Exhibit 4.1
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THE XXXXXXX GROUP, INC.
and
THE BANK OF NEW YORK,
as Trustee
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INDENTURE
Dated as of February 17, 1998
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$50,000,000
Subordinated Term and Daily Notes
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TABLE OF CONTENTS
Article I - Definitions and Other Provisions of General Application......................................1
Section 101 - Definitions.......................................................................1
Section 102 - Compliance Certificates and Opinions..............................................6
Section 103 - Form of Documents Delivered to Trustee............................................7
Section 104 - Acts of Holders...................................................................8
Section 105 - Notices, Etc. to Trustee and Company..............................................9
Section 106 - Notice to Holders; Waiver.........................................................9
Section 107 - Conflict with Trust Indenture Act................................................10
Section 108 - Effect of Headings and Table of Contents.........................................10
Section 109 - Successors and Assigns...........................................................10
Section 110 - Separability Clause..............................................................10
Section 111 - Benefits of Indenture............................................................10
Section 112 - Governing Law....................................................................10
Section 113 - Legal Holidays...................................................................10
Article II - Security Forms.............................................................................11
Section 201 - Forms Generally..................................................................11
Section 202 - Securities in Global Form........................................................11
Article III - The Securities............................................................................12
Section 301 - Amount Unlimited; Issuanble in Series............................................12
Section 302 - Denoninations....................................................................14
Section 303 - Execution, Authentication, Delivery and Dating...................................14
Section 304 - Temporary Securities.............................................................16
Section 305 - Registration, Registration of Transfer and Exchange..............................16
Section 306 - Mutilated, Destroyed, Lost and Stolen Securities.................................18
Section 307 - Payment of Interest; Interest Rights Preserved...................................19
Section 308 - Persons Deemed Owners............................................................20
Section 309 - Cancellation.....................................................................20
Section 310 - Computation of Interest..........................................................20
Article IV - Satisfaction and Discharge.................................................................21
Section 401 - Satisfaction and Discharge of Securities of Any Series...........................21
Section 402 - Application of Trust Money.......................................................22
Article V - Remedies....................................................................................22
Section 501 - Events of Default................................................................22
Section 502 - Acceleration of Maturity; Rescission and Annulment...............................23
Section 503 - Collection of Indebtedness and Suits for Enforcement by Trustee..................24
Section 504 - Trustee May File Proofs of Claim.................................................25
Section 505 - Trustee May Enforce Claims Without Possession of Securities......................26
Section 506 - Application of Money Collected...................................................26
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Section 507 - Limitation on Suits..............................................................26
Section 508 - Unconditional Right of Holders to Receive Principal (and
Premium, if any) and Interest, if any..........................................27
Section 509 - Restoration of Rights and Remedies...............................................27
Section 510 - Rights and Remedies Cumulative...................................................27
Section 511 - Delay or Omission Not Waiver.....................................................28
Section 512 - Control by Holders...............................................................28
Section 513 - Waiver of Past Defaults..........................................................28
Section 514 - Undertaking for Costs............................................................28
Article VI - The Trustee ...............................................................................29
Section 601 - Certain Duties and Responsibilities..............................................29
Section 602 - Notice of Defaults...............................................................30
Section 603 - Certain Rights of Trustee........................................................31
Section 604 - Not Responsible for Recitals or Issuance of Securities...........................32
Section 605 - May Hold Securities..............................................................32
Section 606 - Money Held in Trust..............................................................32
Section 607 - Compensation and Reimbursement...................................................32
Section 608 - Corporate Trustee Required; Eligibility..........................................33
Section 609 - Resignation and Removal; Appointment of Successor................................33
Section 610 - Acceptance of Appointment by Successor...........................................34
Section 611 - Merger, Conversion, Consolidation or Succession to Business......................35
Section 612 - Appointment of Authenticating Agent .............................................36
Article VII - List of Holders and Reports by Trustee and Company........................................37
Section 701 - Company to Furnish Trustee Names and Addresses of Holders........................37
Section 702 - Preservation of Information; Communications to Holders...........................38
Section 703 - Reports by Trustee...............................................................39
Section 704 - Reports by Company...............................................................39
Article VIII - Consolidation, Merger, Conveyance, Transfer or Lease.....................................40
Section 801 - Company May Consolidate, Etc., Only on Certain Terms.............................40
Section 802 - Successor Corporation Substituted................................................41
Article IX - Supplemental Indentures....................................................................41
Section 901 - Supplemental Indentures Without Consent of Holders...............................41
Section 902 - Supplemental Indentures With Consent of Holders..................................42
Section 903 - Execution of Supplemental Indentures.............................................43
Section 904 - Effect of Supplemental Indentures................................................43
Section 905 - Conformity with Trust Indenture Act..............................................43
Section 906 - References in Securities to Supplemental Indentures..............................43
Article X - Covenants ..................................................................................44
Section 1001 - Payment of Principal and Interest, if any.......................................44
Section 1002 - Maintenance of Office or Agency.................................................44
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Section 1003 - Money for Securities Payments to Be Held In Trust...............................44
Section 1004 - Corporate Existence.............................................................46
Section 1005 - Maintenance of Properties.......................................................46
Section 1006 - Payment of Taxes and Other Claims...............................................46
Section 1007 - Statement as to Compliance......................................................46
Section 1008 - Waiver of Certain Covenants.....................................................47
Article XI - Redemption of Securities...................................................................48
Section 1101 - Applicability of Article........................................................48
Section 1102 - Election to Redeem; Notice to Trustee...........................................48
Section 1103 - Selection by Trustee of Securities to be Redeemed...............................48
Section 1104 - Notice of Redemption............................................................49
Section 1105 - Deposit of Redemption Price.....................................................49
Section 1106 - Securities Payable on Redemption Date...........................................49
Section 1107 - Securities Redeemed in Part.....................................................50
Article XII - Meetings of Holders of Securities.........................................................50
Section 1201 - Purposes for Which Meetings May Be Called.......................................50
Section 1202 - Manner of Calling Meetings......................................................51
Section 1203 - Call of Meetings by Company or Holders..........................................51
Section 1204 - Who May Attend and Vote at Meetings.............................................51
Section 1205 - Regulations May be Made by Trustee..............................................51
Section 1206 - Evidence of Actions by Holders..................................................52
Section 1207 - Exercise of Rights of Trustee and Holders Not to be
Hindered or Delayed...........................................................52
Article XIII - Subordination of Securities..............................................................52
Section 1301 - Securities Subordinate to Senior Indebted.......................................52
Section 1302 - Trustees and Holders of Securities May Rely on Certificate
of Liquidating Agent; Trustee May Require Further
Evidence as to Ownership of Senior Indebtedness; Trustee
Not Fiduciary to Holders of Senior Indebtedness...............................55
Section 1301 - Payment Permitted if No Default.................................................55
Section 1304 - Trustee Not Charged With Knowledge of Prohibition...............................56
Section 1305 - Trustee to Effectuate Subordination.............................................56
Section 1306 - Rights of Trustee as Holder of Senior Indebtedness..............................57
Section 1307 - Article Applicable to Paying Agents.............................................57
Section 1308 - Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness..............................57
Section 1309 - Trustee's Relation to Senior Indebtedness.......................................57
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INDENTURE
INDENTURE, dated as of February 17, 1998, between THE XXXXXXX GROUP,
INC., a corporation duly organized and existing under the laws of the State of
South Carolina (herein called the "Company"), having its main office at 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, THE BANK OF NEW YORK, a
banking corporation organized and existing under the laws of the State of New
York, as trustee (herein called the "Trustee"), having its principal office in
New York, New York.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured,
subordinted notes (herein called the "Securities"), to be issued in one or more
series as in this Indenture provided.
All things necessary to make this Indenture and the Securities, when
executed and issued by the Company, valid and binding obligations of the
Company, in accordance with their 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 covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
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 or time of
such computation; and
4. the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that Article
Six, are defined in that Article.
"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 to act on
behalf of the Trustee to authenticate Securities pursuant to Section 614.
"Bank" means (i) any institution organized under the laws of the United
States, any State of the United States, the District of Columbia, any territory
of the United States, Puerto Rico, Guam, American Samoa, or the Virgin islands
which (a) accepts deposits that the depositor has a legal right to withdraw on
demand and (b) engages in the business of making commercial loans, and (ii) any
trust company organized under any of the foregoing laws.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors or duly authorized committee thereof 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 particular 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 or New York, New York are
authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, 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.
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"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board of Directors, its
President, a Vice President, and by its Treasurer, an Assistant Treasurer,
Controller, an Assistant Controller, Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located in New York,
New York, Attention: Corporate Trust Department.
"Corporation" includes corporations, associations, companies and business
trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a global Security, the Person designated as Depositary
by the Company pursuant to Section 301 until a successor Depositary shall have
become such pursuant to the applicable provisions of the Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to these Securities shall mean any such
Depositary with respect to the Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" has the meaning specified in Section 501.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means (1) the principal of, and premium, if any, and
interest on any debt of the Company for borrowed money whether or not evidenced
by a note, debenture, bond or similar instrument (including indebtedness
represented by a purchase money obligation given in connection with the
acquisition of any property or assets) including securities; (2) any debt of
others described in the preceding clause which the Company has guaranteed or for
which it is otherwise liable; and (3) any amendment, renewal, extension or
refunding of any such debt.
"Indenture" means this instrument as originally executed or 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 and shall
include the terms of particular series of Securities established as contemplated
by Section 301.
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"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller or an Assistant Controller, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
in-house counsel to the Company, and who shall be satisfactory to the Trustee.
"Outstanding", when used with respect to Securities means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation
(ii) Securities for the payment or redemption of which money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided, however, 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; and
(iii) 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 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 bonafide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by or held for the account of the Company or any other obligor upon the
Securities or any Affiliate of the Company 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 or waiver, only Securities which a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned or so held which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
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Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying all Securities, if any, known by the Company to be owned
by or held for the account of the Company or any other obligor upon the
Securities, or any Affiliate of the Company or of such obligor and the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed
therein and not otherwise excluded from the provisions hereof are Outstanding
for the purposes of any such determination.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, 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 interest on the Securities
of that series are payable 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 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,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price" when used with respect to any Security to be redeemed,
in whole or in part, 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 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.
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"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means Indebtedness of the Company outstanding at any
time other than Indebtedness of the Company to a Subsidiary for money borrowed
by the Company from, or advanced to the Company by, any such Subsidiary or
Indebtedness which by its terms is not superior in right of payment to the
Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment 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 installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by the Company or by
one or more of its other Subsidiaries, or by the Company and one or more of its
other Subsidiaries. For purposes of this definition, "Voting Stock means stock
of the class or classes having general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees of
the subject Subsidiary (irrespective of whether or not at the time stock of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency).
"Trustee" means the Person named as "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such with respect to
one or more series of Securities 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 or any series thereof shall
mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president other than an assistant vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed
6
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of 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 condition or covenant
has been complied with; and
(d) 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 the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representation
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 the Company stating that the
information with respect to such factual matters is in the possession of the
Company, 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.
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.
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SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an 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 the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit 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.
(c) The ownership of Securities shall be proved by the Security Register.
(d) 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 the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) Without limiting the generality of the forgoing, unless otherwise
specified pursuant to Section 301 or pursuant to one or more indentures
supplemental hereto, a Holder, including a Depositary that is the Holder of a
global Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a global Security may provide
its proxy or proxies to the beneficial owners of interests in any such global
Security through the standing instructions and customary practices of such
Depositary.
(f) The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action
8
provided in this Indenture to be made, given or taken by Holders. If such a
record date is fixed, the Holders on such record date or their duly appointed
proxy or proxies and only such Persons, shall be entitled to make, give or take
such request, demand, authorization, direction, notice, consent, waiver or other
action, whether or not such Holders remain Holders after such record date. No
such request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 105. Notices, Etc., to Trustee and Company.
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 the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with a Responsible Officer of the Trustee at its Corporate Trust
Office, or
(2) The Company 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 the Company
addressed to the attention of the President of the Company at the address
of its principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee by
the Company.
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, and not earlier than the earliest date, 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 to Holders by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
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SECTION 107. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
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 the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefits or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. Governing Law.
This Indenture shall be governed by and construed in accordance with the
laws of the State of South Carolina and, unless the laws of another jurisdiction
are specified pursuant to Section 301, the Securities shall be governed by and
construed in accordance with the laws of the State of South Carolina.
Notwithstanding the foregoing, the parties hereto acknowledge and agree that the
situs of the trust created hereunder and the administration thereof shall be
deemed to be the Corporate Trust Office.
SECTION 113. 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) payment of principal of (and premium, if any) and interest, 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
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if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series and the certificate of the Authenticating
Agent shall be in substantially the form of Exhibit A, B and C, or in such other
form (including global 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 as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
The definitive Securities, if any, shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner,
subject to the rules of any securities exchange upon which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202. Securities in Global Form.
If any Security of a series is issuable in global form, such Security may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities represented thereby may from time to time be
reduced to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee and in such manner
as shall be specified in such Security. Any instructions by the Company with
respect to a Security in global form, after its initial issuance, shall be in
writing but need not comply with Section 102.
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ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered and Outstanding under this indenture is unlimited. The Securities may
be issued up to the aggregate principal amount of Securities from time to time
authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Maturity of the Securities of such 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 all other series of Securities);
2. any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(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);
3. the date or dates (or manner of determining the same) on which the
principal of the Securities of the series is payable;
4. the rate or rates (or the manner of calculation thereof) at which
the Securities of the series shall bear interest (if any), the date or
dates from which such interest shall accrue; the Interest Payment Dates on
which such interest shall be payable (or manner of determining the same)
and the Regular Record Date for the interest payable on any securities on
an Interest Payment Date;
5. the place or places, if any, in addition to the principal office of
the Company in Lancaster, South Carolina, where the principal of (and
premium, if any) and interest on Securities of the series shall be payable,
any Securities of that series may be surrendered for registration of
transfer, and where any Securities of that series may be surrendered for
exchange;
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6. the period or periods within which, the price or prices at which,
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
7. the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant at the option of a Holder thereof, and
the period or periods within which, the price or prices at which, and the
terms and conditions upon which Securities of the series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
8. if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable:
9. if the amount of payments of principal of (and premium, if any), or
interest on the Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
10. if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
11. whether the Securities of the series shall be issued in whole or
in part in the form of a global Security or Securities and, in such case,
the Depositary for such global Security or Securities;
12. whether the Securities of the series will be subordinate to any
other series of Security or other debt of the Company and the terms of such
subordination;
13. if other than the law of the State of South Carolina, the law
which will govern the terms of the Securities; and
14. any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any particular series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such Indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series may
be paid by mailing a check to the address of the person entitled thereto as such
address shall appear in the Securities Register.
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
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an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officers' Certificate setting forth the terms of the
series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by section
301. In the absence of any such provisions 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.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its 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 the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order and subject to the provisions hereof shall authenticate
and deliver such Securities. If any Security shall be represented by a global
Security, then, for purposes of this section and Section 304, the notation of
the record owner's interest therein upon original issuance of such Security
shall be deemed to be delivery in connection with the original issuance of each
beneficial owner's interest in such global Security if all the securities of any
one series are not to be originally issued at one time and if a Board Resolution
relating to such Securities shall so permit, such Company order may set forth
procedures acceptable to the Trustee for the issuance and authentication of such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 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:
(a) 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;
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(b) 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;
and
(c) that all conditions precedent to the authentication and delivery
of such Securities have been met and that such securities, when
authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject. to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting the enforcement of 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,
liabilities, protections, indemnities or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Each Security shall be dated the date of its authentication.
No Security 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 is entitled to the
benefits of this Indenture.
If the Company shall establish pursuant to Section 301 that the Securities
of a series are to be issued in the form of one or more global Securities, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more global Securities that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the Securities of
such series issued and not yet cancelled, (ii) shall be registered in the name
of the Depositary for such global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 301 for a global Security
must, at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Exchange Act and any other
applicable statute or regulation.
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SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
in the manner specified in Section 303, temporary securities which are printed,
lithographed, typewritten, mimeographed, photocopied or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and 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 Company 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 the
office or agency of the Company 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 Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive securities of the same series of authorized denominations. 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.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the office of the Trustee a register
(the register maintained in such office being herein referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and for
transfers of Securities. The Trustee is hereby initially appointed "Security
Registrar" for the purpose of registering Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company 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 a like aggregate principal
amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any Authorized denominations and of a
like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
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All Securities issued upon registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company or 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 Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
Neither the Company nor the Security Registrar shall be required (i) to
issue, register the transfer of or exchange Securities of any series during a
period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series selected for
redemption under Section 1103 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Notwithstanding any other provision of this Section 305, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by a global Security or Securities. In such event
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the global Security or Securities
representing such series, in exchange for such global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a global Security for such series of Securities in exchange in whole or in part
for Securities of such series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
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(i) to the Person specified by such Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the global Security; and
(ii) to such Depositary a new global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to Clause (i) above.
Upon the exchange of a global Security for securities in definitive
registered form without coupons, in authorized denominations, such global
Security shall be canceled by the Trustee. securities in definitive registered
form without coupons issued in exchange for a global Security pursuant to this
Section 305 shall be registered in such names and in such authorized
denominations as the Depositary for such global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then the Company shall execute and, upon its request, 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 Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of written notice to
the Company or the Trustee that such Security has been acquired by a bonafide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new security pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
18
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 Company, 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.
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 payment.
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 Company as provided below:
The Company 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 Company 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 Company 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 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 Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date thereof to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, 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
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registered at the close of business on such Special Record Date and shall
no longer be payable.
Subject to the foregoing provisions of this Section and Section 305, 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
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to any payments made on account of beneficial ownership
interests of a global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities 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 a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise contemplated by Section 301 for securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 365-day year and the actual number of days elapsed.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Securities of Any Series.
(a) The Company shall be deemed to have satisfied and discharged the entire
indebtedness an all the Securities of any particular series and, so long as no
Event of Default shall be continuing, the Trustee for the Securities of such
series, upon Company Request and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities of such series for the
payment of which money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all Outstanding Securities of such series not described in
Subclause (A) of this Subsection (a) (1) and 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
Company; and the Company, in the case of (i), (ii), or (iii) above,
has deposited or caused to be deposited with the Trustee as trust
funds in trust an amount sufficient to pay and discharge the entire
indebtedness on such Outstanding Securities not theretofore delivered
to the Trustee for cancellation;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series, including, without limitation, the fees and estimated expenses of
the Trustee through and including the latest date of payment of such
Securities to the Holders thereof; and
(3) the Company has 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 the
entire indebtedness of all Securities of such series have been complied
with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company 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.
SECT10N 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
the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest
for the payment of which such money has been deposited with the Trustee.
ARTICLE V
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 voluntary or involuntary or be effected
by operation of law 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 premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or the breach of which 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
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder, or
22
(4) the entry by a court having jurisdiction 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 a 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, 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
(5) 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 against the Company of any bankruptcy or insolvency case or
proceeding, or the filing by the Company 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 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 other Event of Default provided in the Security or the Board
Resolution with respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default 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 to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount shall become immediately due and payable without presentment,
demand, protest or notice of any kind, all of which are expressly waived.
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
23
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue interest on all Securities of that series,
(b) the principal of any Securities of that series which has
become due otherwise than by such declaration of acceleration and
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
curved 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 Company covenants that if:
(1) default is made in the payment of any interest on any Security of
any series 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 any Security at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and, to
the extent that payment of such interest shall be legally enforceable, upon any
overdue installments of 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.
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If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such securities, wherever
situated.
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 the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal and
interest, if any, owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(2) 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.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of the Holder in any such proceeding.
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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 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 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;
SECOND: To the payment of the amounts then due and unpaid for
principal of 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 interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
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) an Event of Default with respect to that series shall have
occurred and be continuing and such Holder shall have previously given
written notice to the Trustee of such default and the continuance thereof;
(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;
26
(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 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 (and Premium,
if any) and Interest, if any.
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 premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or 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 right 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 Company, 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.
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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.
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, however, 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 interest, if any, 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.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee
28
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest, if any, on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default, with respect to
Securities of any series:
(1) the Trustee undertakes to perform, with respect to Securities of
such series, only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth of
the statements and correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to Securities of any series
has occurred and is continuing, the Trustee shall exercise, with respect to
Securities of such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible officer, unless it shall be proved that the
Trustee was grossly negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series, determined as provided in Section 512, relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Securities of such
series; and
(4) 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.
(d) 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.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, in the manner set forth in Section 106,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of or interest on any Security of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided further, however, that in the case of any default
of the character specified in Section 501(4) with respect to the Securities of
such series, no such notice to Holders shall be given until at least 60 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.
The Trustee shall not be deemed to have knowledge of any Default or Event
of Default except any Default or Event of Default of which the Trustee shall
have received written notification or a Responsible Officer charged with the
administration of this Indenture shall have obtained actual knowledge, and such
notification shall not be deemed to include receipt of information obtained in
any report or other documents furnished under Section 704 of this Indenture,
which reports and documents the Trustee shall have no duty to examine.
30
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601, and notwithstanding anything else
contained herein or in any Securities:
(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 Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(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 an its part, rely upon an Officers' Certificate;
(4) as a condition to the taking, suffering or omission of any act
contemplated hereunder, the Trustee may, but is not required to, consult
with counsel and the written advice at 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
Company, 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.
31
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication thereof, shall be taken as the statements of the
Company, and the Trustee or any Authenticating Agent assumes no responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company 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 Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of securities and, subject
to Section 608 and 613, may otherwise deal with the Company with the same rights
it would have it if 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 Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees;
(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 any 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 gross negligence or
bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without gross 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.
32
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a first lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except for
funds specifically held in trust for the benefit of the Holders of Securities.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder for the Securities of each
series which shall 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 exercise corporate trust powers, having a combined
capital and surplus of at least $150,000, and subject to supervision or
examination by Federal or State Authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
(b) The Trustee may resign at any time with respect to the securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 610 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.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Oustanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
1. the Trustee shall cease to be eligible under Section 608 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
2. 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,
33
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf on himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee 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 610. 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 Oustanding 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 610, 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 610, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company 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 in the manner
and to the extent 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 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee 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 Company 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
34
and money held by such retiring Trustee hereunder, subject nevertheless to its
lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series 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, 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 Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee, to the extent contemplated by such supplemental indenture, all property
and money held by such retiring Trustee hereunder with respect to the Securities
of that or those series who which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company 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
paragraph (a) or (b) of this Section, as the case may be.
(d) 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 611. 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
35
any Securities shall have been authenticated, but not delivered, by the Trustee
or the Authenticating Agent, as the case may be, then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee or
Authenticating Agent, as the case may be, may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee or successor Authenticating Agent, as the case may be, had
itself authenticated such Securities.
SECTION 612. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, 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 or upon
exchange, registration of transfer or partial redemption thereof and Securities
so authenticated 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 exercise corporate trust powers and to act as Authenticating
Agent, having a combined capital and surplus of not less than $150,000 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 be the successor of
such Authenticating Agent hereunder, 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 parties hereto or the Authenticating
Agent or such successor operation.
An Authenticating Agent for any series of Securities may resign at any time
by giving written notice thereof to the Trustee for such series and to the
Company. The Trustee for any series of Securities may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company in the manner set forth in Section 105.
Upon receiving such notice of resignation or upon such termination, or in case
at
36
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee for such series of Securities may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve in the manner set forth in Section 106. 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 for the Securities of each series agrees to pay to the
Authenticating Agent for such series 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 Section 607.
The provisions of Sections 308, 604 and 605 shall be applicable to each
Authenticating Agent.
Pursuant to each appointment made under this Section, the Securities of
each series covered by such appointment 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 Agent
ARTICLE SEVEN
LISTS OF HOLDERS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date in each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, and
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(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and conent as of a date 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.
(a) 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.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five business days after the receipt of such
application, at its election, either:
(i) afford such applicants access to the information preserved at the
time by Trustee in accordance with Section 702 (a), or
(ii) inform such applicant as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by Trustee in accordance with Section 702(a), a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
38
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise, the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702 (b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year
following the first issuance of Securities, the Trustee shall transmit by mail
to all Holders as provided in Section 313(c) of the Trust Indenture Act a brief
report dated as of such May 15, if required by Section 313(a) of the Trust
Indenture Act.
SECTION 704. Reports by Company.
The Company shall;.
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, in the manner set forth in
Section 106, within 30 days after the filing thereof with the Trustee, such
summaries of any
39
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation,
or sell, convey, exchange, transfer or lease its properties and assets
substantially as an entirety to any Person other than a Subsidiary, and the
Company shall not permit any Person other than a Subsidiary, to consolidate with
or merge into the Company or sell, convey, exchange, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
corporation, or sell, convey, exchange, transfer or lease its properties
and assets substantially as an entirety to any Person other than a
Subsidiary, the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and 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 interest on all the Securities
and the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to 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 sale,
conveyance, exchange, transfer or lease, properties or assets of the
Company or any Subsidiary would become subject to a mortgage, pledge, lien,
security interest or other encumbrance which would not be permitted by this
Indenture, the Company or any such Subsidiary or such successor corporation
or 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
(4) the Company or any such Subsidiary has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, conveyance, exchange, transfer or lease and
supplemental indenture comply
40
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other corporation or any sale, conveyance, exchange, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor corporation formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, exchange, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor corporation shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company 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
Company; or
(3) to add any additional Events of Default; 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
(5) to change or eliminate any of the provisions of this Indenture,
provided, however, that any such change or elimination shall become
effective only when there is
41
no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such
provision; 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 610(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided, however, that such action shall not
adversely affect the interests of the Holders of Securities of any series
in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 50% in principal amount of
the Oustanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby;
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or change any Place of Payment where, or the coin
or currency in which, any Security or any principal of or the 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
(2) reduce the percentage in principal amount of the Oustanding
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
42
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, 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 1010 or the
deletion of this proviso, in accordance with the requirements of section
610(b) and 901(8).
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, protections, indemnities, liabilities 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.
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 as then in affect.
SECTION 906. References 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
43
indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Oustanding Securities
of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest, if any.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and the
interest, if any, 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 Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, an office or agency where Securities of that series
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies 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 Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. Money for Securities Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or interest, if any, 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 or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
44
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of or interest on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal or interest becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will.
(1) hold all sums held by it for the payment of the principal of or
interest on Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal or interest on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent 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
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest, if any, has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided. however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York and in each Place
of Payment for Securities of that series, notice that such money remains
unclaimed and that, after a date
45
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 Company, unless otherwise required by mandatory provision of applicable
escheat, or abandoned or unclaimed property law.
SECTION 1004. Corporate Existence.
Subject to Article Eight and to Section 1007, the Company will do or cause
to be done all things necessary to preserve and keep in full force and effect
its corporate existence, rights (charter and statutory) and franchises as well
as the corporate existence, rights (charter and statutory) and franchises of
each Subsidiary; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries considered as a whole and that the loss thereof
is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary 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 such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1007. Statements as to Compliance.
(a) The Company will deliver to the Trustee, within 90 days after the end
of each fiscal year, a written statement, which need not comply with Section
102, signed by the Chairman of the Board of Directors, the President, Vice
Chairman or a Vice President and by the
46
Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of
the Company, stating, as to each signer thereof, that:
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof, and (b) no event has occurred and is continuing which is,
or after notice or lapse of time or both would become, an Event of Default,
or, if such an event has occurred and is continuing, specifying each such
event known to him and the nature and status thereof.
(b) Accountants' Certificate. The Company shall deliver to the Trustee,
within 90 days after the end of the Company's fiscal year, a certificate signed
by the Company's independent certified public accountants stating (i) that their
audit examination has included a review of the terms of this Indenture and the
Securities as they relate to accounting matters, (ii) that they have read the
most recent Officers' Certificates delivered to the Trustee pursuant to
paragraph (a) of this Section and (iii) whether, in connection with their audit
examination, anything came to their attention that caused them to believe that
the Company was not in compliance with any of the terms, covenants, provisions
or conditions of this Indenture as they pertain to accounting matters and, if
any Default or Event of Default has come to their attention, specifying the
nature and period of existence thereof; provided that such independent certified
public accountants shall not be liable in respect of such statement by reason of
any failure to obtain knowledge of any such Default or Event of Default that
would not be disclosed in the course of an audit examination conducted in
accordance with generally accepted auditing standards in effect at the date of
such examination.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in sections 1004 to 1006, inclusive, with
respect to the Securities of any series, if, before the time for such
compliance, the Holders of at least 50% in principal amount of the Oustanding
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 Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
47
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 Securities of any series) in
accordance with this Article, subject to any requisite regulatory approvals of
any nature whatsoever.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 45 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 and
of the principal amount of Securities of such series to be redeemed. In the case
of any redemption of securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company 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, the
particular Securities to be redeemed shall be selected not more then 45 days
prior to the Redemption Date by the Trustee, from the Oustanding Securities of
such series not previously called for redemption, by lot or such other method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any 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.
48
SECTION 1104. Notice Of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed no 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,
(3) if less than all the Oustanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, or portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date, and
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit Of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 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
Company 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 Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided however, that installments of interest the
Stated Maturity of which is on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or
49
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
therefor for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
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 Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute, 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, 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, except that if a global Security is so surrendered, the Company
shall execute, and the Trustee shall authenticate and deliver to the Depositary
for such global Security, without service charge, a new global Security or
Securities in a denomination equal to and in exchange for the unredeemed portion
of the principal of the global Security so surrendered.
ARTICLE TWELVE
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1201. Purposes for Which Meetings May be Called.
A meeting of Holders may be called at any time and from time to time
pursuant to the provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any direction to the Trustee, or to waive or consent to the waiving of any
Event of Default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of the provisions
of Article Five;
(2) to remove the Trustee or appoint a successor Trustee, pursuant to
the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Sections 901 and 902; or
50
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the securities
under any other provision of this Indenture or under applicable law.
SECTION 1202. Manner of Calling Meetings.
The Trustee may at any time call a meeting of Holders to take any action
specified in Section 1201. Notice of every meeting of the Holders, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be mailed by the Trustee to the Company and
to the Holders not less than 20 nor more than 60 days prior to the date fixed
for the meeting. Any meeting shall be valid without notice if the Holders of all
the Oustanding Securities are present in person or by proxy, or if notice is
waived before of after the meeting by the Holders of all of the Oustanding
Securities, and if the Company and the Trustee are either present or have,
before or after the meeting, waived notice.
SECTION 1203. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the Holders of not less than 25% in aggregate principal amount of
the Oustanding Securities, shall have requested the Trustee to call a meeting of
Holders to take any action authorized in Section 1201 by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders in the amount above
specified may determine the time and the place in Lancaster, South Carolina for
such meeting and may call such meeting to take any action authorized in Section
1201, by mailing notice thereof as provided in Section 1202.
SECTION 1204. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Holders a Person shall (a) be a
Holder of one or more Securities with respect to which the meeting is being
held, or (b) be a Person appointed by an instrument in writing as proxy by such
Holder of one or more Securities. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 1205. Regulations May be Made by Trustee.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Securities and of the appointment
of proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate.
51
At any meeting each Holder or proxy shall be entitled to one vote for each
$1,000 principal amount of Oustanding Securities held or represented by him.
SECTION 1206. Evidence Of Actions by Holders.
Whenever the Holders of a specified percentage in aggregate principal
amount of the Securities may take any action, the fact that the Holders of such
percentage have acted may be evidenced by (a) instruments of similar tenor
executed by Holders in Person or by attorney or written proxy, or (b) the
Holders voting in favor thereof at any meeting of Holders called and held in
accordance with the provisions of the rules for meetings of Holders, or (c) by a
combination thereof. The Trustee may require proof of any matter concerning the
execution of any instrument by a Holder or his attorney or proxy as it shall
deem necessary.
SECTION 1207. Exercise of Rights of Trustee and Holders Not to be Hindered or
Delayed.
Nothing in this Article contained shall be deemed or construed to authorize
or permit, by reason of any call of a meeting of Holders or any rights expressly
or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee or
to the Holders under any of the provisions of this Indenture or of the
Securities.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees that anything in this Indenture or the
Securities of any series to the contrary notwithstanding, the indebtedness
evidenced by the Securities of each series is subordinate and junior in right of
payment to all Senior Indebtedness to the extent provided herein, and each
Holder of Securities of each series, by his acceptance thereof, likewise
covenants and agrees to the subordination herein provided and shall be bound by
the provisions hereof. Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of these subordination provisions
irrespective of any amendment, modification or waiver of any term of the Senior
Indebtedness or extension or renewal of the Senior Indebtedness.
In the event that the Company shall default in the payment of any principal
of (or premium, if any) or interest on any Senior Indebtedness when the same
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise, then, upon written notice of
such default to the Company by the holders of Senior Indebtedness or any trustee
therefor, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of or
52
interest on any of the Securities, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Securities.
In the event of:
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other winding
up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any of the Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Securities of any series shall be paid or delivered directly to
the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
have been paid in full. In the event of any such proceeding, after payment in
full of all sums owing with respect to Senior Indebtedness, the Holders of the
Securities, together with the holders of any obligations of the Company ranking
on a parity with the Securities, shall be entitled to be paid from the remaining
assets of the Company the amounts at the time due and owing on account of unpaid
principal of (and premium, if any) and interest on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Company ranking junior to the Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character, whether in cash, securities or other property
(other than securities of the Company or any other corporation provided for by a
plan of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any
53
such plan of reorganization or readjustment), or any security shall be received
by the Trustee or any Holder in contravention of any of the terms hereof, such
payment or distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness at the time outstanding in accordance with the priorities
then existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
No present or future holder of any Senior Indebtedness shall be prejudiced
in the right to enforce subordination of the indebtedness evidenced by the
Securities by any act or failure to act on the part of the Company. Nothing
contained herein shall impair, as between the Company and the Holders of
Securities of each series, the obligation of the Company to pay to such Holders
the principal of (and premium, if any) and interest on such Securities or
prevent the Trustee or the Holder from exercising all rights, powers and
remedies otherwise permitted by applicable law or hereunder upon an Event of
Default hereunder, all subject to the rights of the holders of the Senior
Indebtedness to receive cash, securities or other property otherwise payable or
deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been paid in full unless
the holders thereof shall have received cash, securities or other property equal
to the amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the Holders of Securities of each series shall
be subrogated to all rights of any holders of Senior Indebtedness to receive any
further payments or distributions applicable to the Senior Indebtedness until
the indebtedness evidenced by the Securities of such series shall have been paid
in full, and such payments or distributions received by such Holders, by reason
of such subrogation, of cash, securities or other property which otherwise would
be paid or distributed to the holders of Senior indebtedness, shall, as between
the Company and its creditors other than the holders of Senior Indebtedness, on
the one hand, and such Holders, on the other hand, be deemed to be a payment by
the Company on account of Senior Indebtedness, and not on account of the
Securities of such series.
The provisions of this Section 1301 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any
security interest the creation of which is not prohibited by the provisions of
this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
54
SECTION 1302. Trustees and Holders of Securities May Rely on Certificate of
Liquidating Agent; Trustee May Require Further Evidence as to
Ownership of Senior Indebtedness; Trustee Not Fiduciary to
Holders of Senior Indebtedness.
Upon any payment or distribution of assets of the Company referred to in
this Article Thirteen, the Trustee and the Holders shall be entitled to rely
upon an order or decree made by any court of competent jurisdiction in which
such dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors 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
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Thirteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) as evidence that such Person is a
holder of such Senior Indebtedness (or is such a trustee or representative). 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
Indebtedness to participate in any payments or distributions pursuant to this
Article Thirteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, as to the extent to which such Person is entitled to
participate in such payment of distribution, and as to other facts pertinent to
the rights of such Person under this Article Thirteen, 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. The
Trustee, however, shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness.
SECTION 1303. Payment Permitted if No Default.
Nothing contained in this Article Thirteen or elsewhere in this Indenture,
or in any of the Securities, shall prevent (a) the Company at any time, except
during the pendency of any dissolution, winding up, liquidation or
reorganization proceedings referred to in, or under the conditions described in,
Section 1301, from making payments of the principal of (or premium, if any) or
interest on the Securities, or (b) the application by the Trustee or any Paying
Agent of any moneys deposited with it hereunder to payments of the principal of
(or premium, if any) or interest on the Securities, if, at the time of such
deposit, the Trustee or such Paying Agent, as the case may be, did not have the
written notice provided for in Section 1304 of any event prohibiting the making
of such deposit or if, at the time of such deposit (whether or not in trust) by
the Company with the Trustee or Paying Agent (other than the Company), such
payment would not have been prohibited by the provisions of this Article, and
neither the Trustee nor any Paying Agent shall not be affected by any notice to
the contrary received by it on or after such date.
55
SECTION 1304. Trustee Not Charged With Knowledge of Prohibition.
(a) Anything in this Article Thirteen or elsewhere in this Indenture
contained to the contrary notwithstanding, the Trustee shall not at any time be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment of money to or by the Trustee and shall be entitled
conclusively to assume that no such facts exist and that no event specified in
Section 1301 has happened, until the Trustee shall have received an Officers'
Certificate to that effect or notice in writing to that effect signed by or on
behalf of the holder or holders, or their representatives, of Senior
Indebtedness or from any trustee under any indenture pursuant to which such
Senior Indebtedness shall be outstanding; provided, however, that, if prior to
the third Business Day preceding the date upon which by the terms hereof any
money becomes payable for any purpose (including, without limitation, the
payment of either the principal of or interest on any Security), or in the event
of the execution of an instrument pursuant to Section 401 acknowledging
satisfaction and discharge of this Indenture, then if prior to the third
Business Day preceding the date of such execution, the Trustee or Paying Agent
shall not have received with respect to such money the Officers' Certificate or
notice provided for in this Section 1304, then anything herein contained to the
contrary notwithstanding, the Trustee or such Paying Agent shall have full power
and authority to receive such money and apply it to the purpose for which it was
received and shall not be affected by the notice to the contrary which may be
received by it on or after such date. The Company shall give prompt written
notice to the Trustee and to the Paying Agent of any facts which would prohibit
the payment of money to or by the Trustee and Paying Agent.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee and the Company by a Person representing himself
to be a Senior Representative or a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
Senior Representative or a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor); provided, however, that failure to give such
notice to the Company shall not affect in any way the ability of the Trustee to
rely on such notice. 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 Indebtedness 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 Indebtedness
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 1305. Trustee to Effectuate Subordination.
Each Holder of Securities 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 as between such Holder and holders of Senior
Indebtedness as provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
56
SECTION 1306. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this Article
with respect to any Senior Indebtedness which may at the time be held by it, to
the same extent as any other holder of Senior Indebtedness; provided, however,
that nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder; and provided, further, that nothing in this Article shall apply to
claims of, or payment to, the Trustee under or pursuant to Section 607.
SECTION 1307. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 1304 and 1306 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent.
SECTION 1308. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness 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 the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants in this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness may, at any time
or from time to time and in their absolute discretion, change the manner, place
or terms of payment, change or extend the time of payment of, or renew or alter,
any such Senior Indebtedness, or amend or supplement any instrument pursuant to
which any such Senior Indebtedness is issued or by which it may be secured, or
release any security therefor, or exercise or refrain from exercising any other
of their rights under the Senior Indebtedness, including, without limitation,
the waiver of default thereunder, all without notice to or assent from the
Holders of the Securities or the Trustee and without affecting the obligations
of the Company, the Trustee or the Holders of the Securities under this Article.
SECTION 1309. Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be read into this
Article against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness. The Trustee shall not be
liable to any holder of Senior Indebtedness if it shall mistakenly pay over or
deliver to Holders, the Company
57
or any other Person moneys or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article or otherwise.
58
TESTIMONIUM
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.
THE XXXXXXX GROUP, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Title: Executive Vice President
-------------------------
[Seal]
Attest:
Xxxxx X. Xxxx, Secretary
------------------------
THE BANK OF NEW YORK
as Trustee
By: /s/ illegible signature
---------------------------------
Title:
----------------------
[Seal]
Attest:
/s/ Xxxxxxx X. Xxxx
-----------------------
59
Exhibit A
[Front Side of Daily Note]
Subordinated Daily Note
Series D
The Xxxxxxx Group, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Date of Issue ____________, 19_____ No._________________________
FOR VALUE RECEIVED, The Xxxxxxx Group, Inc. (the "Issuer") hereby promises
to pay on demand the principal amount of ___________________________ Dollars
($_________), together with accrued interest as provided herein, to
Name _________________________
_________________________ Social Security or Stated Maturity
Employer I.D. No. ("Maturity")
Address _________________________ _______________ ______________
_________________________
(the "Holder"), or registered assigns, in the manner provided for on the reverse
side hereof.
This Subordinated Daily Note (the "Daily Note") shall bear interest on the
unpaid principal amount at the initial rate of _______________________________%.
This rate may fluctuate as described on the reverse side hereof. Interest shall
accrue daily and be compounded quarterly.
Issuance Under Indenture. This Daily Note is one of a series of a duly
authorized issue of securities of the Issuer (each a "Security") and, together,
the "Securities") issued and to be issued in one or more series under an
Indenture, dated as of __________, 1998 (herein called the "Indenture") between
the Issuer and The Bank of New York, New York, as Trustee (herein called the
"Trustee" which term includes any successor Trustee under the Indenture) to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations, duties and immunities
thereunder of the Issuer, the Trustee and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered.
Reference is made to the further provisions of this Daily Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the
Trustee referred to herein, either directly or through an Authenticating Agent,
by the manual or facsimile signature of an authorized signer, this Daily Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Security is not a deposit, savings account or an obligation of an
insured depository institution and is not insured by the Federal Deposit
Insurance Corporation (FDIC) or any other governmental agency.
[Front Side of Daily Note]
ATTEST: THE XXXXXXX GROUP, INC.
By:____________________________ By:_________________________________
Xxxxxxx X. Xxxxx, Secretary Xxxxx X. Xxxxxxx
Chairman of the Board, President
[SEAL] and Chief Executive Officer
Authentication Certificate:
This Daily Note is one of the series of Securities referred to in the
within-mentioned Indenture.
The Bank of New York, as Trustee
_________________________________
Authorized Agent
2
[Reverse Side of Subordinated Daily Note]
Payment and Interest Accrual. Payment of the principal of and interest on
this Security shall be made on a Business Day in lawful money of the United
States at any office of The Xxxxxxx Group, Inc., or at such other place as the
Issuer may designate to the Holder in writing (a "Place of Payment"); provided,
however, that any such payment may be made, at the option of the Issuer, by
check mailed to the registered address of the Holder. Upon payment or tender of
payment of the principal amount and accrued interest thereon, ON DEMAND, this
Security shall be surrendered to the Issuer for cancellation at the Place of
Payment. Unless otherwise agreed in writing by the Issuer, interest hereon shall
cease to accrue, and the Issuer shall have no further liability with respect
thereto, upon payment (or tender of payment in the aforesaid manner) of the
principal amount hereof, and accrued interest thereon, ON DEMAND.
Interest Rate Adjustment. The interest rate will be determined by the
Issuer and may fluctuate on a monthly basis. Any adjustment to the interest rate
will be made on the first day of the month and shall remain in effect until next
adjusted by the Issuer. The interest rate will be no less than 3% below nor more
than 5% above the rate established for the most recent auction average of United
States Treasury Bills with maturities of 13 weeks. In no event will the rate of
interest payable be more than 12% per annum or less than 2% per annum. The
Issuer shall notify the Holder promptly by first class mail of any adjustment in
the interest rate.
Optional Redemption by Issuer. This Daily Note is subject to redemption
upon not less than 30 days' notice by first class mail, at any time, as a whole
or in part, at the election of the Issuer, without premium, together with
accrued interest to the Redemption Date. Each partial redemption payment shall
be made as provided in the Indenture on the Outstanding Securities of this
series of the Securities called for redemption.
Redemption by Holder. The Holder shall have the right at his option to
redeem this Daily Note, in whole or in part, on any Business Day. Holders shall
also have the right to make partial redemptions; provided, however, that upon a
partial redemption, a minimum outstanding principal amount of $50 must be
maintained. The Issuer retains the absolute right to require the Holder at any
time (including the time at which the Holder may otherwise request a full or
partial redemption of this Daily Note), to give the Issuer no less than 30 days'
prior written notice by first class mail of a redemption demanded by the Holder
and which notice shall specify the principal amount of the Daily Note to be
redeemed and the redemption date which shall be a Business Day.
Recordations of Additions or Partial Redemptions. Upon presentation of this
Daily Note at a Place of Payment, the Issuer, or the Issuer's agent, will, for
the Holder's convenience, record on the register that is a part hereof any
adjustments to the original principal amount of this Daily Note, such as
additional purchases or partial redemptions.
Assignment. As provided in the Indenture and subject to certain limitations
therein set forth, this Daily Note shall not be transferable to any person
except by endorsement and delivery by the Holder, or his duly authorized
representative at the Place of Payment referred to above, and upon surrender to
the Issuer with proper endorsement, a new instrument of like tenor shall be
issued in the name of the transferee. No service charge shall be made for any
such registration of transfer or exchange, but the Issuer may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. Unless and until transferred in the manner aforesaid, the
Issuer, the Trustee and any agent of either of them may treat the Holder whose
name or names appear on the face of this instrument as the absolute owner hereof
for all purposes and neither the Issuer, the Trustee nor any Paying Agent shall
be affected by notice to the contrary. If this Security is payable to two or
more persons, they shall be deemed to be joint tenants with right of
survivorship and any and all payments herein shall be made to either, or the
survivor of them.
SUBORDINATION. THE INDEBTEDNESS EVIDENCED BY THIS DAILY NOTE IS, TO THE
EXTENT AND IN THE MANNER PROVIDED IN THE INDENTURE, SUBORDINATE AND SUBJECT IN
RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN FULL OF ALL SENIOR INDEBTEDNESS (AS
DEFINED IN THE INDENTURE) OF THE ISSUER, WHETHER OUTSTANDING AT THE DATE OF THE
INDENTURE OR THEREAFTER INCURRED. EACH HOLDER OF THIS DAILY NOTE, BY HIS
3
[Reverse Side of Subordinated Daily Note]
ACCEPTANCE HEREOF, AGREES TO AND SHALL BE BOUND BY ALL THE PROVISIONS OF THE
INDENTURE RELATING TO SUCH SUBORDINATION.
Event of Default. If an Event of Default, as defined in the Indenture,
shall occur and be continuing, the principal of all the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
Issuable in Registered Form Only. This Daily Note is one of a series of
Securities issuable only in registered form without coupons.
Defined Terms. All capitalized terms in this Daily Note which are defined
in the Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
Initial Purchase/Register Balance
This Daily Note Register is provided for the convenience of the Holder.
Entries may be made only by an authorized agent of the Issuer to reflect
additional purchases or redemptions. The Issuer will not be liable for any
transaction unless an entry is made hereon by an authorized agent of the Issuer.
The Holder will receive statements on a quarterly basis which will include all
transactions for the period.
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Transaction Date Received/Paid
By Redemptions Purchases
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4
Exhibit B
[Front Side of One Month Term Note]
One Month
Subordinated Term Note
Series M
The Xxxxxxx Group, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Date of Issue ______________________, 19__ No. __________________
FOR VALUE RECEIVED, The Xxxxxxx Group, Inc. (the "Issuer") hereby promises
to pay the principal amount of _________________________ Dollars ($
_______________) one calendar month after the date of issue to
Name ______________________
______________________
Social Security or Stated Maturity
Employer I.D. No. ("Maturity")
Address ______________________ _________________ _________________
______________________
(the "Holder"), or registered assigns, in the manner provided for on the reverse
side hereof. This Subordinated One Month Note (the "Term Note") shall bear
interest on the unpaid principal amount from the date of issue until paid at the
rate of _____________ percent (____%) per annum, such interest to be paid at
Maturity.
Issuance and Indenture. This Term Note is one of a series of a duly
authorized issue of securities of the Issuer (each a "Security") and, together,
the "Securities") issued and to be issued in one or more series under an
Indenture, dated as of __________, 1998 (herein called the "Indenture") between
the Issuer and The Bank of New York, New York, New York, as Trustee (herein
called the "Trustee" which term includes any successor Trustee under the
Indenture) to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations, duties and
immunities thereunder of the Issuer, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
Reference is made to the further provisions of this Term Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the
Trustee, either directly or through an Authenticating Agent, by the manual or
facsimile signature of an authorized signer, this Term Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
This Security is not a deposit, savings account or an obligation of an insured
depository institution and is not insured by The Federal Deposit Insurance
Corporation (FDIC) or any other governmental agency.
[Front Side of One Month Term Note]
ATTEST: THE XXXXXXX GROUP, INC.
By: ________________________________ By: __________________________________
Xxxxxxx X. Xxxxx, Secretary Xxxxx X. Xxxxxxx
Chairman of the Board, President
[SEAL] and Chief Executive Officer
Authentication Certificate:
This Term Note is one of the series of Securities referred to in the
within-mentioned Indenture.
The Bank of New York, as Trustee
__________________________________
Authorized Agent
2
[Reverse Side of Subordinated One Month Term Note]
Payment And Interest Accrual. Payment of the principal of and interest on
this Term Note shall be made in lawful money of the United States at any offices
of The Xxxxxxx Group, Inc., or at such other place as the Issuer may designate
to the Holder in writing ("Place of Payment"); provided, however, that any such
payment may be made, at the option of the Issuer, by check mailed to the
registered address of the Holder. Upon payment or tender of payment hereof at
Maturity or earlier redemption (in whole), this Term Note shall be surrendered
to the Issuer for cancellation at the Place of Payment. Unless otherwise agreed
in writing by the Issuer, interest hereon shall cease to accrue, and the Issuer
shall have no further liability with respect thereto, upon payment (or tender of
payment in the aforesaid manner) of the outstanding principal amount hereof plus
all accrued but unpaid interest at Maturity or earlier redemption.
Possible Automatic Extensions. No later than 15 days prior to Maturity, the
Company will give the Holder of this Term Note notice by first-class mail of the
Maturity and provide the Holder with a copy of the Company's most recent
quarterly report on Form 10-Q filed with the United States Securities and
Exchange Commission (the "Commission"), or, if the Holder has not previously
been provided with such, a copy of the Company's most recent annual report on
Form 10-K filed with the Commission . This Term Note (with any interest payable
at Maturity being added to the principal amount here) will be automatically
extended for successive terms, equal in duration to the original term hereof, at
the rate(s) of interest in effect for Term Notes of this series then being
offered by the Issuer unless, prior to Maturity, the Issuer receives written
notification of the Holder's intent to redeem the Term Note or receive the
interest payment due at Maturity. All of the terms and conditions applicable to
the Term Note when issued will also apply during each period of extension. Upon
any extension hereof, unless this Term Note is surrendered and cancelled and a
new Term Note is issued in its stead, the principal amount of this Term Note
shall be deemed amended to include any accrued but unpaid interest that is added
to the principal amount and the date of Maturity shall be deemed amended to be
the date of Maturity of the period of extension.
Redemption Prior To Maturity By Holder. The Holder shall have the right at
its option to redeem this Term Note, in whole or in part, on any Business Day
prior to Maturity. Upon any such redemption, the Holder shall forfeit all
interest accrued since the date of issuance of this Term Note (or, in the case
of a renewal or extension of this Term Note, from the date of the most recent
renewal or extension); provided that the Issuer, in its sole discretion, may
waive all or any part of such forfeited interest. The Issuer retains the
absolute right, however, to require the Holder at any time (including the time
as which the Holder may otherwise request a partial or full redemption of this
Term Note) to give the Issuer up to 30 days' prior written notice by first class
mail of a redemption demanded by the Holder, which notice shall specify the
principal amount of the Term Note to be redeemed and the redemption date which
shall be a Business Day.
Optional Redemption By Issuer. This Term Note is subject to redemption upon
not less than 30 days' notice by first class mail, at any time, as a whole or in
part, at the election of the Issuer, without premium, together with accrued
interest to the date fixed for redemption in such notice (the "Redemption
Date"), but any interest installment, which is due and payable on or prior to
such Redemption Date, will be payable to the Holder at the close of business on
the relevant interest payment date. Each partial redemption payment shall be
made as provided in the Indenture on the Outstanding Securities of this series
of the Securities called for redemption.
In the event of redemption of this Term Note in part only, a new Term Note
or Term Notes for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
Recordations of Additions or Partial Redemptions. Upon presentation of this
Term Note at a Place of Payment, the Issuer, or the Issuer's agent, will, for
the Holder's convenience, record on the register that is a part hereof any
adjustments to the original principal amount of this Term Note, such as
additional purchases or partial redemptions.
3
[Reverse Side of One Month Term Note]
Assignment. As provided in the Indenture and subject to certain limitations
therein set forth, this Term Note shall not be transferable to any person except
by endorsement and delivery by the Holder, or his duly authorized representative
at any Place of Payment referred to above and, upon surrender to the Issuer with
proper endorsement, a new instrument of like tenor shall be issued in the name
of the transferee. No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Unless and until transferred in the manner aforesaid, the Issuer, the Trustee
and any agent of either of them, may treat the Holder whose name or names appear
on the face of this instrument as the absolute owner hereof for all purposes and
neither the Issuer, the Trustee nor any Paying Agent shall be affected by notice
to the contrary. If this Term Note is payable to two or more persons, they shall
be deemed to be joint tenants with right of survivorship and any and all
payments herein shall be made to either, or the survivor of them.
SUBORDINATION. THE INDEBTEDNESS EVIDENCED BY THIS TERM NOTE IS, TO THE
EXTENT AND IN THE MANNER PROVIDED IN THE INDENTURE, SUBORDINATE AND SUBJECT IN
RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN FULL OF ALL SENIOR INDEBTEDNESS (AS
DEFINED IN THE INDENTURE) OF THE ISSUER, WHETHER OUTSTANDING AT THE DATE OF THE
INDENTURE OR THEREAFTER INCURRED. EACH HOLDER OF THIS TERM NOTE, BY HIS
ACCEPTANCE HEREOF, AGREES TO AND SHALL BE BOUND BY ALL THE PROVISIONS OF THE
INDENTURE RELATING TO SUCH SUBORDINATION.
Event of Default. If an Event of Default, as defined in the Indenture,
shall occur and be continuing, the principal of all the Securities may be
declared due and payable in the manner and with the effect provided in the
Indenture.
When Payment Date is Not a Business Day. In any case where any interest
payment date, Redemption Date or the Maturity (as set forth above) of this Term
Note shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Term Note) payment of principal and interest 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 (as set forth above), provided that no interest shall accrue for the
period from and after such interest payment date, redemption date or stated
Maturity, as the case may be.
Issuable in Registered Form Only. This Term Note is one of a series of
Securities issuable only in registered form without coupons.
Defined Terms. All capitalized terms in this Term Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
4
[Reverse Side of One Month Term Note]
Initial Purchase/Register Balance
This Term Note Register is provided for the convenience of the Holder.
Entries may be made only by an authorized agent of the Issuer to reflect
additional purchases or redemptions. The Issuer will not be liable for any
transaction unless an entry is made hereon by an authorized agent of the Issuer.
The Holder will receive statements on a quarterly basis which will include all
transactions for the period.
--------------------------------------------------------------------------------
Transaction Date Received/Paid
By Redemptions Purchases
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5
Exhibit C
[Front Side of Term Notes Other Than One Month Notes]
____ Month
Subordinated Term Note
Series [T-6, T-12, T-36 or T-60 with Series
Designation Based on Original Term at
Date of Issuance]
The Xxxxxxx Group, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Date of Issue ______________________, 19__ No. __________________
FOR VALUE RECEIVED, The Xxxxxxx Group, Inc. (the "Issuer") hereby promises
to pay the principal amount of _________________________ Dollars
($_______________) _______________ calendar months after the date of issue to
Name ______________________
______________________
Social Security or Stated Maturity
Employer I.D. No. ("Maturity")
Address ______________________ _________________ _________________
______________________
(the "Holder"), or registered assigns, in the manner provided for on the reverse
side hereof. This Subordinated Term Note (the "Term Note") shall bear interest
on the unpaid principal amount from the date of issue until paid at the rate of
_____________ percent (____%) per annum, such interest to be payable as provided
on the reverse side of this Term Note.
Issuance Under Indenture. This Term Note is one of a series of a duly
authorized issue of securities of the Issuer (each a "Security") and, together,
the "Securities") issued and to be issued under an Indenture, dated as of
__________, 1998 (herein called the "Indenture") between the Issuer and The Bank
of New York, New York, as Trustee (herein called the "Trustee" which term
includes any successor Trustee under the Indenture) to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations, duties and immunities thereunder of the Issuer,
the Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
Reference is made to the further provisions of this Term Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the
Trustee, either directly or through an Authenticating Agent, by the manual or
facsimile signature of an authorized signer, this Term Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
[Front Side of Term Notes Other Than One Month Notes]
Interest Payment Options
Interest at the above rate will be paid
______ Monthly
______ Quarterly
______ At Maturity (compounded quarterly)
This Security is not a deposit, savings account or an obligation of an insured
depository institution and is not insured by The Federal Deposit Insurance
Corporation (FDIC) or any other governmental agency.
ATTEST: THE XXXXXXX GROUP, INC.
By: ________________________________ By: ________________________________
Xxxxxxx X. Xxxxx, Secretary Xxxxx X. Xxxxxxx
Chairman of the Board, President
[SEAL] and Chief Executive Officer
Authentication Certificate:
This Term Note is one of the series of Securities referred to in the
within-mentioned Indenture.
The Bank of New York, as Trustee
___________________________________
Authorized Agent
2
[Reverse Side of Term Notes Other Than One Month Notes]
Payment and Interest Accrual. Payment of the principal of and interest on
this Term Note shall be made in lawful money of the United States at any office
of The Xxxxxxx Group, Inc., or at such other place as the Issuer may designate
to the Holder in writing ("Place of Payment"); provided, however, that any such
payment may be made, at the option of the Issuer, by check mailed to the
registered address of the Holder. Upon payment or tender of payment hereof at
Maturity or earlier redemption (in whole), this Term Note shall be surrendered
to the Issuer for cancellation at the Place of Payment. Unless otherwise agreed
in writing by the Issuer, interest hereon shall cease to accrue, and the Issuer
shall have no further liability with respect thereto, upon payment (or tender of
payment in the aforesaid manner) of the outstanding principal amount hereof plus
all accrued but unpaid interest at Maturity or earlier redemption.
Possible Automatic Extensions. No later than 15 days prior to Maturity, the
Company will give the Holder of this Term Note notice by first-class mail of the
Maturity and provide the Holder with a copy of the Company's most recent
quarterly report on Form 10-Q filed with the United States Securities and
Exchange Commission (the "Commission"), or, if the Holder has not previously
been provided with such, a copy of the Company's most recent annual report on
Form 10-K filed with the Commission . This Term Note (with any interest payable
at Maturity being added to the principal amount here) will be automatically
extended for successive terms, equal in duration to the original term hereof, at
the rate(s) of interest in effect for Term Notes of this series then being
offered by the Issuer unless, prior to Maturity, the Issuer receives written
notification of the Holder's intent to redeem the Term Note or receive the
interest payment due at Maturity. All of the terms and conditions applicable to
the Term Note when issued will also apply during each period of extension. Upon
any extension hereof, unless this Term Note is surrendered and cancelled and a
new Term Note is issued in its stead, the principal amount of this Term Note
shall be deemed amended to include any accrued but unpaid interest that is added
to the principal amount and the date of Maturity shall be deemed amended to be
the date of Maturity of the period of extension.
Optional Redemption By Issuer. This Term Note is subject to redemption upon
not less than 30 days' notice by first class mail, at any time, as a whole or in
part, at the election of the Issuer, without premium, together with accrued
interest to the date fixed for redemption in such notice (the "Redemption
Date"), but any interest installment, which is due and payable on or prior to
such Redemption Date, will be payable to the Holder at the close of business on
the relevant interest payment date. Each partial redemption payment shall be
made as provided in the Indenture on the Outstanding Securities of this series
of the Securities called for redemption.
Redemption Prior To Maturity By Holder. The Holder shall have the right at
its option to redeem this Term Note in whole or in part on any Business Day
prior to Maturity. Upon such redemption, the Holder shall forfeit an amount
equal to the difference between the amount of interest actually accrued on this
Term Note since the date of issuance (or, in the case of a renewal or extension
of this Term Note from the date of the most recent renewal or extension) and the
amount of interest that would have accrued on this Term Note had the rate of
interest been 3% less than the rate of interest actually accrued. When necessary
to comply with the requirements of this paragraph, any interest already paid to
or for the account of the Holder shall be deducted from the amount redeemed.
Holders shall also have the right to make partial redemptions prior to Maturity;
provided, however, that, in the case of a partial redemption, a minimum
outstanding principal amount of $1,000 is maintained. The above-mentioned
forfeitures shall be calculated only upon the amount so redeemed. This Term Note
may be redeemed before Maturity without forfeiture of any interest upon the
death of the Holder of this Term Note or when the Holder of this Term Note is
determined to be legally incompetent by a court or other administrative body of
competent jurisdiction. The Issuer retains the absolute right to require the
Holder at any time (including the time at which the Holder may otherwise request
a partial or full redemption of this Term Note) to give the Issuer no less than
30 days' prior written notice by first class mail of a redemption demanded by
the Holder, which notice shall specify the principal amount of the Term Note to
be redeemed and the redemption date which shall be a Business Day.
In the event of redemption of this Term Note in part only, a new Term Note
or Term Notes for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
3
[Reverse Side of Term Notes Other Than One Month Notes]
Assignment. As provided in the Indenture and subject to certain limitations
set forth therein, this Term Note shall not be transferable to any person except
by endorsement and delivery by the Holder, or his duly authorized representative
at any Place of Payment referred to above and, upon surrender to the Issuer with
proper endorsement, a new instrument of like tenor shall be issued in the name
of the transferee. No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Unless and until transferred in the manner aforesaid, the Issuer, the Trustee
and any agent of either of them, may treat the Holder whose name or names appear
on the face of this instrument as the absolute owner hereof for all purposes and
neither the Issuer, the Trustee nor any Paying Agent shall be affected by notice
to the contrary. If this Term Note is payable to two or more persons, they shall
be deemed to be joint tenants with right of survivorship and any and all
payments herein shall be made to either, or the survivor of them.
SUBORDINATION. THE INDEBTEDNESS EVIDENCED BY THIS TERM NOTE IS, TO THE
EXTENT AND IN THE MANNER PROVIDED IN THE INDENTURE, SUBORDINATE AND SUBJECT IN
RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN FULL OF ALL SENIOR INDEBTEDNESS (AS
DEFINED IN THE INDENTURE) OF THE ISSUER, WHETHER OUTSTANDING AT THE DATE OF THE
INDENTURE OR THEREAFTER INCURRED. EACH HOLDER OF THIS TERM NOTE, BY HIS
ACCEPTANCE HEREOF, AGREES TO AND SHALL BE BOUND BY ALL THE PROVISIONS OF THE
INDENTURE RELATING TO SUCH SUBORDINATION.
Event of Default. If an Event of Default, as defined in the Indenture,
shall occur and be continuing, the principal of all the Securities may be
declared due and payable in the manner and with the effect provided in the
Indenture.
When Payment Date is Not a Business Day. In any case where any interest
payment date, Redemption Date or the stated Maturity (as set forth above) of
this Term Note shall not be a business day at any Place of Payment, then
(notwithstanding any other provision of this Term Note) payment of principal and
interest 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 (as set forth above), provided that no interest shall accrue for
the period from and after such interest payment date, Redemption Date or stated
Maturity, as the case may be.
Issuable in Registered Form Only. This Term Note is one of a series of
Securities issuable only in registered form without coupons.
Defined Terms. All capitalized terms in this Term Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
