Senior Debt to substantially the same extent as the
Securities are so subordinated as provided in this Article), on account of
principal of (or premium, if any) or interest on the Securities or on account
of any purchase or redemption or other acquisition of Securities by such Issuer
or any Subsidiary of such Issuer (all such payments, distributions, purchases,
redemptions and acquisitions herein referred to, individually and collectively,
as a "Securities Payment"), and to that end the holders of Senior Debt shall be
entitled to receive, for application to the payment thereof, any Securities
Payment which may be payable or deliverable in respect of the Securities in any
such Proceeding.
Any Securities Payments to which the Trustee or the Holders would be
entitled but for the provisions of this Article shall be paid by the
liquidating trustee or agent or other Person making such Securities Payment,
whether a trustee in bankruptcy, a receiver or otherwise, directly to the
holders of Senior Debt or their representative or representatives or to any
trustee or agent under any indenture or other agreement evidencing or governing
any such Senior Debt, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Debt held or represented by each of them, to
the extent necessary to make payment in full of all Senior Debt remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Debt. As used in this Article, the phrase "payment in
full" (or any similar phrase), when used to refer to the payment of Senior
Debt, shall mean payment in full of the aggregate amount of such Senior Debt in
cash or cash equivalents or any other manner acceptable to the holders of such
Senior Debt.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt is paid in full or payment thereof
provided for in cash or cash equivalents or any other manner acceptable to the
holders of such Senior Debt, then and in such event such Securities Payment
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of such Issuer for application to the
payment of all Senior Debt remaining unpaid, to the extent necessary to pay all
Senior Debt in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
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The consolidation of an Issuer with, or the merger of an Issuer into,
another Person or the liquidation or dissolution of an Issuer following the
conveyance or transfer of all or substantially all of its properties and assets
as an entirety to another Person upon the terms and conditions set forth in
Article Eight shall not be deemed a Proceeding for the purposes of this Section
if the Person formed by such consolidation or into which such Issuer is merged
or the Person which acquires by conveyance or transfer such properties and
assets as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Eight.
SECTION 1403. No Payment When Senior Debt in Default.
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment shall be made
unless and until such Senior Payment Default shall have been cured or waived or
shall have ceased to exist or all amounts then due and payable in respect of
Senior Debt shall have been paid in full, or provision shall have been made for
such payment in cash or cash equivalents or any other manner acceptable to the
holders of the Senior Debt. "Senior Payment Default" means any default in the
payment of principal of (or premium, if any) or interest on or in respect of
any Senior Debt when due, whether at the stated maturity of any such payment or
by declaration of acceleration, call for redemption or otherwise, including any
default in the payment of a reimbursement obligation with respect to a letter
of credit when due.
In the event that any Senior Nonmonetary Default (as defined below) shall
have occurred and be continuing, then, upon the receipt by the Issuers and the
Trustee of written notice of such Senior Nonmonetary Default no Securities
Payment shall be made during the period (the "Payment Blockage Period")
commencing on the date of such receipt of such written notice and ending on the
earlier of (i) the date on which the Senior Debt to which such Senior
Nonmonetary Default relates shall have been discharged or such Senior
Nonmonetary Default shall have been waived or otherwise cured and (ii) the
179th day after the date of such receipt of such written notice. No more than
one Payment Blockage Period may be commenced with respect to the Securities
during any 360-day period and there shall be a period of at least 181
consecutive days in each 360-day period when no Payment Blockage Period is in
effect. For all purposes of this paragraph, no Senior Nonmonetary Default that
existed or was continuing on the date of commencement of any Payment Blockage
Period shall be, or be made, the basis for the commencement of a subsequent
Payment Blockage Period by holders of Senior Debt or their representatives
unless such Senior Nonmonetary Default shall have been cured or waived for a
period of not less than 90 consecutive days. The limitations on Payment
Blockage Periods set forth in this paragraph shall not be construed to limit or
affect the provisions of the preceding paragraph. "Senior Nonmonetary Default"
means the occurrence or existence and continuance of any default with respect
to any Senior Debt, other than a Senior Payment Default, permitting after
notice or lapse of time (or both) the holders of such Senior Debt (or a trustee
or other agent on behalf of the holders thereof) to declare such Senior Debt
due and payable prior to the date on which it would otherwise become due and
payable.
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In the event that, notwithstanding the foregoing, any Securities Payment
is made to the Trustee or any Holder prohibited by the foregoing provisions of
this Section, then and in such event such Securities Payment shall be paid over
and delivered forthwith to the Issuers.
The provisions of this Section shall not apply to any Securities Payment
with respect to which Section 1402 would be applicable.
SECTION 1404. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) either Issuer, at any time except
during the pendency of any Proceeding referred to in Section 1402 or under the
conditions described in Section 1403, from making Securities Payments, or (b)
the application by the Trustee of any money deposited with it hereunder to
Securities Payments, if, at the time of such application by the Trustee, it did
not have knowledge that such Securities Payment would have been prohibited by
the provisions of this Article; provided that clause (b) of the foregoing shall
not be construed to permit the Holders to retain any Securities Payment
received by such Holders to the extent such Holders would not be permitted to
retain such Securities Payment by reason of any other provisions of this
Article.
SECTION 1405. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due on or
in respect of Senior Debt, or the provision for such payment in cash or cash
equivalents or any other manner acceptable to the holders of the Senior Debt,
the Holders of the Securities shall be subrogated to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of (and premium,
if any) and interest on the Securities shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of the Senior
Debt of any cash, property or securities to which the Holders of the Securities
or the Trustee would be entitled except for the provisions of this Article, and
no payments over pursuant to the provisions of this Article to the holders of
Senior Debt by Holders of the Securities or the Trustee, shall, as among either
Issuer, its creditors other than holders of Senior Debt and the Holders of the
Securities, be deemed to be a payment or distribution by such Issuer to or on
account of the Senior Debt.
SECTION 1406. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among either Issuer, its creditors other than holders of Senior Debt
and the Holders of the Securities, the
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obligation of each Issuer, which is absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior Debt, is
intended to rank equally with all other general obligations of such Issuer), to
pay to the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against either
Issuer of the Holders of the Securities and creditors of such Issuer other than
the holders of Senior Debt; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Debt to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder or to prohibit
Securities Payments under the circumstances set forth in Section 1203.
SECTION 1407. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any Proceeding, the timely filing of a claim for the
unpaid balance of the indebtedness owing to such Holder in respect of any
Securities, in the form required in such Proceeding, and causing such claim to
be approved or allowed in such Proceeding.
SECTION 1408. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of either Issuer or by any
act or failure to act, in good faith, by any such holder, or by any
noncompliance by such Issuer with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do
any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in
any
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manner for the collection or payment of Senior Debt; and (iv) exercise or
refrain from exercising any rights against such Issuer and any other Person.
SECTION 1409. Notice to Trustee.
Each Issuer shall give prompt written notice to the Trustee of any fact
known to such Issuer which would prohibit the making of any payment to or by
the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from an Issuer
or a holder of Senior Debt or from any trustee or agent therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium,
if any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which may
be received by it within two Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Debt (or a trustee or agent therefor) to
establish that such notice has been given by a holder of Senior Debt (or a
trustee or agent therefor). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 1410. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of either Issuer referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of such Issuer, the amount thereof or payable thereon, the
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amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 1411. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and shall not be liable to any such holders if it shall in good
faith (and absent gross negligence) mistakenly pay over or distribute to
Holders of Securities or to either Issuer or to any other Person cash, property
or securities to which any holders of Senior Debt shall be entitled by virtue
of this Article or otherwise. With respect to the holders of Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article Fourteen and no
implied covenants or obligations with respect to holders of Senior Debt shall
be read into this Indenture against the Trustee.
SECTION 1412. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1413. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Issuers and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1412 shall not apply to the Company, any Subsidiary
Guarantor or any Affiliate of the Issuers or any Subsidiary Guarantor if it,
such Subsidiary Guarantor or such Affiliate acts as Paying Agent.
SECTION 1414. Defeasance of this Article Fourteen.
The subordination of the Securities provided by this Article Fourteen is
expressly made subject to the provisions for defeasance or covenant defeasance
in Article Thirteen hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance that is consummated at a time when a Securities Payment would not be
prohibited by Section 1402 or 1403, the Securities then outstanding shall
thereupon cease to be subordinated pursuant to this Article Fourteen.
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SECTION 1415. Reinstatement.
The provisions of this Article shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of Senior Debt is
rescinded or must otherwise be returned by any holder of Senior Debt upon the
insolvency, bankruptcy or reorganization of either Issuer or otherwise, all as
though such payment had not been made.
ARTICLE FIFTEEN
SUBSIDIARY GUARANTEE
SECTION 1501. Subsidiary Guarantee.
If the Board Resolution or supplemental indenture establishing the terms
of any Security provides that such Security is to be guaranteed by one or more
Subsidiary Guarantors, each of such Subsidiary Guarantors hereby, jointly and
severally, fully and unconditionally guarantees to each Holder of such Security
authenticated and delivered by the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on such Security when and as the
same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, offer to purchase or otherwise, in accordance
with the terms of such Security and of this Indenture. In case of the failure of
the Issuers punctually to make any such payment, each Subsidiary Guarantor
hereby, jointly and severally, agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the
Stated Maturity or by acceleration, call for redemption, offer to purchase or
otherwise, and as if such payment were made by the Issuers.
If the Board Resolution or supplemental indenture establishing the terms
of any Security provides that such Security is to be guaranteed by one or more
Subsidiary Guarantors, each of such Subsidiary Guarantors hereby jointly and
severally agrees that its obligations hereunder shall be absolute,
unconditional, irrespective of, and shall be unaffected by, the validity,
regularity or enforceability of such Security or this Indenture, the absence of
any action to enforce the same or any release, amendment, waiver or indulgence
granted to an Issuer or any guarantor or any consent to departure from any
requirement of any other guarantee of all or any of the Securities or any other
circumstances which might otherwise constitute a legal or equitable discharge
or defense of a surety or guarantor. Each of the Subsidiary Guarantors hereby
waives the benefits of diligence, presentment, demand for payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other lien on any property subject thereto
or exhaust any right or take any action against an Issuer or any other Person
or any collateral, filing of claims with a court in the event of insolvency or
bankruptcy of an Issuer, any right to require a proceeding first against an
Issuer, protest or notice with respect to such Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this
Subsidiary Guarantee will not be discharged in respect of such Security except
by complete performance of the obligations contained in such Security and in
such Subsidiary Guarantee. Each Subsidiary Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or
any of the Holders
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are prevented by applicable law from exercising their respective rights to
accelerate the maturity of such Security, to collect interest on such Security,
or to enforce or exercise any other right or remedy with respect to such
Security, such Subsidiary Guarantor agrees to pay to the Trustee for the
account of the Holders, upon demand therefor, the amount that would otherwise
have been due and payable had such rights and remedies been permitted to be
exercised by the Trustee or any of the Holders.
The indebtedness evidenced by the Subsidiary Guarantees is, to the extent
provided in this Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Debt and the Subsidiary Guarantees are
issued subject to the provisions of this Indenture with respect thereto. Each
Holder of such Security, by accepting the same, will be deemed to have (a)
agreed to and be bound by such provisions, (b) authorized and directed the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and (c) appointed the Trustee his
attorney-in-fact for any and all such purposes.
Each Subsidiary Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Guarantee is endorsed against the
Issuers in respect of any amounts paid by such Subsidiary Guarantor on account
of such Security pursuant to the provisions of its Subsidiary Guarantee or this
Indenture; provided, however, that no Subsidiary Guarantor shall be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of (and premium, if any) and interest on all
Securities issued hereunder shall have been paid in full.
Each Subsidiary Guarantor that makes or is required to make any payment
in respect of its Subsidiary Guarantee shall be entitled to seek contribution
from the other Subsidiary Guarantors which are also obligated under such
Subsidiary Guarantee to the extent permitted by applicable law; provided,
however, that no Subsidiary Guarantor shall be entitled to enforce or receive
any payments arising out of, or based upon, such right of contribution until
the principal of (and premium, if any) and interest on all Securities issued
hereunder shall have been paid in full.
Each Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against an Issuer
for liquidation or reorganization, should an Issuer become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any part of such Issuer's assets, and shall, to the
fullest extent permitted by law, continue to be effective or be reinstated, as
the case may be, if at any time payment and performance of the Securities, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any Holder of the Securities, whether as a "voidable
preference," "fraudulent transfer," or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
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SECTION 1502. Execution and Delivery of Subsidiary Guarantees.
The Subsidiary Guarantees to be endorsed on the Securities, if any, shall
include the terms of the Subsidiary Guarantee set forth in Section 1501 and any
other terms that may be set forth in the form established pursuant to Section
206. If the Board Resolution or supplemental indenture establishing the terms
of any Security provides that such Security is to be guaranteed by one or more
Subsidiary Guarantors, each of such Subsidiary Guarantors hereby agrees to
execute its Subsidiary Guarantee, in a form established pursuant to Section
206, to be endorsed on each Security authenticated and delivered by the Trustee.
The Subsidiary Guarantee shall be executed on behalf of each respective
Subsidiary Guarantor by any one of such Subsidiary Guarantor's Chairman of the
Board, Vice Chairman of the Board, President, Vice Presidents or other person
duly authorized by the Board of Directors of such Subsidiary Guarantor,
attested by its Secretary or Assistant Secretary. The signature of any or all
of these persons on the Subsidiary Guarantee may be manual or facsimile.
A Subsidiary Guarantee bearing the manual or facsimile signature of
individuals who were at any time the proper officers of a Subsidiary Guarantor
shall bind such Subsidiary Guarantor, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of the Security on which such Subsidiary Guarantee is endorsed or did
not hold such offices at the date of such Subsidiary Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee
endorsed thereon on behalf of the Subsidiary Guarantors and shall bind each
Subsidiary Guarantor notwithstanding the fact that Subsidiary Guarantee does
not bear the signature of such Subsidiary Guarantor. If the Board Resolution or
supplemental indenture establishing the terms of any Security provides that
such Security is to be guaranteed by one or more Subsidiary Guarantors, each of
such Subsidiary Guarantors hereby jointly and severally agrees that its
Subsidiary Guarantee set forth in Section 1501 and in the form of Subsidiary
Guarantee established pursuant to Section 206 shall remain in full force and
effect notwithstanding any failure to endorse a Subsidiary Guarantee on any
Security.
SECTION 1503. Release of Subsidiary Guarantors.
Each Subsidiary Guarantee of a Subsidiary Guarantor, if any, will remain
in effect with respect to such Subsidiary Guarantor until the entire principal
of, premium, if any, and interest on the Securities shall have been paid in full
or otherwise discharged in accordance with the provisions of the Securities and
this Indenture; provided, however, that if (i) the Securities are defeased and
discharged pursuant to Section 1302 or (ii) all or substantially all of the
assets of such Subsidiary Guarantor or all of the Capital Stock of such
Subsidiary Guarantor is sold (including by issuance, merger, consolidation or
otherwise) by an issuer or Subsidiary, then, upon delivery by the Issuers of an
Officers' Certificate and an Opinion of Counsel stating that all conditions
precedent herein provided for relating to the release of such Subsidiary
Guarantor from its obligations under its Subsidiary Guarantee and this Article
Fifteen have been complied with, such Subsidiary Guarantor or the Person
acquiring such assets (in the event of a sale or other disposition of all or
substantially all of the assets
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or Capital Stock of such Subsidiary Guarantor) shall be released and discharged
of its obligations under its Subsidiary Guarantee and under this Article
Fifteen without any action on the part of the Trustee or any Holder, and the
Trustee shall execute any documents reasonably required in order to acknowledge
the release of such Subsidiary Guarantor from its obligations under its
Subsidiary Guarantee endorsed on the Securities and under this Article Fifteen.
ARTICLE SIXTEEN
SUBORDINATION OF SUBSIDIARY GUARANTEES
SECTION 1601. Subsidiary Guarantees Subordinate to Senior Debt
If the Board Resolution or supplemental indenture establishing the terms
of any Security provides that such Security is to be guaranteed by one or more
Subsidiary Guarantors, each of such Subsidiary Guarantors covenants and agrees,
and each Holder of a Security, by his acceptance thereof, likewise covenants and
agrees, that, to the extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article Four and Article Fifteen), the
payment of the principal of (and premium, if any) and interest on the Subsidiary
Guarantee of such Subsidiary Guarantor is hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Senior Debt of
such Subsidiary Guarantor.
SECTION 1602. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to a Subsidiary Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of a Subsidiary Guarantor, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshaling of assets and liabilities of a
Subsidiary Guarantor, then and in any such event specified in (a), (b) or (c)
above (each such event, if any, herein sometimes referred to as a "Subsidiary
Guarantor Proceeding") the holders of Senior Debt of such Subsidiary Guarantor
shall be entitled to receive payment in full of all amounts due or to become due
on or in respect of such Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or any other manner acceptable to the
holders of such Senior Debt, before the Holders of the Securities are entitled
to receive any payment or distribution of any kind or character, whether in
cash, property or securities (including any payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of such
Subsidiary Guarantor subordinated to the payment of the Subsidiary Guarantee of
such Subsidiary Guarantor, but excluding any payment or distribution of stock or
securities of such Senior Debt provided for by a plan of reorganization or
readjustment authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy law
or of any other corporation provided for by such plan of reorganization or
readjustment which stock or securities are subordinated in right of payment to
all then outstanding Senior Debt of such Subsidiary
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Guarantor to substantially the same extent as the Subsidiary Guarantees are so
subordinated as provided in this Article), on account of the Subsidiary
Guarantee of such Subsidiary Guarantor (all such payments, distributions,
purchases, redemptions and acquisitions herein referred to, individually and
collectively, as a "Subsidiary Guarantor Payment"), and to that end the holders
of Senior Debt of such Subsidiary Guarantor shall be entitled to receive, for
application to the payment thereof, any Subsidiary Guarantor Payment which may
be payable or deliverable in respect of the Subsidiary Guarantee of such
Subsidiary Guarantor in any such Subsidiary Guarantor Proceeding.
Any Subsidiary Guarantor Payments to which the Trustee or the Holders
would be entitled but for the provisions of this Article shall be paid by the
liquidating trustee or agent or other Person making such Subsidiary Guarantor
Payment, whether a trustee in bankruptcy, a receiver or otherwise, directly to
the holders of Senior Debt of such Subsidiary Guarantor or their representative
or representatives or to any trustee or agent under any indenture or other
agreement evidencing or governing any such Senior Debt, ratably according to
the aggregate amounts remaining unpaid on account of the Senior Debt held or
represented by each of them, to the extent necessary to make payment in full of
all Senior Debt remaining unpaid, after giving effect to any concurrent payment
or distribution to the holders of such Senior Debt. As used in this Article,
the phrase "payment in full" (or any similar phrase), when used to refer to the
payment of Senior Debt, shall mean payment in full of the aggregate amount of
such Senior Debt in cash or cash equivalents or any other manner acceptable to
the holders of such Senior Debt.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Subsidiary Guarantor Payment before all Senior Debt of a Subsidiary Guarantor
are paid in full or payment thereof provided for in cash or cash equivalents or
any other manner acceptable to the holders of such Senior Debt, then and in
such event such Subsidiary Guarantor Payment shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of such Subsidiary Guarantor for application to the payment of all
Senior Debt of such Subsidiary Guarantor remaining unpaid, to the extent
necessary to pay all such Senior Debt in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt.
The consolidation of a Subsidiary Guarantor with, or the merger of a
Subsidiary Guarantor into, another Person or the liquidation or dissolution of
a Subsidiary Guarantor following the conveyance or transfer of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article Eight shall not be deemed a
Subsidiary Guarantor Proceeding for the purposes of this Section if the Person
formed by such consolidation or into which such Subsidiary Guarantor is merged
or the Person which acquires by conveyance or transfer such properties and
assets as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Eight.
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SECTION 1603. No Payment When Senior Debt of the Issuers in Default.
No payment shall be made by a Subsidiary Guarantor under a Subsidiary
Guarantee during any period in which payments by the Issuers on the Securities
are suspended pursuant to the provisions of Section 1403.
In the event that, notwithstanding the foregoing, a Subsidiary Guarantor
shall make any Subsidiary Guarantor Payment to the Trustee or any Holder
prohibited by the foregoing provisions of this Section, then and in such event
such Subsidiary Guarantor Payment shall be paid over and delivered forthwith to
such Subsidiary Guarantor.
The provisions of this Section shall not apply to any Subsidiary
Guarantor Payment with respect to which Section 1602 would be applicable.
SECTION 1604. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Subsidiary Guarantees shall prevent (a) any Subsidiary Guarantor at
any time except during the pendency of any Subsidiary Guarantor Proceeding
referred to in Section 1602 or under the conditions described in Section 1603,
from making Subsidiary Guarantor Payments, or (b) the application by the
Trustee of any money deposited with it hereunder to Subsidiary Guarantor
Payments if, at the time of such application by the Trustee, it did not have
knowledge that such Subsidiary Guarantor Payment would have been prohibited by
the provisions of this Article; provided that clause (b) of the foregoing shall
not be construed to permit the Holders to retain any Subsidiary Guarantor
payment received by such Holders to the extent such Holders would not be
permitted to retain such Subsidiary Guarantor Payment by reason of any other
provisions of this Article.
SECTION 1605. Subrogation to Rights of Holders of Senior Debt of a
Subsidiary Guarantor.
Subject to the payment in full of all amounts due or to become due on or
in respect of Senior Debt of a Subsidiary Guarantor, or the provision for such
payment in cash or cash equivalents or any other manner acceptable to the
holders of Senior Debt of a Subsidiary Guarantor, the Holders of the Securities
shall be subrogated to the rights of the holders of such Senior Debt to receive
payments and distributions of cash, property and securities applicable to such
Senior Debt until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Debt of such Subsidiary Guarantor
of any cash, property or securities to which the Holders of such Securities or
the Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Debt of such Subsidiary Guarantor by Holders of such Securities or the
Trustee, shall, as among any Subsidiary Guarantor, its creditors other than
holders of Senior Debt of such Subsidiary
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Guarantor and the Holders of such Securities, be deemed to be a payment or
distribution by such Subsidiary Guarantor to or on account of the Senior
Debt of such Subsidiary Guarantor.
SECTION 1606. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt of each Subsidiary Guarantor on the other hand.
Nothing contained in this Article or elsewhere in this Indenture, in any
supplemental indenture, in the Securities or in the Subsidiary Guarantees is
intended to or shall (a) impair, as among any Subsidiary Guarantor, its
creditors other than holders of Senior Debt of such Subsidiary Guarantor
and the Holders of the Securities, the obligation of each Subsidiary Guarantor,
which is absolute and unconditional (and which, subject to the rights under
this Article of the holders of Senior Debt of such Subsidiary Guarantor,
is intended to rank equally with all other general obligations of such
Subsidiary Guarantor), to pay to the Holders the payments of all amounts due on
such Securities pursuant to its Subsidiary Guarantee as and when the same shall
become due and payable in accordance with the terms of such Subsidiary
Guarantee; or (b) affect the relative rights against any Subsidiary Guarantor
of the Holders of such Securities and creditors of such Subsidiary Guarantor
other than the holders of Senior Debt of such Subsidiary Guarantor; or
(c) prevent the Trustee or the Holder of any such Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Debt of a Subsidiary Guarantor to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder or to
prohibit Subsidiary Guarantor Payments under the circumstances set forth in
Section 1403.
SECTION 1607. Trustee to Effectuate Subordination.
Each Holder of a Security, by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any Subsidiary Guarantor Proceeding, the timely
filing of a claim for the unpaid balance of the indebtedness owing to such
Holder in respect of such Subsidiary Guarantor's Subsidiary Guarantee, in the
form required in such Subsidiary Guarantor Proceeding, and causing such claim
to be approved or allowed in such Subsidiary Guarantor Proceeding.
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SECTION 1608. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt of any
Subsidiary Guarantor to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of such Subsidiary Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by such Subsidiary Guarantor
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt of any Subsidiary Guarantor may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of the Securities to the
holders of Senior Debt of such Subsidiary Guarantor, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, any Senior Debt of such Subsidiary Guarantor,
or otherwise amend or supplement in any manner any Senior Debt of such
Subsidiary Guarantor or any instrument evidencing the same or any agreement
under which any Senior Debt of such Subsidiary Guarantor is outstanding; (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing any Senior Debt of such Subsidiary Guarantor; (iii)
release any Person liable in any manner for the collection or payment of any
Senior Debt of such Subsidiary Guarantor; and (iv) exercise or refrain from
exercising any rights against such Subsidiary Guarantor and any other Person.
SECTION 1609. Notice to Trustee.
Each Subsidiary Guarantor shall give prompt written notice to the Trustee of
any fact known to such Subsidiary Guarantor which would prohibit the making of
any payment to or by the Trustee in respect of its Subsidiary Guarantee.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of any Subsidiary Guarantee, unless and until the Trustee shall have
received written notice thereof from a Subsidiary Guarantor or a holder of such
Senior Debt of a Subsidiary Guarantor or from any trustee or agent therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 601, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least two Business Days
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of
(and premium, if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such date.
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Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Debt of a Subsidiary Guarantor (or a trustee or agent
therefor) to establish that such notice has been given by a holder of Senior
Debt of such Subsidiary Guarantor (or a trustee or agent therefor). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt of a Subsidiary
Guarantor to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of the Senior Debt of
such Subsidiary Guarantor held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 1610. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of any Subsidiary Guarantor
referred to in this Article, the Trustee, subject to the provisions of Section
601, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
Subsidiary Guarantor Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Debt of a Subsidiary Guarantor and other indebtedness of such
Subsidiary Guarantor, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 1611. Trustee Not Fiduciary for Holders of Senior Debt of the
Subsidiary Guarantors.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
any Senior Debt of any Subsidiary Guarantor and shall not be liable to any such
holders if it shall in good faith (and absent gross negligence) mistakenly pay
over or distribute to Holders or to any Subsidiary Guarantor or to any other
Person cash, property or securities to which any holders of Senior Debt of such
Subsidiary Guarantor shall be entitled by virtue of this Article or otherwise.
With respect to the holders of any Senior Debt of any Subsidiary Guarantor, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article Sixteen and no implied
covenants or obligations with respect to holders of any Senior Debt of any
Subsidiary Guarantor shall be read into this Indenture against the Trustee.
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SECTION 1612. Rights of Trustee as Holder of Senior Debt of the Subsidiary
Guarantors; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt of any Subsidiary
Guarantor which may at any time be held by it, to the same extent as any other
holder of any Senior Debt of such Subsidiary Guarantor, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1613. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Issuers and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1612 shall not apply to the Company, any Subsidiary
Guarantor or any Affiliate of the Issuers or any Subsidiary Guarantor if it,
such Subsidiary Guarantor or such Affiliate acts as Paying Agent.
SECTION 1614. Defeasance of this Article Sixteen.
The subordination of the Subsidiary Guarantees provided by this Article
Sixteen is expressly made subject to the provisions for defeasance or covenant
defeasance in Article Thirteen hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance that is consummated at a time when a Subsidiary Guarantor Payment
would not be prohibited by Section 1602 or 1603, the Subsidiary Guarantees then
outstanding shall thereupon cease to be subordinated pursuant to this Article
Sixteen.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
IRIDIUM OPERATING LLC
By
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Attest:
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......................................
IRIDIUM CAPITAL CORPORATION
By
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Attest:
......................................
[TRUSTEE]
By
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Attest:
......................................
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of _______, ____, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he is ___________________ of _______________________, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of _______, ____, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he is ___________________ of _______________________, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of _______, ____, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he is ___________________ of _______________________, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
