EXHIBIT 4.4
(FORM OF SUBORDINATED INDENTURE)
CAPITAL AUTOMOTIVE REIT, as Issuer,
and
___________________, as Trustee
SUBORDINATED INDENTURE
Dated as of ___________, ____
Providing for Issuance of
Subordinated Debt Securities in Series
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY......................................... 2
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION.................................. 2
Section 101. Definitions.................................. 2
Section 102. Other Definitions............................ 16
Section 103. Compliance Certificates and Opinions......... 16
Section 104. Form of Documents Delivered to Trustee....... 17
Section 105. Acts of Holders.............................. 18
Section 106. Notices, etc., to Trustee, the Company
and any Guarantor............................ 19
Section 107. Notice to Holders; Waiver.................... 19
Section 108. Conflict with Trust Indenture Act............ 20
Section 109. Effect of Headings and Table of Contents..... 20
Section 110 Successors and Assigns....................... 20
Section 111. Separability Clause.......................... 20
Section 112. Benefits of Indenture........................ 21
Section 113. Governing Law................................ 21
Section 114. Legal Holidays............................... 21
Section 115. Schedules and Exhibits....................... 21
Section 116. Counterparts................................. 21
ARTICLE TWO SECURITY FORMS............................... 21
Section 201. Forms Generally.............................. 22
Section 202. Form of and Provisions Required in Global
Security..................................... 23
Section 203. Form of Trustee's Certificate of
Authentication............................... 23
Section 204. Form of Guarantee of Each of the
Guarantors................................... 24
ARTICLE III THE SECURITIES............................... 26
Section 301. Amount Unlimited; Issuable in Series......... 26
Section 302. Denominations................................ 30
Section 303. Execution, Authentication, Delivery and
Dating....................................... 30
Section 304. Temporary Securities......................... 32
Section 305. Global Securities............................ 32
Section 306. Registration, Registration of Transfer
and Exchange................................. 34
Section 307. Mutilated, Destroyed, Lost and Stolen 35
Securities................................
Section 308. [RESERVED]................................ 36
Section 309. Payment of Interest; Interest Rights
Preserved................................. 36
Section 310. Persons Deemed Owners..................... 37
Section 311. Cancellation.............................. 38
Section 312. Computation of Interest................... 38
Section 313. CUSIP Numbers............................. 38
ARTICLE FOUR DEFEASANCE AND COVENANT DEFEASANCE........ 39
Section 401. Company's Option to Effect Defeasance or
Covenant Defeasance....................... 39
Section 402. Defeasance and Discharge.................. 39
Section 403. Covenant Defeasance....................... 40
Section 404. Conditions to Defeasance or Covenant
Defeasance................................ 40
Section 405. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions.................. 42
Section 406. Reinstatement............................. 43
ARTICLE FIVE REMEDIES.................................. 43
Section 501. Events of Default......................... 43
Section 502. Acceleration of Maturity; Rescission and
Annulment................................. 45
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.................... 47
Section 504. Trustee May File Proofs of Claim.......... 47
Section 505. Trustee May Enforce Claims without
Possession of Securities.................. 48
Section 506. Application of Money Collected............ 48
Section 507. Limitation on Suits....................... 49
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest........... 50
Section 509. Restoration of Rights and Remedies........ 50
Section 510. Rights and Remedies Cumulative............ 50
Section 511. Delay or Omission Not Waiver.............. 50
Section 512. Control by Holders........................ 51
Section 513. Waiver of Past Defaults................... 51
Section 514. Undertaking for Costs..................... 51
Section 515. Waiver of Stay, Extension or Usury Laws... 52
ARTICLE SIX THE TRUSTEE............................... 52
Section 601. Notice of Defaults........................ 52
-ii-
Section 602. Certain Rights of Trustee................. 52
Section 603. Trustee Not Responsible for Recitals,
Dispositions of Securities or
Application of Proceeds Thereof........... 54
Section 604. Trustee and Agents May Hold Securities;
Collections; etc.......................... 54
Section 605. Money Held in Trust....................... 54
Section 606. Compensation and Indemnification of
Trustee and Its Prior Claim............... 55
Section 607. Conflicting Interests..................... 55
Section 608. Corporate Trustee Required; Eligibility... 56
Section 609. Resignation and Removal; Appointment of
Successor Trustee......................... 56
Section 610. Acceptance of Appointment by Successor.... 58
Section 611. Merger, Conversion, Consolidation or
Succession to Business.................... 59
Section 612. Preferential Collection of Claims Against
Company................................... 60
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY............................... 60
Section 701. Company to Furnish Trustee Names and
Addresses of Holders...................... 60
Section 702. Disclosure of Names and Addresses of
Holders................................... 60
Section 703. Reports by Trustee........................ 60
Section 704. Reports by Company and Guarantors......... 61
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE......................... 61
Section 801. Company or Any Guarantor May Consolidate,
etc., Only on Certain Terms............... 61
Section 802. Successor Substituted..................... 63
ARTICLE NINE SUPPLEMENTAL INDENTURES................... 64
Section 901. Supplemental Indentures and Agreements
without Consent of Holders................ 64
Section 902. Supplemental Indentures and Agreements
with Consent of Holders................... 65
Section 903. Execution of Supplemental Indentures and
Agreements................................ 66
Section 904. Effect of Supplemental Indentures......... 67
Section 905. Conformity with Trust Indenture Act....... 67
Section 906. Reference in Securities to Supplemental
Indentures................................ 67
Section 907. Effect on Senior Indebtedness............. 67
ARTICLE TEN COVENANTS................................. 67
-iii-
Section 1001. Payment of Principal, Premium and Interest.. 67
Section 1002. Maintenance of Office or Agency............. 68
Section 1003. Money for Security Payments to Be Held in
Trust....................................... 68
Section 1004. Corporate Existence......................... 70
Section 1005. Payment of Taxes and Other Claims........... 70
Section 1006. Maintenance of Properties................... 70
Section 1007. Insurance................................... 71
Section 1008. Statement by Officers as to Default......... 71
Section 1009. Waiver of Certain Covenants................. 71
ARTICLE ELEVEN REDEMPTION OF SECURITIES.................... 72
Section 1101. Rights of Redemption........................ 72
Section 1102. Applicability of Article.................... 72
Section 1103. Election to Redeem; Notice to Trustee....... 72
Section 1104. Selection by Trustee of Securities to Be
Redeemed.................................... 72
Section 1105. Notice of Redemption........................ 73
Section 1106. Deposit of Redemption Price................. 74
Section 1107. Securities Payable on Redemption Date....... 74
Section 1108. Securities Redeemed or Purchased in Part.... 74
ARTICLE TWELVE SUBORDINATION OF SECURITIES................. 75
Section 1201. Securities Subordinate to Senior
Indebtedness................................ 75
Section 1202. Payment Over of Proceeds Upon Dissolution,
etc......................................... 75
Section 1203. Suspension of Payment When Senior
Indebtedness in Default..................... 77
Section 1204. Payment Permitted if No Default............. 78
Section 1205. Subrogation to Rights of Holders of
Senior Indebtedness......................... 78
Section 1206. Provisions Solely to Define Relative Rights 79
Section 1207. Trustee to Effectuate Subordination......... 79
Section 1208. No Waiver of Subordination Provisions....... 79
Section 1209. Notice to Trustee........................... 80
Section 1210. Reliance on Judicial Order or Certificate
of Liquidating Agent........................ 81
Section 1211. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's
Rights...................................... 81
Section 1212. Article Applicable to Paying Agents......... 81
Section 1213. No Suspension of Remedies................... 82
Section 1214. Trustee's Relation to Senior Indebtedness... 82
ARTICLE THIRTEEN SATISFACTION AND DISCHARGE.................. 82
-iv-
Section 1301. Satisfaction and Discharge of Indenture..... 82
Section 1302. Application of Trust Money.................. 83
ARTICLE FOURTEEN GUARANTEE................................... 84
Section 1401. Guarantors' Guarantee....................... 84
Section 1402 Continuing Guarantee; No Right of Set-Off;
Independent Obligation...................... 84
Section 1403. Guarantee Absolut........................... 85
Section 1404. Right to Demand Full Performance............ 87
Section 1405. Waivers..................................... 87
Section 1406. The Guarantors Remain Obligated in Event
the Company Is No Longer Obligated to
Discharge Indenture Obligations............. 88
Section 1407. Fraudulent Conveyance; Contribution
Subrogation................................. 88
Section 1408. Guarantee Is in Addition to Other Security.. 89
Section 1409. Release of Security Interests............... 89
Section 1410. No Bar to Further Actions................... 89
Section 1411. Failure to Exercise Rights Shall Not
Operate as a Waiver; No Suspension of
Remedies.................................... 90
Section 1412. Trustee's Duties; Notice to Trustee......... 90
Section 1413. Successors and Assigns...................... 90
Section 1414. Release of Guarantee........................ 90
Section 1415. Execution of Guarantee...................... 91
Section 1416. Guarantee Subordinate to Guarantor Senior
Indebtedness................................ 91
Section 1417. Payment Over of Proceeds Upon Dissolution
of the Guarantor, etc....................... 92
Section 1418. Default on Guarantor Senior Indebtedness.... 93
Section 1419. Payment Permitted by Each of the Guarantors
if No Default............................... 93
Section 1420. Subrogation to Rights of Holders of
Guarantor Senior Indebtedness............... 94
Section 1421. Provisions Solely to Define Relative Rights. 94
Section 1422. Trustee to Effectuate Subordination......... 94
Section 1423. No Waiver of Subordination Provisions....... 95
Section 1424. Notice to Trustee by Each of the Guarantors. 95
Section 1425. Reliance on Judicial Order or Certificate
of Liquidating Agent........................ 96
Section 1426. Rights of Trustee as a Holder of Guarantor
Senior Indebtedness; Preservation of
Trustee's Rights............................ 97
Section 1427. Article Applicable to Paying Agents......... 97
Section 1428. No Suspension of Remedies................... 97
Section 1429. Trustee's Relation to Guarantor Senior
Indebtedness................................ 97
-v-
Reconciliation and ties between Trust Indenture Act of 1939, as amended,
and Indenture, dated as of ____________, 1998.
Trust Indenture Act Section Indenture Section(s)
--------------------------- --------------------
(S)(S) 310 (a)(1) 608
(a)(2) 608
(b) 607, 609
(S)(S) 311 (a) 612
(S)(S) 312 (a) 701
(b) 702
(c) 702
(S)(S) 313 (a) 703
(c) 703, 704
(S)(S) 314 (a) 704
(a)(4) 1008
(c)(1) 103, 104, 404, 1103
(c)(2) 103, 104, 404, 1103
(e) 103
(S)(S) 315 (a) 602, 903
(b) 601
(c) 602
(d) 602
(e) 514
(S)(S) 316 (a)(last sentence) 101
(a)(1)(A) 512
(a)(1)(B) 513
(b) 508
(c) 105
(S)(S) 317 (a)(1) 503
(a)(2) 504
(b) 1003
(S)(S) 318 (a) 108
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
INDENTURE, dated as of ____________, 1998, between CAPITAL AUTOMOTIVE REIT,
a real estate investment trust organized under the laws of the State of Maryland
(the "Company"), and _______________________________________________________, a
national banking association organized under the laws of the United States of
America, as trustee (the "Trustee").
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 subordinated
debentures, notes or other evidences of indebtedness ("Securities") to be issued
in one or more series as herein provided.
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act that are required to be part of and to govern indentures
qualified under the Trust Indenture Act.
All acts and things necessary have been done to make (i) the Securities of
any series, when their terms have been determined in accordance with this
Indenture and when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company,
(ii) the Guarantees, if and when executed by each of the Guarantors and
delivered hereunder, the valid obligation of each of the Guarantors and (iii)
this Indenture a valid agreement of the Company and, if applicable, each of the
Guarantors in accordance with the terms of this Indenture.
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 any series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or as set forth pursuant to Section 301 or unless the context otherwise
requires:
(a) 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-
(b) 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;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(d) 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; and
(e) all references to $, US$, dollars or United States dollars shall refer
to the lawful currency of the United States of America.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person, (ii) any other Person that
owns, directly or indirectly, 5% or more of such Person's Equity Interest or any
officer director or trustee of any such Person or other Person or, with respect
to any natural Person, any Person having a relationship with such Person or
other Person by blood, marriage or adoption not more remote than first cousin or
(iii) any other Person 10% or more of the voting Equity Interests of which are
beneficially owned or held directly or indirectly by 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 ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code of 1978, as
amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Bearer Security" means any Security issued hereunder which is payable to
bearer.
"Board of Trustees" means the board of Trustees of the Company or any
Guarantor, as the case may be, or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company or any Guarantor, as the case may be,
to have been duly adopted by the Board of Trustees or similar governing body of
such entity and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
-3-
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York, the
Commonwealth of Virginia or the city in which the Corporate Trust Office is
located are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" means any obligation of the Company and its
Restricted Subsidiaries on a Consolidated basis under any capital lease of real
or personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"Cash Equivalents" means, (i) any evidence of Indebtedness with a maturity
of one year or less from the date of acquisition issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of one year or less from the date of acquisition
of any financial institution that is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not less than
$500,000,000; (iii) commercial paper with a maturity of one year or less from
the date of acquisition issued by a Person that is not an Affiliate of the
Company organized under the laws of any state of the United States or the
District of Columbia and rated A-1 (or higher) according to S&P or P-1 (or
higher) according to Moody's or at least an equivalent rating category of
another nationally recognized securities rating agency; (iv) any money market
deposit accounts issued or offered by a domestic commercial bank having capital
and surplus in excess of $500,000,000; and (v) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the government of the United States of America or
issued by any agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within one year from the date of
acquisition; provided that the terms of such agreements comply with the
guidelines set forth in the Federal Financial Agreements of Depository
Institutions With Securities Dealers and Others, as adopted by the Comptroller
of the Currency on October 31, 1985.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means Capital Automotive REIT, a real estate investment trust
organized under the laws of the State of Maryland, until a successor Person
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
-4-
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
Vice Chairman, its President or a Vice President (regardless of vice
presidential designation), and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Net Worth" means the consolidated equity of the holders of
Equity Interests (excluding Disqualified Equity Interests) of the Company and
its Restricted Subsidiaries, as determined in accordance with GAAP consistently
applied.
"Corporate Trust Office" means the office of the Trustee or an affiliate or
agent thereof at which at any particular time the corporate trust business for
the purposes of this Indenture shall be principally administered, which office
at the date of execution of this Indenture is located at ______________________,
Attention: _____________.
"Default" means any event which is, or after notice or passage of any time
or both would be, an Event of Default.
"Depositary" means, with respect to the Securities issued in the form of
Global Securities, if any, The Depository Trust Company, a New York limited
purpose corporation, its nominees and successors, or any other Person designated
as the Depositary by the Company pursuant to Section 305(b), in each case
registered as a "clearing agency" under the Exchange Act and maintaining a book-
entry system that qualifies for treatment as "registered form" under Section
163(f) of the Code.
"Designated Guarantor Senior Indebtedness" means any Guarantor Senior
Indebtedness which is incurred pursuant to an agreement (or series of related
agreements) simultaneously entered into providing for indebtedness, or
commitments to lend, of at least $25,000,000 at the time of determination and is
specifically designated in the instrument evidencing such Guarantor Senior
Indebtedness (or the agreement under which such Guarantor Senior Indebtedness
arises) as "Designated Guarantor Senior Indebtedness" by the Guarantor which is
the obligor under the Guarantor Senior Indebtedness.
"Designated Senior Indebtedness" means any Senior Indebtedness which is
incurred pursuant to an agreement (or series of related agreements)
simultaneously entered into providing for indebtedness, or commitments to lend,
of at least $25,000,000 at the time of determination and is specifically
designated in the instrument evidencing such Senior Indebtedness (or the
agreement under which such Senior Indebtedness arises) as "Designated Senior
Indebtedness" by the Company.
"Disqualified Equity Interests" means any Equity Interests that, either by
their terms or by the terms of any security into which they are convertible or
exchangeable or otherwise, are or upon the happening of an event or passage of
time would be required to be redeemed prior to any
-5-
Stated Maturity of the principal of the Securities or are redeemable at the
option of the holder thereof at any time prior to any such Stated Maturity, or
are convertible into or exchangeable for debt securities at any time prior to
any such Stated Maturity at the option of the holder thereof.
"Equity Interest" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock or other equity
participations, including without limitation partnership interests, whether
general or limited, and interests in limited liability companies, of such
Person, including any Preferred Equity Interests.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, with respect to any asset or property, the sale
value that would be obtained in an arm's-length transaction between an informed
and willing seller under no compulsion to sell and an informed and willing buyer
under no compulsion to buy.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, which
are in effect on the date of this Indenture.
"Global Security" means a Security of any series in book entry form
evidencing all or part of the Securities of any series, issued to the Depositary
or its nominee and registered in the name of the Depositary or such nominee.
"Guarantee" means, in respect of the Securities of any series, the
guarantee, if any, by any Guarantor, if any, of the Company's Indenture
Obligations pursuant to a guarantee given in accordance with Section 301 of this
Indenture, including, without limitation, the Guarantees by the Guarantors, if
any, included in Article Fourteen of this Indenture.
"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person referred to in the definition of Indebtedness
contained in this Section guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (ii) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss, (iii) to
supply funds to, or in any other manner invest in, the debtor (including any
agreement to pay for property or services without requiring that such property
be received or such services be rendered), (iv) to maintain working capital or
equity capital of the debtor, or otherwise to maintain the net worth, solvency
or other financial condition of the debtor or (v)
-6-
otherwise to assure a creditor against loss; provided that the term "guarantee"
shall not include endorsements for collection or deposit, in either case in the
ordinary course of business.
"Guarantor," as of any time, means, in respect of a series of Securities, a
Subsidiary which provides a Guarantee pursuant to Section 301 of the Indenture
or any other guarantor of the Indenture Obligations. Guarantors, if any, will be
listed as signatories to any supplemental indenture of any series of Securities
which provide for Guarantees.
"Guarantor Senior Indebtedness" means the principal of, premium, if any,
and interest (including interest accruing after the filing of a petition
initiating any proceeding under any state, federal or foreign bankruptcy laws
whether or not allowable as a claim in such proceeding) on any Indebtedness of
any Guarantor (other than as otherwise provided in this definition), whether
outstanding on the date of this Indenture or thereafter created, incurred or
assumed, and whether at any time owing, actually or contingent, unless, in the
case of any particular Indebtedness, the instrument creating or evidencing the
same or pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to any Guarantee.
Notwithstanding the foregoing, "Guarantor Senior Indebtedness" shall not include
(i) Indebtedness evidenced by the Guarantees, (ii) Indebtedness that is
subordinate or junior in right of payment to any Indebtedness of any Guarantor,
(iii) Indebtedness which when incurred and without respect to any election under
Section 1111(b) of Title 11 of the United States Code, is without recourse to
any Guarantor, (iv) Indebtedness which is represented by Disqualified Equity
Interests, (v) any liability for foreign, federal, state, local or other taxes
owed or owing by any Guarantor to the extent such liability constitutes
Indebtedness, (vi) Indebtedness of any Guarantor to a Subsidiary or any other
Affiliate of the Company or any of such Affiliate's subsidiaries, (vii)
Indebtedness evidenced by any guarantee of any Subordinated Indebtedness or Pari
Passu Indebtedness, (viii) that portion of any Indebtedness which at the time of
issuance is issued in violation of this Indenture and (ix) Indebtedness owed by
any Guarantor for compensation to employees or for services.
"Holder" means a Person in whose name a Security of any series is
registered in the Security Register.
"Indebtedness" means, with respect to any Person, without duplication, (i)
all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services, excluding any trade payables and other accrued
current liabilities arising in the ordinary course of business, but including,
without limitation, all obligations, contingent or otherwise, of such Person in
connection with any letters of credit issued under letter of credit facilities,
acceptance facilities or other similar facilities and in connection with any
agreement to purchase, redeem, exchange, convert or otherwise acquire for value
any Equity Interests of such Person, or any warrants, rights or options to
acquire such Equity Interests, now or hereafter outstanding, (ii) all
obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other
-7-
title retention agreement with respect to property acquired by such Person (even
if the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), but
excluding trade payables arising in the ordinary course of business, (iv) all
Capital Lease Obligations of such Person, (v) all Indebtedness referred to in
clauses (i) through (iv) above of other Persons and all dividends of other
Persons, the payment of which is secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien, upon or with respect to property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness, (vi) all
Guaranteed Debt of such Person, (vii) all Disqualified Equity Interests valued
at the greater of their voluntary or involuntary maximum fixed repurchase price
plus accrued and unpaid dividends, and (viii) any amendment, supplement,
modification, deferral, renewal, extension, refunding or refinancing of any
liability of the types referred to in clauses (i) through (vii) above. The
amount of Indebtedness of any Person at any date shall be, without duplication,
the principal amount that would be shown on a balance sheet of such Person
prepared as of such date in accordance with GAAP and the maximum determinable
liability of any Guaranteed Debt referred to in clause (vi) above at such date.
The Indebtedness of the Company and its Restricted Subsidiaries shall not
include any Indebtedness of Unrestricted Subsidiaries so long as such
Indebtedness is non-recourse to the Company and the Restricted Subsidiaries. For
purposes hereof, the "maximum fixed repurchase price" of any Disqualified Equity
Interests which do not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Equity Interests as if such
Disqualified Equity Interests were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the Fair Market Value of such Disqualified Equity
Interests, such Fair Market Value to be determined in good faith by the Board of
Trustees or similar governing body of the issuer of such Disqualified Equity
Interests.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"Indenture Obligations" means the obligations of the Company and any other
obligor under this Indenture or under the Securities of any series, including
any Guarantor, to pay principal, premium, if any, and interest when due and
payable under the Securities of that series, and all other amounts due or to
become due under or in connection with this Indenture, the Securities of that
series, and the performance of all other obligations to the Trustee and the
Holders under this Indenture and the Securities of that series, according to the
terms hereof and thereof.
-8-
"Independent Trustee" means a Trustee of the Company other than a Trustee
(i) who (apart from being a Trustee of the Company or any Subsidiary) is an
employee, insider, associate or Affiliate of the Company or a Subsidiary or has
held any such position during the previous five years or (ii) who is a Trustee,
an employee, insider, associate or Affiliate of another party to the transaction
in question.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Investments" means, with respect to any Person, directly or indirectly,
any advance, loan (including guarantees), or other extension of credit or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase, acquisition or ownership by such Person of any Equity
Interests, bonds, notes, debentures or other securities or assets issued or
owned by any other Person and all other items that would be classified as
investments on a balance sheet prepared in accordance with GAAP.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind (including any conditional sale or other
title retention agreement, any leases in the nature thereof, and any agreement
to give any security interest), real or personal, movable or immovable, now
owned or hereafter acquired.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein provided or as
provided in this Indenture, whether at Stated Maturity, or the Redemption Date
and whether by declaration of acceleration, call for redemption or otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor rating
agency.
"Non-Payment Default" means any event (other than a Payment Default) the
occurrence of which entitles one or more Persons to accelerate the maturity of
any Designated Senior Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, Vice Chairman, the President or a Vice President (regardless of vice
presidential designation), and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company or any Guarantor, as the
case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, any of the Guarantors or the Trustee, unless an Opinion of
Independent Counsel is required pursuant to the terms of this Indenture, and who
shall be acceptable to the Trustee.
-9-
"Opinion of Independent Counsel" means a written opinion of counsel issued
by someone who is not an employee or consultant of the Company or any Guarantor
and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security that: (1) provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 301 or (2) does not provide for payment of interest prior to maturity.
"Outstanding" when used with respect to Securities of any series means,
unless otherwise provided pursuant to Section 301, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company or any Affiliate
thereof) in trust or set aside and segregated in trust by the Company or
such Affiliate (if the Company or such Affiliate shall act as the Paying
Agent) for the Holders; provided that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor reasonably satisfactory to the Trustee has
been made;
(c) Securities, except to the extent provided in Sections 402 and
403, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Four; and
(d) Securities in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof reasonably satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands the Securities
are valid obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company, any Guarantor, or any other obligor upon the Securities or any
Affiliate of the Company, any Guarantor, or 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 the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the reasonable
-10-
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company, any Guarantor or
any other obligor upon the Securities or any Affiliate of the Company, any
Guarantor or such other obligor.
"Pari Passu Indebtedness" means any Indebtedness of the Company or any
Guarantor that is pari passu in right of payment to the Securities or any
Guarantee of any particular series, as the case may be.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
"Payment Default" means any default in the payment of principal of,
premium, if any, or interest, on any Designated Senior Indebtedness.
"Permitted Guarantor Junior Securities" means (so long as the effect of any
exclusion employing this definition is not to cause the Guarantee to be treated
in any case or proceeding or similar event described in clause (a), (b) or (c)
of Section 1417 as part of the same class of claims as the Guarantor Senior
Indebtedness or any class of claims pari passu with, or senior to, the Guarantor
Senior Indebtedness) for any payment or distribution, debt or equity securities
of any Guarantor (or any successor corporation provided for by a plan of
reorganization or readjustment) that are subordinated at least to the same
extent that the Guarantee is subordinated to the payment of all Guarantor Senior
Indebtedness then outstanding; provided that (1) if a new corporation results
from such reorganization or readjustment, such corporation assumes any Guarantor
Senior Indebtedness not paid in full in cash or Cash Equivalents in connection
with such reorganization or readjustment and (2) the rights of the holders of
such Guarantor Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment.
"Permitted Junior Securities" means (so long as the effect of any exclusion
employing this definition is not to cause the Securities to be treated in any
case or proceeding or similar event described in clause (a), (b) or (c) of
Section 1202 as part of the same class of claims as the Senior Indebtedness or
any class of claims pari passu with, or senior to, the Senior Indebtedness) for
any payment or distribution, debt or equity securities of the Company (or any
successor Person provided for by a plan of reorganization or readjustment) that
are subordinated at least to the same extent that the Securities are
subordinated to the payment of all Senior Indebtedness then outstanding;
provided that (1) if a new Person results from such reorganization or
readjustment, such Person assumes any Senior Indebtedness not paid in full in
cash or Cash Equivalents in connection with such reorganization or readjustment
and (2) the rights of the holders of such Senior Indebtedness are not, without
the consent of such holders, altered by such reorganization or readjustment.
-11-
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivisions thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 307 in exchange for a mutilated
Security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Preferred Equity Interest," as applied to the Equity Interest of any
Person, means an Equity Interest of any class or classes (however designated)
which is preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such person, over Equity Interests of any other class of such
Person.
"Qualified Equity Interests" of any Person means any and all Equity
Interests of such Person other than Disqualified Equity Interests.
"Redemption Date" when used with respect to any Security to be redeemed
pursuant to any provision in this Indenture 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
pursuant to any provision in this Indenture 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
means the 15th day (whether or not a Business Day) next preceding such Interest
Payment Date.
"Responsible Officer" when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office or the agent of the Trustee
appointed hereunder, including any vice president, assistant vice president,
assistant secretary, or any other officer or assistant officer of the Trustee or
the agent of the Trustee appointed hereunder to whom any corporate trust matter
is referred because of his or her knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means a Subsidiary subject to the covenants or
events of default under the agreements governing other indebtedness of the
Company.
"S&P" means Standard & Poor's Ratings Service, a division of the McGraw
Hill Companies, or any successor rating agency.
"Securities" has the meaning specified in the Recitals.
-12-
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 306.
"Senior Indebtedness" means the principal of, premium, if any, and interest
(including interest accruing after the filing of a petition initiating any
proceeding under any state, federal or foreign bankruptcy law whether or not
allowable as a claim in such proceeding) on any Indebtedness of the Company
(other than as otherwise provided in this definition), whether outstanding on
the date of this Indenture or thereafter created, incurred or assumed, and
whether at any time owing, actually or contingent, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (i)
Indebtedness evidenced by the Securities, (ii) Indebtedness that is subordinate
or junior in right of payment to any Indebtedness of the Company, (iii)
Indebtedness which when incurred and without respect to any election under
Section 1111(b) of Title 11 of the United States Code, is without recourse to
the Company, (iv) Indebtedness which is represented by Disqualified Equity
Interests, (v) any liability for foreign, federal, state, local or other taxes
owed or owing by the Company to the extent such liability constitutes
Indebtedness, (vi) Indebtedness of the Company to a Subsidiary or any other
Affiliate of the Company or any of such Affiliate's subsidiaries, (vii) that
portion of any Indebtedness which at the time of issuance is issued in violation
of this Indenture and (viii) Indebtedness owed by the Company for compensation
to employees or for services.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 309.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon, means the date specified in such Indebtedness
as the fixed date on which the principal of such Indebtedness or such
installment of interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company or any
Guarantor subordinated in right of payment to Senior Indebtedness or Guarantor
Senior Indebtedness, as the case may be.
"Subsidiary" means any Person a majority of the equity ownership or the
Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"Successor Security" of any particular Security means every Security issued
after, and evidencing all or a portion of the same debt as that evidenced by,
such particular Security. For
-13-
the purposes of this definition, any Security authenticated and delivered under
Section 307 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.
"Temporary Cash Investments" means (i) any evidence of Indebtedness,
maturing not more than one year after the date of acquisition, issued by the
United States of America, or an instrumentality or agency thereof and guaranteed
fully as to principal, premium, if any, and interest by the United States of
America, (ii) any certificate of deposit, maturing not more than one year after
the date of acquisition, issued by, or time deposit of, a commercial banking
institution (including the Trustee) that is a member of the Federal Reserve
System and that has combined capital and surplus and undivided profits of not
less than $500,000,000, whose debt has a rating, at the time as of which any
investment therein is made, of "P-1" (or higher) according to Moody's or "A-1"
(or higher) according to S&P, (iii) commercial paper, maturing not more than one
year after the date of acquisition, issued by a Person (other than an Affiliate
or Subsidiary of the Company) (including the Trustee) organized and existing
under the laws of the United States of America with a rating, at the time as of
which any investment therein is made, of "P-1" (or higher) according to Moody's
or "A-1" (or higher) according to S&P and (iv) any money market deposit accounts
issued or offered by a domestic commercial bank (including the Trustee) having
capital and surplus in excess of $500,000,000.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument, until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee and, if at any time, there is more than one Trustee,
"Trustee" as used with respect to the Securities of any series shall mean the
Trustee with respect to the Securities of that series.
"U.S. Person" means a citizen or resident of the United States, a
corporation, real estate investment trust, limited liability company,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, or an estate or trust, the
income of which is subject to United States federal income taxation regardless
of its source.
"Unrestricted Subsidiary," with respect to any series of Securities, shall
have the meaning set forth as provided pursuant to Section 301.
"Voting Stock" means stock of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary circumstances to
elect at least a majority of the board of directors, managers or trustees of a
Person (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).
-14-
Section 102. Other Definitions.
-----------------
DEFINED IN
TERM SECTION
---- ----------
"Act" 105
"Agent Members" 305
"Bearer Global Security" 305
"Covenant Defeasance" 403
"Defaulted Interest" 309
"Defeasance" 402
"Defeasance Redemption Date" 404
"Defeased Securities" 401
"Global Security" 202
"Initial Blockage Period" 1203
"Payment Blockage Period" 1203
"Physical Securities" 305
"Senior Representative" 1203
"Surviving Entity" 801
"U.S. Government Obligations" 404
Section 103. 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, any Guarantor and any
other obligor on the Securities of any series shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) relating to the proposed 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,
certificates and/or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
-15-
Every certificate or Opinion of Counsel 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 covenant or condition 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 covenant or condition 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 104. 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, any Guarantor or
other obligor of the Securities of any series may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion 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, any Guarantor or
other obligor of the Securities of any series stating that the information with
respect to such factual matters is in the possession of the Company, any
Guarantor or other obligor of the Securities of that series, unless such counsel
knows that the certificate or opinion or representations with respect to such
matters are erroneous. Opinions of Counsel required to be delivered to the
Trustee may have qualifications customary for opinions of the type required and
counsel delivering such Opinions of Counsel may rely on certificates of the
Company or government or other officials customary for opinions of the type
required, including certificates certifying as to matters of fact, including
that various financial covenants have been complied with.
-16-
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 105. 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. Procedures in connection
with acts of Holders with respect to Bearer Securities shall be as provided
pursuant to Section 301. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture, if made in the manner provided in
this Section. The fact and date of the execution by any person of any such
instrument or writing or the authority of the person executing the same, may
also be proved in any other manner which the Trustee deems sufficient in
accordance with such reasonable rules as the Trustee may determine.
(b) The ownership of Securities of any series shall be proved by the
Security Register.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security of any series shall bind every
future Holder of the same Security of that series or the Holder of every
Security of that series issued upon the transfer thereof or in exchange therefor
or in lieu thereof, in respect of anything done, suffered or omitted to be done
by the Trustee, any Paying Agent or the Company or any Guarantor in reliance
thereon, whether or not notation of such action is made upon such Security.
(d) If the Company shall solicit from the Holders of Securities of one or
more series any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of such Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding Trust Indenture Act Section 316(c), any such record date shall
be the record date specified in or pursuant to such Board Resolution, which
shall be a date not more than 30 days prior to the first solicitation of Holders
generally in connection therewith and no later than the date such solicitation
is completed.
-17-
In the absence of any such record date fixed by the Company, regardless as
to whether a solicitation of the Holders of Securities of one or more series is
occurring on behalf of the Company or any Holder, the Trustee may, at its
option, fix in advance a record date for the determination of such Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Trustee shall have no obligation to do so.
Any such record date shall be a date not more than 30 days prior to the first
solicitation of Holders generally in connection therewith and no later than a
date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for purposes of determining
whether Holders of Securities of one or more series of the requisite proportion
of Securities then Outstanding have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for this purpose the Securities of any series then Outstanding shall be
computed as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other Act by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
Section 106. Notices, etc., to Trustee, the Company and any Guarantor.
--------------------------------------------------------
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:
(a) the Trustee by any Holder or by the Company or any Guarantor or any
other obligor of the Securities or a Senior Representative or holder of Senior
Indebtedness shall be sufficient for every purpose hereunder if in writing and
mailed, first-class postage prepaid, or delivered by recognized overnight
courier, to or with the Trustee at the Corporate Trust Office, Attention:
Corporate Trust Division, or at any other address previously furnished in
writing to the Holders, the Company, any Guarantor, any other obligor of the
Securities or a Senior Representative or holder of Senior Indebtedness by the
Trustee; or
(b) the Company or any Guarantor shall be sufficient for every purpose
(except as provided in Section 501(c)) hereunder or pursuant to Section 301 if
in writing and mailed, first-class postage prepaid, or delivered by recognized
overnight courier, to the Company or such Guarantor addressed to it at Capital
Automotive REIT, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President, or at any other address previously furnished in writing to
the Trustee by the Company.
Section 107. Notice to Holders; Waiver.
-------------------------
-18-
Where this Indenture or the Securities of any series provides for notice to
Holders of the Securities of any series of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, or delivered by recognized overnight
courier, 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. Any notice when
mailed to a Holder in the aforesaid manner shall be conclusively deemed to have
been received by such Holder whether or not actually received by such Holder.
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. Notices to Holders of Bearer Securities shall be
provided as may be specified pursuant to Section 301.
In case by reason of the suspension of regular mail service or by reason of
any other cause, it shall be impracticable to mail notice of any event as
required by any provision of this Indenture, then any method of giving such
notice as shall be reasonably satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
Section 108. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with any provision
of the Trust Indenture Act or another provision which is required or deemed to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, the provision or requirement of the Trust Indenture Act shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 109. 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 110 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company and the
Guarantors shall bind their successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
-------------------
-19-
In case any provision in this Indenture or in the Securities of any series
or in any Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 112. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or the Guarantees, express
or implied, shall give to any Person (other than the parties hereto and their
successors hereunder, any Paying Agent, the Holders and the holders of Senior
Indebtedness or Guarantor Senior Indebtedness) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES OF ANY SERIES AND ANY INTEREST COUPONS
APPERTAINING THERETO AND ANY GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF).
Section 114. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security of any series shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or premium, if any, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity and no interest shall accrue with respect to such payment for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to the next succeeding Business Day.
Section 115. Schedules and Exhibits.
----------------------
All schedules and exhibits attached hereto are by this reference made a
part hereof with the same effect as if herein set forth in full.
Section 116. Counterparts.
------------
This Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.
ARTICLE TWO
-20-
SECURITY FORMS
Section 201. Forms Generally.
---------------
The Securities of each series and the Trustee's certificate of
authentication and the interest coupons, if any, to be attached thereto shall be
in substantially such 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 applicable securities
exchange, organizational document, governing instrument or law or as may,
consistently herewith, be determined by the officers executing the Securities of
that series and interest coupons, if any, to be attached thereto, as evidenced
by their execution of the Securities and interest coupons, if any. If temporary
Securities of any series are issued as permitted by Section 304, the form
thereof also shall be established as provided in the preceding sentence. If the
forms of Securities and interest coupons, if any, of any series are established
by, or by action taken pursuant to, a Board Resolution, a copy of the Board
Resolution together with an appropriate record of any such action taken pursuant
thereto, including a copy of the approved form of Securities or interest
coupons, if any, shall be 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. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.
Unless otherwise provided pursuant to Section 301, Bearer Securities, if
any, shall have interest coupons attached.
The definitive Securities of any series shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities of that series may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
-21-
Section 202. Form of and Provisions Required in Global Security.
--------------------------------------------------
If Securities of or within a series are issuable in whole or in part in
global form, such Global Securities will be subject to Sections 301, 303, 304
(if applicable), 305 and 306.
Unless otherwise provided pursuant to Section 301, any Global Security
issued hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
IF THE DEPOSITORY TRUST COMPANY IS ACTING AS THE DEPOSITARY, INSERT --
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Section 203. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Unless otherwise provided pursuant to Section 301, the Trustee's
certificate of authentication shall be included on the Securities and shall be
substantially in the form as follows:
-22-
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
[Name of Trustee]
----------------------
As Trustee
By:
----------------------
Authorized Signatory
Section 204. Form of Guarantee of Each of the Guarantors.
-------------------------------------------
If a Guarantee is to be endorsed on a Security of any series, the form of
Guarantee shall be set forth on the Securities substantially as follows:
GUARANTEES
For value received, each of the undersigned hereby unconditionally
guarantees, jointly and severally, to the holder of this Security the payment of
principal of, premium, if any, and interest on this Security in the amounts and
at the time when due and interest on the overdue principal and interest, if any,
of this Security, if lawful, and the payment or performance of all other
obligations of the Company under the Indenture or the Securities, to the holder
of this Security and the Trustee, all in accordance with and subject to the
terms and limitations of this Security and Article Fourteen of the Indenture.
These Guarantees will not become effective until the Trustee duly executes the
certificate of authentication on this Security. The Indebtedness evidenced by
these Guarantees 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
Guarantor Senior Indebtedness (as defined in the Indenture), whether Outstanding
on the date of the Indenture or thereafter, and these Guarantees are issued
subject to such provisions.
-23-
[LIST OF GUARANTORS]
Attest:
By: ______________________ By: ____________________________
Name: ____________________ Name: __________________________
Title: ___________________ Title: __________________________
-24-
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
(a) The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
from time to time in one or more series.
(b) The following matters shall be established with respect to each series
of Securities issued hereunder (i) by a Board Resolution, (ii) by action taken
pursuant to a Board Resolution and (subject to Section 303) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 306, 307, 906 or 1108 or
any Securities of the series that, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal of and premium, if any,
on the Securities of the series will mature or the method or methods of
determining such date or dates;
(4) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method or
methods of calculating such rate or rates;
(5) the date or dates from which such interest, if any, shall accrue
or the method or methods by which such date or dates shall be determined;
(6) the date or dates on which interest, if any, shall be payable
and the record date or dates therefor, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve 30-day
months;
-25-
(7) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable, or at which
Securities of the series may be surrendered for registration of transfer
and exchange;
(8) the period or periods within which, the price or prices at which,
the currency or currencies if other than in United States dollars
(including currency unit or units) in which, and the other terms and
conditions upon which, Securities of the series may be redeemed, in whole
or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, the currency or currencies (if other than United States dollars)
(including currency unit or units) in which, and the other terms and
conditions upon which, Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) the denominations in which Securities of the series are authorized
to be issued;
(11) the currency or currency unit in which such Securities may be
denominated and/or the currency or currencies (including currency unit or
units) in which principal of, premium, if any, and interest, if any, on
such Securities will be payable and whether the Company or the holders of
any such Securities may elect to receive payments in respect of such
Securities in a currency or currency unit other than that in which such
Securities are stated to be payable;
(12) if the amount of payments of principal of, premium, if any, and
interest, if any, on the Securities of the series may be determined with
reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which the Securities
of the series are denominated or designated to be payable), the manner in
which such amounts will be determined;
(13) if other than the entire principal amount thereof, the portion of
the principal amount of such Securities of the series which shall be
payable upon declaration of acceleration thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
-26-
(15) any addition to, modifications of or deletion from the Events of
Default set forth in Section 501 or covenants of the Company set forth in
Article Nine pertaining to the Securities of the series;
(16) the circumstances, if any, under which the Company will pay
additional amounts on the Securities of that series held by a Person who is
not a U.S. Person (including any modification of the definition of such
term) in respect of taxes, assessments or similar charges;
(17) whether Securities of the series shall be issuable in registered
or bearer form (with or without interest coupons), or both, and any
restrictions applicable to the offering, sale, transfer or delivery of
Bearer Securities and, if other than as provided in Section 306, the terms
upon which Bearer Securities of a series may be exchanged for Securities of
the same series and vice versa;
(18) the date as of which any Bearer Securities of the series and any
temporary Global Security representing Outstanding Securities of the series
shall be dated, if other than the date of original issuance of the first
Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any, of the
series;
(20) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(21) the application, if any, of such means of defeasance or covenant
defeasance as may be specified for such Securities of that series;
(22) whether such Securities of the series are to be issued in whole
or in part in the form of one or more temporary or permanent Global
Securities, and, if so, the identity of the Depositary or its nominee, if
any, for such Global Securities, and the circumstances under which the
beneficial owners of interests in any Securities of the series in global
form may exchange such interests for certificated Securities of that
series, to be registered in the names of or to be held by such beneficial
owners or their nominees;
(23) if the Securities of the series may be issued or delivered, or
any installment of principal or interest is payable, only upon receipt of
certain certificates or other documents or satisfaction of other conditions
in addition to those specified in this Indenture, the form and terms of
such certificates, documents or conditions;
(24) if other than as provided in Section 309, the Person to whom any
interest on any Security of the series shall be payable and the manner in
which, or the Person to whom, any interest on any Bearer Securities of the
series shall be payable;
-27-
(25) any definitions for Securities of that series which are not to
be as set forth in this Indenture, including, without limitation, the
definition of "Unrestricted Subsidiary" to be used for that series;
(26) the relative degree to which Debt Securities of the series
offered shall be senior to or be subordinated to other series of
Securities, and to other indebtedness of the Company, in right of payment,
whether such other series of Securities and other indebtedness are
outstanding or not;
(27) whether such Debt Securities are guaranteed and, if so, the
identity of the Guarantors and the terms of such Guarantees (including
whether and the extent to which the Guarantees are subordinated to the
other indebtedness of the Guarantors);
(28) the terms, if any, upon which the Company may be able to redeem
such Debt Securities prior to their maturity including the dates on which
such redemptions may be made and the price at which such redemptions may be
made;
(29) the terms, if any, upon which such Securities of any series may
be converted or exchanged into or for Common Shares, Preferred Shares or
other securities or property of the Company;
(30) any restrictions on the registration, transfer or exchange of
the Securities; and
(31) any other terms not inconsistent with the terms of the Indenture
pertaining to the Securities or which may be required by or advisable under
United States laws or regulations or advisable (as determined by the
Company) in connection with the marketing of Securities of the series.
(c) All provisions set forth in this Indenture shall be applicable to
each series of Debt Securities issued hereunder unless otherwise specified in a
supplemental indenture entered into pursuant to this Section 301, in which case
the provisions of the supplemental indenture shall govern and references herein
to "unless otherwise provided pursuant to Section 301" are not intended to limit
what provisions may be amended pursuant to any supplemental indenture. Subject
to Sections 108, 113 and any controlling provision of the Trust Indenture Act,
in the event of any inconsistency between the terms of this Indenture and the
terms applicable to a series of Securities established in the manner permitted
by this Section 301, the (i) Board Resolution, (ii) Officers' Certificate or
(iii) supplemental indenture setting forth such conflicting term shall prevail.
(d) All Securities of any one series and interest coupons, if any,
appertaining thereto shall be substantially identical except as to denomination
and except as may otherwise be
-28-
provided (i) by a Board Resolution, (ii) by action taken pursuant to a Board
Resolution and (subject to Section 303) set forth, or determined in the manner
provided, in the related Officers' Certificate or (iii) in an indenture
supplemental hereto. All Securities of any one series need not be issued at the
same time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of that series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of that series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of that series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
(f) Unless otherwise provided pursuant to Section 301, payment of the
principal of, premium, if any, and interest on the Securities shall be made at
the office or agency of the Company maintained for that purpose as the Company
may designate pursuant to ▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made (i) by check mailed to
addresses of the Persons entitled thereto as such addresses shall appear on the
Security Register or (ii) by wire transfer in immediately available funds to an
account specified (not later than one Business Day prior to the applicable
Interest Payment Date) by the Holder thereof. If any of the Securities are held
by the Depository, payments of interest may be made by wire transfer to the
Depository. Procedures with respect to payments in connection with Bearer
Securities shall be established pursuant to Section 301.
Section 302. Denominations.
-------------
Unless otherwise provided pursuant to Section 301, the Securities shall be
issuable only in registered form without coupons and only in denominations of
$1,000 and any integral multiple of $1,000, and Bearer Securities shall be
issued in denominations of $5,000 or any integral multiple of $5,000.
Securities denominated in a foreign currency shall be issuable in such
denominations as are established with respect to such Securities in or pursuant
to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
Unless otherwise provided pursuant to Section 301, the Securities of any
series shall be executed on behalf of the Company by one of 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.
-29-
Securities and interest coupons, if any, on 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 on 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, together with any interest
coupons appertaining thereto, of any series executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as provided in this
Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security of any series 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 duly executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.
Unless otherwise provided pursuant to Section 301, in case the Company or
any Guarantor, pursuant to Article Eight, shall be consolidated, merged with or
into any other Person or shall sell, assign, convey, transfer or lease
substantially all of its properties and assets to any Person, and the successor
Person resulting from such consolidation, or surviving such merger, or into
which the Company or such Guarantor shall have been merged, or the Person which
shall have received a sale, assignment, conveyance, transfer or lease as
aforesaid, shall have executed an indenture supplemental hereto with the Trustee
pursuant to Article Eight, any of the Securities authenticated or delivered
prior to such consolidation, merger, sale, assignment, conveyance, transfer or
lease may, from time to time, at the request of the successor Person, be
exchanged for other Securities executed in the name of the successor Person with
such changes in phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Securities surrendered for such exchange and of
like principal amount; and the Trustee, upon Company Request of the successor
Person, shall authenticate and deliver Securities as specified in such request
for the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration of transfer of
any Securities, such successor Person, at the option of the Holders but without
expense to them, shall provide for the exchange of all Securities at the time
Outstanding for Securities authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities on behalf of the Trustee. Unless limited by the
terms of such
-30-
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Security Registrar or Paying Agent to deal with the Company
and its Affiliates.
The Bearer Securities will be transferable by delivery. Other terms,
conditions and restrictions in connection with Bearer Securities will be as
provided pursuant to Section 301.
The specific terms of the depositary arrangement with respect to any
portion of a series of Securities to be represented by a Global Security will be
as provided pursuant to Section 301.
Section 304. Temporary Securities.
--------------------
Unless otherwise provided pursuant to Section 301, pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
of any series 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 conclusively evidenced by their
execution of such Securities.
Unless otherwise provided pursuant to Section 301, after the preparation of
definitive Securities of any series, the temporary Securities of any series
shall be exchangeable for definitive Securities of that series upon surrender of
the temporary Securities of that series at the office or agency of the Company
designated for such purpose pursuant to Section 1002, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities 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 that series.
Section 305. Global Securities.
-----------------
(a) Unless otherwise provided pursuant to Section 301, any Global Security
of any series shall, if the Depositary permits, (i) be registered in the name of
the Depositary for such Global Security or the nominee of such Depositary, (ii)
be deposited with, or on behalf of, the Depositary and (iii) bear legends as set
forth in Section 202; provided, that the Securities are eligible to be in the
form of a Global Security.
Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary, or the Trustee as its custodian, or under the Global
Security, and the Depositary may be treated
-31-
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or shall
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any
Security.
The Securities of any series may also be issued in whole or in part in the
form of one or more bearer global securities (a "Bearer Global Security") that
will be deposited with a depositary, or with a nominee for such a depositary, as
provided pursuant to Section 301. Any Bearer Global Security may be issued in
temporary or permanent form. The specific terms and procedures, including the
specific terms of the depositary arrangement, with respect to any portion of a
series of Securities to be represented by one or more Bearer Global Securities
will be as provided pursuant to Section 301.
(b) Unless otherwise provided pursuant to Section 301, transfers of the
Global Security of a series shall be limited to transfers of such Global
Security in whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in a Global Security may be
transferred in accordance with the rules and procedures of the Depositary.
Under the circumstances described in this clause (b) below, beneficial owners
shall obtain physical securities in the form provided pursuant to Section 301
("Physical Securities") in exchange for their beneficial interests in a Global
Security in accordance with the Depositary's and the Securities Registrar's
procedures. In connection with the execution, authentication and delivery of
such Physical Securities, the Security Registrar shall reflect on its books and
records a decrease in the principal amount of the Global Security equal to the
principal amount of such Physical Securities and the Company shall execute and
the Trustee shall authenticate and deliver one or more Physical Securities
having an equal aggregate principal amount. Unless otherwise provided pursuant
to Section 301, the Securities will be delivered in certificated form if (i) the
Depositary ceases to be registered as a clearing agency under the Exchange Act
or is not willing or no longer willing or able to provide securities depository
services with respect to the Securities and a successor depositary is not
appointed by the Company within 90 days, (ii) the Company, in its sole
discretion, so determines or (iii) there shall have occurred an Event of Default
or an event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default with respect to the Securities represented by
such Global Security and such Event of Default or event continues for a period
of 90 days.
(c) In connection with any transfer of a portion of the beneficial interest
in a Global Security to a Physical Security pursuant to subsection (b) of this
Section to beneficial owners, the Security Registrar shall reflect on its books
and records the date and a decrease in the principal amount of a Global Security
in an amount equal to the principal amount of the beneficial interest in the
Global Security to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Physical Securities of like
tenor and amount.
-32-
(d) In connection with the transfer of the entire Global Security of any
series to beneficial owners pursuant to subsection (b) of this Section, a Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange for its
beneficial interest in a Global Security, an equal aggregate principal amount of
Physical Securities of authorized denominations.
(e) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
Section 306. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
Unless otherwise provided pursuant to Section 301, the Company shall cause
to be kept at the Corporate Trust Office of the Trustee, or such other office as
the Trustee may designate, a register (the register maintained in such office
and in any other office or agency designated pursuant to Section 1002 being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as the Security Registrar may prescribe, the Company
shall provide for the registration of Securities of any series and of transfers
of Securities of any series. The Trustee or an agent thereof shall initially be
the "Security Registrar" for the purpose of registering Securities of any series
and transfers of Securities of any series as herein provided.
Procedures with respect to the registration and registration of transfer
and exchange, and other matters related thereto, with respect to Bearer
Securities shall be provided pursuant to Section 301.
Unless otherwise provided pursuant to Section 301, upon surrender for
registration of transfer of any Security of any series at the office or agency
of the Company designated pursuant to Section 1002, 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 that series of any
authorized denomination or denominations, of a like aggregate principal amount.
Furthermore, any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interest in such Global
Security may be effected only through a book-entry system maintained by the
Holder of such Global Security (or its agent), and that ownership of a
beneficial interest in the Securities shall be required to be reflected in a
book entry.
Unless otherwise provided pursuant to Section 301, at the option of the
Holder, Securities of any series may be exchanged for other Securities of that
series of any authorized denomination
-33-
or denominations, of a like aggregate principal amount, upon surrender of the
Securities of that series to be exchanged at such office or agency. Whenever any
Securities of any series are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities of that
series which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities of any series shall be the valid obligations of the Company,
evidencing the same Indebtedness, and entitled to the same benefits under this
Indenture, as the Securities of the series surrendered upon such registration of
transfer or exchange.
Unless otherwise provided pursuant to Section 301, every Security presented
or surrendered for registration of transfer, or for exchange or redemption shall
(if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange or redemption of Securities of any series, but the Company
may require payment of a sum sufficient to pay all documentary, stamp or similar
issue or transfer taxes or other governmental charges that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Sections 303, 304, 305, 306, 307 and 906, not
involving any transfer.
Unless otherwise provided pursuant to Section 301, the Company shall not be
required (a) to issue, register the transfer of or exchange any Security of any
series during a period beginning at the opening of business (i) 15 days before
the date of selection of Securities of that series for redemption under Section
1104 and ending at the close of business on the day of such selection or (ii) 15
days before an Interest Payment Date and ending on the close of business on the
Interest Payment Date, or (b) to register the transfer of or exchange any
Security of that series so selected for redemption in whole or in part, except
the unredeemed portion of Securities of that series being redeemed in part.
Except as otherwise permitted pursuant to Section 304, any Security of a
series authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, any Global Security, whether pursuant to this
Section, Sections 304, 307, 906 or 1108 or otherwise, shall also be a Global
Security and bear the legend specified in Section 202.
Section 307. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If, (a) any mutilated Security of any series is surrendered to the Trustee,
or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security of any series, and there is delivered
to the Company, each Guarantor and the
-34-
Trustee, such security or indemnity, in each case, as may be required by them to
save each of them harmless, then, in the absence of notice to the Company, any
Guarantor or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a replacement Security
of that series of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security of any
series has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a replacement Security of that series, pay
such Security.
Upon the issuance of any replacement Securities of that series under this
Section, the Company may require the payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other governmental
charges that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every replacement Security of a series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security of that series shall constitute
an original additional contractual obligation of the Company and the Guarantors,
if any, whether or not the destroyed, lost or stolen Security of that series
shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
Procedures relating to mutilated, destroyed, lost or stolen Bearer
Securities shall be provided pursuant to Section 301.
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 308. [RESERVED]
Section 309. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Unless otherwise provided pursuant to Section 301, interest on any Security
of a series 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 of that series is registered at the close of business on the Regular
Record Date for such interest.
Unless otherwise provided pursuant to Section 301, any interest on any
Security of a series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date and interest on such defaulted
interest at the then applicable interest rate borne by the
-35-
Securities of that series, to the extent lawful (such defaulted interest and
interest thereon herein collectively called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the Regular Record Date; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of that series 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 that series and the date (not less than 30 days after such
notice) 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 Subsection 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 in writing of such Special Record Date. In
the name and at the expense of the Company, the Trustee shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder 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
that series are registered on such Special Record Date and shall no longer be
payable pursuant to the following Subsection (b).
(b) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of that series may be listed, and upon such notice as
may be required by such exchange, if, after written notice given by the Company
to the Trustee of the proposed payment pursuant to this Subsection, such payment
shall be deemed practicable by the Trustee.
Payment of interest and preservation of interest rights of Bearer
Securities shall be set forth pursuant to Section 301.
Subject to the foregoing provisions of this Section, each Security of any
series delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security of the same series shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security of the same series.
-36-
Section 310. Persons Deemed Owners.
---------------------
Unless otherwise provided pursuant to Section 301, the Company, any
Guarantor, the Trustee and any agent of the Company, any Guarantor or the
Trustee may treat the Person in whose name any Security of any series is
registered as the owner of such Security for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 309) interest on such
Security and for all other purposes whatsoever, whether or not such Security is
overdue, and neither the Company, any Guarantor, the Trustee nor any agent of
the Company, any Guarantor or the Trustee shall be affected by notice to the
contrary.
Unless otherwise provided as contemplated by Section 301, the Company, any
Guarantor, the Trustee and any agent of the Company, any Guarantor or the
Trustee may treat the bearer of any Bearer Security of any series and the bearer
of any interest coupon as the absolute owner of such Bearer Security or interest
coupon for the purpose of receiving payment thereof or on account thereof and
for all other purposes whatsoever, whether or not such Bearer Security or
interest coupon be overdue, and neither the Company, any Guarantor, the Trustee
nor any agent of the Company, the Guarantor or the Trustee shall be affected by
notice to the contrary.
No holder of any beneficial interest in any Global Security of any series
held on its behalf by a Depositary of that series shall have any rights under
this Indenture with respect to such Global Security of that series, and such
Depositary may be treated by the Company, any Guarantor, the Trustee and any
agent of the Company, any Guarantor or the Trustee as the owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, any Guarantor, the Trustee or any agent of the
Company, any Guarantor or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and such holders of beneficial interests, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of any Security of any series.
Section 311. Cancellation.
------------
All Securities of any series surrendered for payment, purchase, redemption,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already canceled, shall be promptly canceled by it. The Company and any
Guarantor may at any time deliver to the Trustee for cancellation any Securities
of any series previously authenticated and delivered hereunder which the Company
or such Guarantor may have acquired in any manner whatsoever, and all Securities
of any series so delivered shall be promptly canceled by the Trustee. No
Securities of any series shall be authenticated in lieu of or in exchange for
any Securities of that series canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities of any series
held by the Trustee shall be destroyed and certification of their destruction
delivered to the Company unless by a Company Order the Company shall direct that
the canceled Securities of that series be returned to it. The Trustee shall
provide the Company a
-37-
list of all Securities of the series that have been canceled from time to time
as requested by the Company.
Section 312. Computation of Interest.
-----------------------
Except as otherwise provided pursuant to Section 301, interest on the
Securities of all series shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 313. CUSIP Numbers.
-------------
The Company in issuing the Securities of any series may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities of that series or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities of that series, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise provided pursuant to Section 301, Securities of any series
shall be subject to the following provisions:
Section 401. Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
Unless otherwise provided pursuant to Section 301, the Company may, at its
option by Board Resolution, at any time, with respect to the Securities of any
series, elect to have either Section 402 or Section 403 be applied to all of the
Outstanding Securities of any series (the "Defeased Securities"), upon
compliance with the conditions set forth below in this Article Four.
Section 402. Defeasance and Discharge.
------------------------
Unless otherwise provided pursuant to Section 301, upon the Company's
exercise under Section 401 of the option applicable to this Section 402, the
Company, each of the Guarantors, if any, and any other obligor upon the
Securities of any series, if any, shall be deemed to have been discharged from
its obligations with respect to the Defeased Securities on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company, each of the Guarantors, if any,
and any other obligor under the Indenture shall be deemed to have paid and
discharged the entire Indebtedness represented by the Defeased Securities of
that series, which shall thereafter be deemed to be "Outstanding" only for the
-38-
purposes of Section 405 and the other Sections of this Indenture referred to in
(a) and (b) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, and, upon written request, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of Defeased Securities to receive, solely from the trust fund described
in Section 404 and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest on such Securities when such
payments are due, (b) the Company's obligations with respect to such Defeased
Securities under Sections 304, 305, 306, 1002 and 1003, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder, including, without
limitation, the Trustee's rights under Section 606, (d) this Article Four and
(e) if the Security is convertible, the right of the Holder to convert the
Security according to the terms set forth pursuant to Section 301. Subject to
compliance with this Article Four, the Company may exercise its option under
this Section 402 notwithstanding the prior exercise of its option under Section
403 with respect to the Securities of that series.
Section 403. Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 401 of the option applicable to
this Section 403, the Company and each Guarantor shall be released from its
obligations under any covenant or provision contained or referred to in Article
Ten (except Section 1002 and 1003) or otherwise set forth in this Indenture and
expressly made subject to this Section 403 pursuant to Section 301, and the
provisions of Article Twelve and, if applicable, Article Fourteen, shall not
apply, with respect to the Defeased Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance"),
and the Defeased Securities shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with such covenants
and the provisions of Article Twelve and, if applicable, Article Fourteen, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company and each Guarantor may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section or Article, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 501(c), (d) or (g), but, except as specified
above, the remainder of this Indenture and such Defeased Securities shall be
unaffected thereby.
Section 404. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
Unless otherwise provided pursuant to Section 301, the following shall be
the conditions to application of either Section 402 or Section 403 to the
Defeased Securities:
-39-
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 608
who shall agree to comply with the provisions of this Article Four applicable to
it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities, (a) United States dollars in an amount, or (b)
U.S. Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(c) a combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants or a nationally recognized investment
banking firm expressed in a written certification thereof delivered to the
Trustee, to pay and discharge and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge the principal of, premium, if
any, and interest on the Defeased Securities on the Stated Maturity of such
principal or installment of principal or interest (or on the "Defeasance
Redemption Date" as defined pursuant to Section 301), if when exercising under
Section 401 either its option applicable to Section 402 or its option applicable
to Section 403, the Company shall have delivered to the Trustee an irrevocable
notice to redeem all of the Outstanding Securities of the applicable series on
the Defeasance Redemption Date); provided that the Trustee shall have been
irrevocably instructed to apply such United States dollars or the proceeds of
such U.S. Government Obligations to said payments with respect to the Securities
of that series; and provided, further, that the United States dollars or U.S.
Government Obligations deposited shall not be subject to the rights of the
holders of Senior Indebtedness or Guarantor Senior Indebtedness pursuant to the
provisions of Articles Twelve and Fourteen. For this purpose, "U.S. Government
Obligations" means securities that are (i) direct obligations of the United
States of America for the timely payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act), as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
(2) In the case of an election under Section 402, the Company shall have
delivered to the Trustee an Opinion of Independent Counsel in the United States
stating that (A) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (B) since the date of this Indenture,
there has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Independent
-40-
Counsel in the United States shall confirm that, the holders of the Outstanding
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(3) In the case of an election under Section 403, the Company shall have
delivered to the Trustee an Opinion of Independent Counsel in the United States
to the effect that the holders of the Outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(4) No Default or Event of Default shall have occurred and be continuing on
the date of such deposit or insofar as subsections 501(h) and (i) are concerned,
at any time during the period ending on the 91st day after the date of deposit.
(5) Such defeasance or covenant defeasance shall not cause the Trustee for
the Securities of that series to have a conflicting interest with respect to any
securities of the Company or any Guarantor.
(6) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a Default under, this Indenture or any other
material agreement or instrument to which the Company or any Guarantor is a
party or by which it is bound.
(7) The Company shall have delivered to the Trustee an Opinion of
Independent Counsel to the effect that (A) the trust funds will not be subject
to any rights of holders of Senior Indebtedness or Guarantor Senior
Indebtedness, including, without limitation, those arising under this Indenture
and (B) after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the holders of the Securities of that series or any Guarantee over
the other creditors of the Company or any Guarantor with the intent of
defeating, hindering, delaying or defrauding creditors of the Company, any
Guarantor or others.
(9) No event or condition shall exist that would prevent the Company from
making payments of the principal of, premium, if any, and interest on the
Securities of that series on the date of such deposit or at any time ending on
the 91st day after the date of such deposit.
-41-
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 402 or the covenant defeasance under Section 403 (as the case may be)
have been complied with as contemplated by this Section 404.
Opinions of Counsel or Opinions of Independent Counsel required to be
delivered under this Section may have qualifications customary for opinions of
the type required and counsel delivering such opinions may rely on certificates
of the Company or government or other officials customary for opinions of the
type required, including certificates certifying as to matters of fact,
including that various financial covenants have been complied with.
Section 405. Deposited Money and U.S. Government Obligations to Be Held
----------------------------------------------------------
in Trust; Other Miscellaneous Provisions.
----------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all United
States dollars and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee as permitted under
Section 404 (collectively, for purposes of this Section 405, the "Trustee")
pursuant to Section 404 in respect of the Defeased Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Defeased Securities.
Anything in this Article Four to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
United States dollars or U.S. Government Obligations held by it as provided in
Section 404 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect defeasance or covenant defeasance.
Section 406. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any United States dollars
or U.S. Government Obligations in accordance with Section 402 or 403, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's and any Guarantor's obligations under this
-42-
Indenture and the Securities of that series and the provisions of Articles
Twelve and Fourteen hereof shall be revived and reinstated as though no deposit
had occurred pursuant to Section 402 or 403, as the case may be, until such time
as the Trustee or Paying Agent is permitted to apply all such United States
dollars or U.S. Government Obligations in accordance with Section 402 or 403, as
the case may be; provided, however, that if the Company makes any payment to the
Trustee or Paying Agent of principal of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Trustee or Paying
Agent shall promptly pay any such amount to the Holders of the Securities of
that series and the Company shall be subrogated to the rights of the Holders of
such Securities of that series to receive such payment from the money held by
the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
-----------------
Unless otherwise provided pursuant to Section 301, "Event of Default",
wherever used herein with respect to the Securities of any series, means any one
of the following events which has occurred and is continuing (whatever the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article Twelve or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) there shall be a default in the payment of any interest on any Security
of that series when it becomes due and payable, and such default shall continue
for a period of 30 days;
(b) there shall be a default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity (upon
acceleration, optional or mandatory redemption, required repurchase or
otherwise);
(c) (i) there shall be a default in the performance, or breach, of any
covenant or agreement of the Company or any Guarantor under this Indenture
(other than a default in the performance or breach of a covenant or agreement
which is specifically dealt with in clause (a) or (b) or in clause (ii) of this
clause (c)) and such default or breach shall continue for a period of 30 days
after written notice has been given, by certified mail, (1) to the Company by
the Trustee or (2) to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities of the series; or
(ii) there shall be a default in the performance or breach of the provisions of
Article Eight;
(d) one or more defaults shall have occurred under any agreements,
indentures or instruments under which the Company, any Guarantor or any
Restricted Subsidiary then has
-43-
outstanding Indebtedness in excess of $10,000,000 in the aggregate and, if not
already matured at its final maturity in accordance with its terms, such
Indebtedness shall have been accelerated;
(e) any Guarantee shall for any reason cease to be, or be asserted in
writing by any Guarantor or the Company not to be, in full force and effect, and
enforceable in accordance with its terms, except to the extent contemplated by
this Indenture and any such Guarantee;
(f) one or more judgments, orders or decrees for the payment of money in
excess of $10,000,000 either individually or in the aggregate (net of amounts
covered by insurance, bond, surety or similar instrument), shall be entered
against the Company, any Guarantor, or any Restricted Subsidiary or any of their
respective properties and shall not be discharged and either (a) any creditor
shall have commenced an enforcement proceeding upon such judgment, order or
decree or (b) there shall have been a period of 60 consecutive days during which
a stay of enforcement of such judgment or order, by reason of an appeal or
otherwise, shall not be in effect;
(g) any holder or holders of at least $10,000,000 in aggregate principal
amount of Indebtedness of the Company, any Guarantor, or any Restricted
Subsidiary after a default under such Indebtedness shall notify the Trustee of
the intended sale or disposition of any assets of the Company, any Guarantor or
any Restricted Subsidiary that have been pledged to or for the benefit of such
holder or holders to secure such Indebtedness or shall commence proceedings, or
take any action (including by way of set-off), to retain in satisfaction of such
Indebtedness or to collect on, seize, dispose of or apply in satisfaction of
Indebtedness, assets of the Company or any Restricted Subsidiary (including
funds on deposit or held pursuant to lock-box and other similar arrangements);
(h) there shall have been the entry by a court of competent jurisdiction of
(i) a decree or order for relief in respect of the Company, any Guarantor or any
Restricted Subsidiary in an involuntary case or proceeding under any applicable
Bankruptcy Law or (ii) a decree or order adjudging the Company, any Guarantor or
any Restricted Subsidiary bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company, any
Guarantor or any Restricted Subsidiary under any applicable federal or state
law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company, any Guarantor or any
Restricted Subsidiary or of any substantial part of their respective properties,
or ordering the winding up or liquidation of their affairs, and any such decree
or order for relief shall continue to be in effect, or any such other decree or
order shall be unstayed and in effect, for a period of 60 consecutive days; or
(i) (i) the Company, any Guarantor or any Restricted Subsidiary commences
a voluntary case or proceeding under any applicable Bankruptcy Law or any other
case or proceeding to be adjudicated bankrupt or insolvent, (ii) the Company,
any Guarantor or any Restricted Subsidiary consents to the entry of a decree or
order for relief in respect of the
-44-
Company, any Guarantor or such Restricted Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, (iii) the Company, any
Guarantor or any Restricted Subsidiary files a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
(iv) the Company, any Guarantor or any Restricted Subsidiary (1) consents to the
filing of such petition or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company, any Guarantor or such Restricted Subsidiary or
of any substantial part of its respective properties, (2) makes an assignment
for the benefit of creditors or (3) admits in writing its inability to pay its
debts generally as they become due.
Unless otherwise provided pursuant to Section 301, the Company shall
deliver to the Trustee within five business days after the occurrence thereof,
written notice, in the form of an Officers' Certificate, of any Default, its
status and what action the Company is taking or proposes to take with respect
thereto. Unless the Corporate Trust Office of the Trustee has received written
notice of an Event of Default of the nature described in this Section, the
Trustee shall not be deemed to have knowledge of such Event of Default for the
purposes of Article Five or for any other purpose.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
Unless otherwise provided pursuant to Section 301, if an Event of Default
(other than an Event of Default specified in Sections 501(h) and (i)) shall
occur and be continuing, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities Outstanding of the applicable
series may, and the Trustee at the request of the Holders of not less than 25%
in aggregate principal amount of the Securities of the applicable series
Outstanding shall, declare all unpaid principal of, premium, if any, and accrued
interest on, 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 the Holders of the Securities of that series).
Unless otherwise provided pursuant to Section 301, at any time after such
declaration of acceleration has been made but 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 aggregate principal amount of the
Securities Outstanding of the applicable series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to
pay (i) all sums paid or advanced by the Trustee under this Indenture and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, (ii) all overdue interest on all Securities of any
series, (iii) the principal of and premium, if any, on any Securities of any
series which have become due otherwise than by such declaration of acceleration
and
-45-
interest thereon at a rate borne by the Securities, and (iv) to the extent that
payment of such interest is lawful, interest upon overdue interest at the rate
borne by the Securities; and
(b) all Events of Default, other than the non-payment of principal of the
Securities of any series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon provided in Section 513. Provisions relating to acceleration
of the Maturity of a portion of the principal amount of an Original Issue
Discount Security upon the occurrence of an Event of Default and the
continuation thereof shall be provided pursuant to Section 301.
Section 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
The Company, as to Securities of any series, and any Guarantor, as to
Securities of any series guaranteed by such Guarantor, covenant that if
(a) default is made in the payment of any interest on any such Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of or premium, if any,
on any such Security at the Stated Maturity thereof, the Company and, if
applicable, any such Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, subject to Articles Twelve and,
if applicable, Article Fourteen, the whole amount then due and payable on such
Securities for principal and premium, if any, and interest, with interest upon
the overdue principal and premium, if any, and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities of that series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company or, if applicable, any Guarantor 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 and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company or, if applicable, any
Guarantor or any other obligor upon the Securities of any series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or, if applicable, any Guarantor or any other
obligor upon the Securities of that series, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture or the
-46-
Guarantees by such appropriate private or judicial proceedings as the Trustee
shall deem most effectual to protect and enforce such rights, including, seeking
recourse against any Guarantor pursuant to the terms of any Guarantee, 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 therein, or to enforce any
other proper remedy, including, without limitation, seeking recourse against any
Guarantor pursuant to the terms of a Guarantee, or to enforce any other proper
remedy, subject however to Section 512.
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, including each
Guarantor, upon the Securities of any series or the property of the Company or
of such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities of that series 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,
(a) to file and prove a claim for the whole amount of principal, and
premium, if any, and interest owing and unpaid in respect of the Securities of
that series 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
(b) subject to Article Twelve and, if applicable, Article Fourteen, to
collect and receive any moneys, securities or other property payable or
deliverable upon any conversion or exchange of Securities of that series or upon
any such claims and to distribute the same; and any custodian 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 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 606.
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
of any series or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of Securities.
-----------------------------------------------------------
-47-
All rights of action and claims under this Indenture or the Securities of
any series may be prosecuted and enforced by the Trustee without the possession
of any of the Securities of that series or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and 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 of that
series 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 or otherwise on
behalf of the Holders or the Trustee pursuant to this Article or through any
proceeding or any arrangement or restructuring in anticipation or in lieu of any
proceeding contemplated by this Article shall be applied, subject to applicable
law, 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, premium, if any,
or interest, upon presentation of the Securities of any series 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 606;
SECOND: Subject to Article Twelve and, if applicable, Article Fourteen, to
the payment of the amounts then due and unpaid upon the Securities of that
series for principal, premium, if any, and interest, 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, premium, if any, and interest; and
THIRD: Subject to Article Twelve and, if applicable, Article Fourteen, the
balance, if any, to the Person or Persons entitled thereto, including the
Company, provided that all sums due and owing to the Holders and the Trustee
have been paid in full as required by this Indenture.
Section 507. Limitation on Suits.
-------------------
No Holder of any Securities 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
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
-48-
(b) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
trustee hereunder;
(c) such Holder or Holders have offered to the Trustee an indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series; it being understood and
intended that no one or more Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture or any
Guarantee to affect, disturb or prejudice the rights of any other Holders, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner provided in this
Indenture or any Guarantee and for the equal and ratable benefit of all the
Holders of Securities of that series.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
------------------------------------------------------------
and Interest.
------------
Notwithstanding any other provision in this Indenture, but subject to
Article Twelve and, if applicable, Article Fourteen, the Holder of any Security
of any series shall have the right on the terms stated herein, which is absolute
and unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 309) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or repurchase date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder, subject to Article Twelve and, if
applicable, Article Fourteen.
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 or the Guarantees 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 the Company, each
of the Guarantors, the Trustee and the Holders shall, subject to any
determination in such proceeding, 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.
-49-
Section 510. Rights and Remedies Cumulative.
------------------------------
No right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security of any
series 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 not less than a majority in aggregate principal amount of
the Outstanding Securities of a series (or if more than one series is affected
thereby, of all series so affected, voting as a single class) 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 of that series, provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture or any Guarantee or expose the Trustee to personal liability; and
(b) 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.
-----------------------
Unless otherwise provided pursuant to Section 301, the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of that series
waive any past Default hereunder and its consequences, except a Default
(a) in the payment of the principal of, premium, if any, or interest on any
Security of any series; or
-50-
(b) in respect of a covenant or a provision hereof which under Article Nine
cannot be modified or amended without the consent of the holder of each
Outstanding Security of that series.
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 of any
series 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 of that series
for any action taken, suffered or omitted by it as Trustee of that series, 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 Trustee of that series, to any suit instituted by any
Holder, or group of Holders, of that series holding in the aggregate more than
10% in principal amount of the Outstanding Securities of that series, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of, premium, if any, or interest on any Security of any series on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
Each of the Company and any Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Company or any Guarantor
from paying all or any portion of the principal of, premium, if any, or interest
on the Securities of any series or which may affect the covenants or the
performance of this Indenture; and each of the Company and any Guarantor (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee of that series,
but will suffer and permit the execution of every such power as though no such
law had been enacted.
-51-
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.
------------------
Within 30 days after the occurrence of any Default, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, 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, premium, if any, or
interest on any Security of any series, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.
Section 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Trust Indenture Act Sections 315(a) through
315(d):
(a) 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;
(b) 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 Trustees may be sufficiently evidenced by a Board Resolution;
(c) the Trustee may consult with counsel and any written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon in accordance with such advice or Opinion
of Counsel;
(d) 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 security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred therein or thereby in
compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture other than any liabilities
arising out of the negligence of the Trustee;
-52-
(f) 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, approval,
appraisal, bond, debenture, note, coupon, security or other paper or document;
provided, that the Trustee in its discretion may make such further inquiry or
investigation into such facts or matters as it may deem 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;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) 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;
(i) the Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company, except as
otherwise provided herein;
(j) money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law, except as otherwise provided herein;
and
(k) if a Default or an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
Section 603. Trustee Not Responsible for Recitals, Dispositions of
-----------------------------------------------------
Securities or Application of Proceeds Thereof.
---------------------------------------------
The recitals contained herein and in the Securities of each series, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities of any series, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities of any securities and perform its obligations hereunder and that
the statements made by it in any Statement of Eligibility and Qualification on
Form T-1 supplied to the Company are true and accurate subject to the
qualifications set forth therein. The Trustee shall not be accountable for the
use or application by the Company of Securities of any series or the proceeds
thereof.
-53-
Section 604. Trustee and Agents May Hold Securities; Collections; etc.
--------------------------------------------------------
The Trustee, any Paying Agent, Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities, with the same rights it would have if it were not the
Trustee, Paying Agent, Security Registrar or such other agent and, subject to
Trust Indenture Act Sections 310 and 311, may otherwise deal with the Company
and receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not the Trustee, Paying Agent, Security
Registrar or such other agent.
Section 605. Money Held in Trust.
-------------------
All moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by
mandatory provisions of law. Except for funds or securities deposited with the
Trustee pursuant to Article Four, the Trustee may invest all moneys received by
the Trustee, until used or applied as herein provided, in Temporary Cash
Investments in accordance with the written directions of the Company. The
Trustee shall not be liable for any losses incurred in connection with any
investments made in accordance with this Section 605, unless the Trustee acted
with gross negligence or in bad faith. With respect to any losses on
investments made under this Section 605, the Company is liable for the full
extent of any such loss.
Section 606. Compensation and Indemnification of Trustee and Its Prior
---------------------------------------------------------
Claim.
-----
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation for all services
rendered by it hereunder (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) set forth in a
letter agreement executed by the Company and the Trustee, as such agreement may
be amended or supplemented, and the Company covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf
of it in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Company also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability, tax, assessment or
other governmental charge (other than taxes applicable to the Trustee's
compensation hereunder) or expense incurred without negligence or bad faith on
such Trustee's part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and such Trustee's
duties hereunder, including enforcement of this Indenture and also including any
liability which the Trustee may incur as a result of failure to withhold, pay or
report any tax, assessment or other governmental
-54-
charge, and the costs and expenses of defending itself against or investigating
any claim of liability (whether asserted by any Holder, the Company or any other
Person) in connection with the exercise or performance of any of its powers or
duties under this Indenture. The obligations of the Company under this Section
to compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute an additional obligation hereunder
and shall survive the satisfaction and discharge of this Indenture.
All payments and reimbursements pursuant to this Section 606 shall be made
with interest at the rate borne by the Securities.
As security for the performance of the obligations of the Company under
this Section 606, the Trustee shall have a Lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Securities. The Trustee's right to receive payment of
any amounts due under this Section 606 shall not be subordinate to any other
liability or indebtedness of the Company (even though the Securities of any
series may be so subordinate), and the Securities of any series shall be
subordinate to the Trustee's right to receive such payment.
Section 607. Conflicting Interests.
---------------------
The Trustee shall comply with the provisions of Section 310(b) of the Trust
Indenture Act.
Section 608. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be eligible to
act as trustee under Trust Indenture Act Section 310(a)(1) and which shall have
a combined capital and surplus of at least $250,000,000, to the extent there is
an institution eligible and willing to serve. The Trustee shall be a
participant in the Depository Trust Company and FAST distribution systems. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of federal, state, territorial or District of
Columbia 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, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. The Corporate Trust Office shall initially be located at ____________
_______________________________.
Section 609. Resignation and Removal; Appointment of Successor Trustee.
---------------------------------------------------------
-55-
(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 under Section 610.
(b) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign by giving written notice thereof to the Company. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
trustee by written instrument executed by authority of the Board of Trustees of
the Company, a copy of which shall be delivered to the resigning Trustee and a
copy to the successor trustee. If an instrument of acceptance by a successor
trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may, or any Holder
who has been a bona fide Holder of a Security of the applicable 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. Such court may thereupon, after such notice, if any, as it may deem
proper, appoint a successor trustee.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by an Act of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of that series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Trust
Indenture Act Section 310(b) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) 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
Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any case, (i) the
Company by a Board Resolution may remove the Trustee, or (ii) subject to
Section 514, the Holder of any Security who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
-56-
(e) If the Trustee shall 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 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 series and that
at any time there shall be only one Trustee with respect to the Securities of
any particular series). If, within one year after such removal or incapability,
or the occurrence of such vacancy, a successor trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of that series delivered to
the Company and the retiring Trustee, the successor trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of that series and to that extent supersede the
successor trustee appointed by the Company. If no successor Trustee with respect
to the Securities of that series shall have been so appointed by the Company or
the Holders of the Securities of that series and accepted appointment in the
manner hereinafter provided, the Holder of any Security of such series who has
been a bona fide Holder for at least six months may, subject to Section 514, 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 that series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Securities of the affected series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor trustee
and the address of its Corporate Trust Office or agent hereunder.
Section 610. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, such successor Trustee appointed hereunder 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 as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Company or
the successor trustee, upon payment of its charges then unpaid, such retiring
Trustee shall, pay over to the successor trustee all moneys at the time held by
it hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. 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 and powers. Any Trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by such
Trustee or such successor trustee to secure any amounts then due such Trustee
pursuant to the provisions of Section 606.
-57-
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 Guarantors,
the retiring Trustee and each successor Trustee with respect to the Securities
of such one or more series shall execute and deliver an indenture supplemental
hereto wherein such 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, such successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company, any Guarantor or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the Guarantors
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee with respect to the Securities of any series shall
accept appointment as provided in this Section 610 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article Sixth and
shall have a combined capital and surplus of at least $250,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 608.
Upon acceptance of appointment by any successor Trustee with respect to the
Securities of any particular series as provided in this Section 610, the Company
shall give notice thereof to the Holders of the Securities of any series
affected, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding
-58-
sentence may be combined with the notice called for by Section 609. If the
Company fails to give such notice within 10 days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to be
given at the expense of the Company.
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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be eligible under Trust Indenture Act Section
310(a) and this Article Sixth and shall have a combined capital and surplus of
at least $250,000,000 and have a Corporate Trust Office or an agent selected in
accordance with Section 608 without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of that series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of any series or in this Indenture provided that the certificate of
the Trustee shall have; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of that
series in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
Section 612. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company (or
other obligor under the Securities of any series), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor). A Trustee who has resigned or
been removed shall be subject to the Trust Indenture Act Section 311(a) to the
extent indicated therein.
ARTICLE SEVEN
HOLDERS' LISTS 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:
-59-
(a) semi-annually, not more than 15 days after each Regular Record Date, 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
(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that if and so long as the Trustee shall be the
Security Registrar, no such list need be furnished.
Section 702. Disclosure of Names and Addresses of Holders.
--------------------------------------------
Holders may communicate pursuant to Trust Indenture Act Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities, and the Trustee shall comply with Trust Indenture Act Section
312(b). The Company, the Trustee, the Security Registrar and any other Person
shall have the protection of Trust Indenture Act Section 312(c). Every Holder of
Securities of any series, 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
information as to the names and addresses of the Holders in accordance with
Trust Indenture Act Section 312, 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 Trust Indenture
Act Section 312.
Section 703. Reports by Trustee.
------------------
Within 60 days after May 15 of each year commencing with the first May 15
after the first issuance of Securities of each series, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, as provided in Trust Indenture Act Section 313(c), a brief
report dated as of such May 15 in accordance with and to the extent required by
Trust Indenture Act Section 313(a).
Section 704. Reports by Company and Guarantors.
---------------------------------
The Company and any Guarantor shall:
(a) file with the Trustee, within 15 days after the Company or any
Guarantor, as the case may be, 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 or any
Guarantor may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company or any Guarantor, as the
case may be, is not required to file information, documents or reports pursuant
to either of said Sections,
-60-
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;
(b) file with the Trustee and the Commission, in accordance with the rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company or
any Guarantor, as the case may be, with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations;
and
(c) transmit or cause to be transmitted by mail to all Holders, as their
names and addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent provided in
Trust Indenture Act Section 313(c), such summaries of any information, documents
and reports required to by filed by the Company or any Guarantor, as the case
may be, pursuant to Subsections (a) and (b) 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 or Any Guarantor May Consolidate, etc., Only on
-------------------------------------------------------
Certain Terms.
-------------
Unless otherwise provided pursuant to Section 301:
(a) The Company shall not, in a single transaction or through a series of
related transactions, consolidate with or merge with or into any other Person or
sell, assign, convey, transfer or lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to any Person or
group of affiliated Persons, or permit any of its Subsidiaries to enter into any
such transaction or transactions if such transaction or transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
disposal of all or substantially all of the properties and assets of the Company
and its Subsidiaries on a consolidated basis to any other Person or group of
affiliated Persons, unless at the time and after giving effect thereto:
(i) either (1) the Company shall be the continuing entity, or (2) the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company and its
-61-
Subsidiaries on a consolidated basis (the "Surviving Entity") shall be a
Person duly organized and validly existing under the laws of the United
States of America, any state thereof or the District of Columbia and such
Person assumes, by a supplemental indenture in a form reasonably
satisfactory to the Trustee, all the obligations of the Company under the
Securities and this Indenture, and this Indenture shall remain in full
force and effect;
(ii) immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) immediately after giving effect to such transaction on a pro
forma basis, the Consolidated Net Worth of the Company (or the Surviving
Entity if the Company is not the continuing obligor under this Indenture)
is equal to or greater than the Consolidated Net Worth of the Company
immediately prior to such transaction;
(iv) immediately before and immediately after giving effect to such
transaction on a pro forma basis (on the assumption that the transaction
occurred on the first day of the four-quarter period immediately prior to
the consummation of such transaction with the appropriate adjustments with
respect to the transaction being included in such pro forma calculation),
the Company (or the Surviving Entity if the Company is not the continuing
obligor under this Indenture) could incur $1.00 of additional Indebtedness
under any applicable provisions of the Indenture limiting incurrence of
indebtedness and established pursuant to Section 301;
(iv) each Guarantor, if any, unless it is the other party to the
transactions described above, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Person's obligations under
this Indenture and the Securities;
(vi) if any of the property or assets of the Company or any of its
Subsidiaries would thereupon become subject to any Lien, the provisions of
the Indenture limiting liens (established pursuant to Section 301) are
complied with; and
(vii) the Company or the Surviving Entity shall have delivered, or
caused to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each to the effect that such consolidation, merger, transfer,
sale, assignment, conveyance, lease or other transaction and the
supplemental indenture in respect thereto comply with this Indenture and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
(b) If any Securities of any series are guaranteed pursuant to Article
Fourteen, each Guarantor, if any, shall not, and the Company shall not permit a
Guarantor to, in a single
-62-
transaction or through a series of related transactions merge or consolidate
with or into any other Person (other than the Company or any other Guarantor) or
other entity, or sell, assign, convey, transfer, lease or otherwise dispose of
all or substantially all of its properties and assets on a consolidated basis to
any entity (other than the Company or any other Guarantor) unless at the time
and after giving effect thereto:
(i) either (1) such Guarantor shall be the continuing Person or (2)
the entity (if other than such Guarantor) formed by such consolidation or
into which such Guarantor is merged or the entity which acquires by sale,
assignment, conveyance, transfer, lease or disposition the properties and
assets of such Guarantor shall be a Person (other than an individual) duly
organized and validly existing under the laws of the United States, any
state thereof or the District of Columbia and shall expressly assume by an
indenture supplemental hereto, executed and delivered to the Trustee, in a
form reasonably satisfactory to the Trustee, all the obligations of such
Guarantor under its Guarantees and this Indenture;
(ii) immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing; and
(iii) such Guarantor shall have delivered to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
sale, assignment, conveyance, transfer, lease or disposition and such
supplemental indenture comply with this Indenture, and thereafter all
obligations of the predecessor shall terminate.
Section 802. Successor Substituted.
---------------------
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company or any Guarantor in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company or such
Guarantor, as the case may be, is merged or the successor Person to which such
sale, assignment, conveyance, transfer, lease or disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor, as the case may be, under this Indenture, the
Securities of any series and/or such Guarantee, as the case may be, with the
same effect as if such successor had been named as the Company or such
Guarantor, as the case may be, herein, in the Securities of that series and/or
in such Guarantee, as the case may be. When a successor assumes all the
obligations of its predecessor under this Indenture, the Securities of any
series or a Guarantee, as the case may be, the predecessor shall be released
from those obligations; provided that in the case of a transfer by lease, the
predecessor shall not be released from the payment of principal and interest on
the Securities of any series or a Guarantee, as the case may be.
-63-
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without Consent of
---------------------------------------------------------
Holders.
-------
Unless otherwise provided for in Section 301, without the consent of any
Holders, the Company and the Guarantors, 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 or agreements or other instruments with respect
to any Guarantee, in form and substance satisfactory to the Trustee, for any of
the following purposes:
(a) cause the Indenture to be qualified under the Trust Indenture Act
("TIA") or to add provisions expressly required under the TIA;
(b) evidence the succession of another Person to the Company, any
Guarantor or other obligor upon the Securities and the assumption by any such
successor of the covenants of the Company, any Guarantor or other obligor upon
the Securities under the Indenture and in the Securities of any series;
(c) add to the covenants of the Company, any Guarantor or other obligor
upon the Securities for the benefit of the Holders (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 an additional Event of Default to all or any series of Securities, or
surrender any right or power conferred upon the Company;
(d) to secure the Securities of any series thereof;
(e) to add to or change any provisions to such extent as necessary to
facilitate the issuance or administration of Securities in bearer form or to
facilitate the issuance or administration of Securities in global form;
(f) to change or eliminate any provision affecting only series of
Securities not yet issued;
(g) to establish the form or terms of Securities and Guarantee, if any, of
any series;
(h) to evidence and provide for successor Trustees or to add or change any
provisions of such Indenture to such extent as necessary to permit or facilitate
the appointment of a separate Trustee or Trustees for specific series of
Securities;
-64-
(i) to permit payment in respect of Securities in bearer form in the United
States to the extent allowed by law;
(j) to make provision with respect to any conversion or exchange rights of
holders not adverse to the holders of any Securities of any series then
outstanding with such conversion or exchange rights which provision directly
effects any such series, including providing for the conversion or exchange of
Securities into Common Shares or Preferred Shares;
(k) cure any ambiguity, correct or supplement any provision which may be
defective or inconsistent with any other provision, or make any other provisions
with respect to matters or questions arising under the Indenture which shall not
be inconsistent with the provisions of the Indenture; provided, however, that no
such modifications or amendment may adversely affect the interest of holders of
Securities of any series then outstanding in any material respect; or
(l) to add a Guarantor pursuant to the requirements of Article Fourteen.
Section 902. Supplemental Indentures and Agreements with Consent of
------------------------------------------------------
Holders.
-------
Unless otherwise provided pursuant to Section 301, with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of all series affected, by Act of said Holders delivered
to the Company, each Guarantor, and the Trustee, the Company and each Guarantor
(if a party thereto), when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto or agreements or other
instruments with respect to any Guarantee in form and substance satisfactory to
the Trustee 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 under this Indenture, the Securities or any
Guarantee; provided, however, that no such supplemental indenture, agreement or
instrument shall, without the consent of the Holder of each Outstanding Security
of all series affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
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
the coin or currency in which the principal of any Security or any premium or
the interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date);
(b) reduce the percentage in principal amount of the Outstanding Securities
of a series, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver or
compliance with certain provisions of this Indenture or certain defaults or with
respect to any Guarantee;
-65-
(c) modify any of the provisions of this Section, Section 513 or Section
1009, except to increase the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such actions or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security affected thereby;
(d) except as otherwise permitted under Article Eight, consent to the
assignment or transfer by the Company or any Guarantor of any of its rights and
obligations under this Indenture; or
(e) amend or modify any of the provisions of this Indenture relating to the
subordination of the Securities or any Guarantee in any manner adverse to the
Holders of the Securities or any Guarantee.
Upon the written request of the Company and each Guarantor, accompanied by
a copy of a Board Resolution authorizing the execution of any such supplemental
indenture or Guarantee, and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid, the Trustee shall, subject to Section 903, join
with the Company and each Guarantor in the execution of such supplemental
indenture or Guarantee.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture or Guarantee
or agreement or instrument relating to any Guarantee, but it shall be sufficient
if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures and Agreements.
---------------------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement or instrument 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 Trust Indenture Act Section 315(a)
through 315(d) and Section 602 hereof) shall be fully protected in relying upon,
an Opinion of Counsel and an Officers' Certificate stating that the execution of
such supplemental indenture, agreement or instrument is authorized or permitted
by this Indenture. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture, agreement or instrument which affects the
Trustee's own rights, duties or immunities under this Indenture, any Guarantee
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
-66-
Indenture for all purposes; and every Holder of Securities of each series
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 effect.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of each series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of each series so modified as to conform, in the
opinion of the Trustee and the Board of Trustees, to any such supplemental
indenture may be prepared and executed by the Company and each Guarantor and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of that series.
Section 907. Effect on Senior Indebtedness.
-----------------------------
No supplemental indenture shall adversely affect the rights under Article
Twelve and, if applicable, Article Fourteen, or any definitions or provisions
related thereto, or the Guarantees of any holder of Senior Indebtedness or
Guarantor Senior Indebtedness unless the requisite holders of each issue of
Senior Indebtedness or Guarantor Senior Indebtedness affected thereby shall have
consented to such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
Subject to the provisions of Article Twelve and, if applicable, Article
Fourteen, the Company will duly and punctually pay the principal of, premium, if
any, and interest on each series of the Securities in accordance with the terms
of the Securities of each series and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
Unless otherwise provided pursuant to Section 301, the Company will
maintain an office or agency where Securities of each series may be presented or
surrendered for payment. The Company also will maintain an office or agency
where Securities of each series may be
-67-
surrendered for registration of transfer, redemption or exchange and where
notices and demands to or upon the Company in respect of the Securities of each
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 any such
offices or agencies. If at any time the Company shall fail to maintain any such
required offices or agencies or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the office of the agent of the Trustee described above and the
Company hereby appoints such agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices or
agencies where the Securities of each series may be presented or surrendered for
any or all such purposes, and may from time to time rescind such designation.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such office or
agency.
Procedures with respect to Bearer Securities in connection with the matters
addressed in this Section 1002 shall be set forth pursuant to Section 301.
Unless otherwise provided pursuant to Section 301, the Trustee shall
initially serve as Paying Agent.
Section 1003. Money for Security Payments to Be Held in Trust.
-----------------------------------------------
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of, premium, if any, or interest on any
of the Securities of any series, segregate and hold in trust for the benefit of
the Holders entitled thereto a sum sufficient to pay the principal, premium, if
any, 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.
If the Company is not acting as Paying Agent, the Company will, before each
due date of the principal of, premium, if any, or interest on any Securities of
any series, deposit with a Paying Agent or Paying Agents, as the case may be, a
sum in same day funds sufficient to pay the principal, premium, if any, or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of such
action or any failure so to act.
If the Company is not acting as Paying Agent, the Company will cause each
Paying Agent 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:
-68-
(a) hold all sums held by it for the payment of the principal of, premium,
if any, or interest on Securities of any 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;
(b) give the Trustee notice of any Default by the Company or any Guarantor
(or any other obligor upon the Securities of any series) in the making of any
payment of principal, premium, if any, or interest;
(c) 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; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and disabilities of
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.
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, including each
Guarantor, upon the Securities of any series or the property of the Company or
of such other obligor or their creditors, the Trustee shall serve as the Paying
Agent.
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, premium, if any, or
interest on any Security of any series and remaining unclaimed for two years
after such principal and premium, if any, or interest has become due and payable
shall promptly 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 The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will promptly be repaid to the Company.
-69-
Section 1004. Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence and related rights and franchises (charter and statutory) of the
Company and each Subsidiary; provided, however, that the Company shall not be
required to preserve any such right or franchise or the corporate existence of
any such Subsidiary if the Board of Trustees of the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries as a whole and that the loss thereof would
not reasonably be expected to have a material adverse effect on the ability of
the Company to perform its obligations hereunder; and provided, further,
however, that the foregoing shall not prohibit a sale, transfer or conveyance of
a Subsidiary or any of its assets in compliance with the terms of this
Indenture.
Section 1005. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged, on or
before the date the same shall become due and payable, (a) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary shown to be due on any return of the Company or any Subsidiary or
otherwise assessed or upon the income, profits or property of the Company or any
Subsidiary if failure to pay or discharge the same could reasonably be expected
to have a material adverse effect on the ability of the Company or any
Guarantor, if any, to perform its obligations hereunder and (b) all lawful
claims for labor, materials and supplies, which, if unpaid, would 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 properly instituted and diligently conducted and in respect of which
appropriate reserves (in the good faith judgment of management of the Company)
are being maintained in accordance with generally accepted accounting principles
consistently applied.
Section 1006. Maintenance of Properties.
-------------------------
The Company will cause all material properties owned by the Company or any
Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order (ordinary wear and tear excepted) 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 consistent with sound business practice and 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 maintenance of any of
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
-70-
reasonably expected to have a material adverse effect on the ability of the
Company to perform its obligations hereunder.
Section 1007. Insurance.
---------
The Company will at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature insured with insurers, believed by
the Company to be responsible, against loss or damage to the extent that
property of similar character is usually so insured by corporations similarly
situated and owning like properties.
Section 1008. Statement by Officers as to Default.
-----------------------------------
(a) The Company will deliver to the Trustee, on or before a date not more
than 60 days after the end of each fiscal quarter and not more than 120 days
after the end of each fiscal year of the Company ending after the date hereof, a
written statement signed by two executive officers of the Company, one of whom
shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company, stating whether or not, after a
review of the activities of the Company during such year or such quarter and of
the Company's performance under this Indenture, to the best knowledge, based on
such review, of the signers thereof, the Company has fulfilled all its
obligations and is in compliance with all conditions and covenants under this
Indenture throughout such year or quarter, as the case may be, and, if there has
been a Default specifying each Default and the nature and status thereof.
(b) When any Default or Event of Default has occurred and is continuing, or
if the Trustee or any Holder or the trustee for or the holder of any other
evidence of Indebtedness of the Company or any Subsidiary gives any notice or
takes any other action with respect to a claimed default (other than with
respect to Indebtedness in the principal amount of less than $10,000,000), the
Company shall deliver to the Trustee by registered or certified mail or by
telegram, telex or facsimile transmission followed by hard copy an Officers'
Certificate specifying such Default, Event of Default, notice or other action
within five Business Days of its occurrence.
Section 1009. Waiver of Certain Covenants.
---------------------------
Unless otherwise provided pursuant to Section 301, the Company or any
Guarantor may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set forth in
any covenant provided pursuant to Sections 301 or 901 for the benefit of the
Holders of any series, if, before or after the time for such compliance, the
Holders of not less than a majority in aggregate principal amount of the
Securities of that series at the time Outstanding shall, by Act of such Holders,
waive such compliance in such instance with such covenant, but no such waiver
shall extend to or affect such covenant except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
-71-
Company and the duties of the Trustee in respect of any such covenant shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption.
--------------------
Unless otherwise provided pursuant to Section 301, the Securities of each
series may be redeemed at the election of the Company, in whole or in part, at
any time as specified pursuant to Section 301, subject to the conditions, and at
the Redemption Price, specified in the form of Security of each series
(specified pursuant to Section 301), together with accrued and unpaid interest,
if any, to the Redemption Date.
Section 1102. Applicability of Article.
------------------------
Redemption of Securities of each series at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
Section 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities of any series pursuant
to Section 1101 shall be evidenced by a Company Order and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, not less than 45 nor more than 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice period shall be satisfactory
to the Trustee), notify the Trustee in writing of such Redemption Date and of
the principal amount of Securities of that series to be redeemed.
Section 1104. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed, the
particular Securities of that series or portions thereof to be redeemed shall be
selected not more than 30 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities not previously called for redemption, pro rata, by
lot or such other method as the Trustee shall deem fair and reasonable, and the
amounts to be redeemed may be equal to $1,000 or any integral multiple thereof.
The Trustee shall promptly notify the Company and the Security Registrar in
writing of the Securities of each series selected for redemption and, in the
case of any Securities of that series selected for partial redemption, the
principal amount thereof to be redeemed.
-72-
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Securities of any series (including
interest coupons, if any) shall relate, in the case of any Security of that
series (including interest coupons, if any) redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security of that series
(including interest coupons, if any) which has been or is to be redeemed.
Section 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities of the affected series to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of any series are to be
redeemed, the identification of the particular Securities of that series to be
redeemed;
(d) in the case of a Security of any series to be redeemed in part, the
principal amount of such Security to be redeemed and that after the Redemption
Date upon surrender of such Security of that series, new Security or Securities
of that series in the aggregate principal amount equal to the unredeemed portion
thereof will be issued;
(e) that Securities of any series called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security or portion thereof, and that (unless the Company
shall default in payment of the Redemption Price) interest thereon shall cease
to accrue on and after said date;
(g) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(h) the CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities of any series to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of the Company.
-73-
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been given, whether or not the Holder receives such notice. In
any case, failure to give such notice to any Holder of any Security of any
series designated for redemption as a whole or in part, or any defect in any
such notice, shall not affect the validity of the proceedings for the redemption
of any other Security of any series.
Section 1106. Deposit of Redemption Price.
---------------------------
On or 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 in same day funds 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 or portions thereof which are to be redeemed on that date. When
the Redemption Date falls on an Interest Payment Date, payments of interest due
on such date are to be paid as provided hereunder as if no such redemption were
occurring.
Section 1107. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities of the
series 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 whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such on the relevant Regular Record Dates according to the terms and the
provisions of Section 309.
If any Security of any series called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security.
Procedures regarding the treatment of Holders of Bearer Securities with
respect to the matters addressed in this Section 1107 shall be provided pursuant
to Section 301.
Section 1108. Securities Redeemed or Purchased in Part.
----------------------------------------
Any Security of any series which is to be redeemed or purchased only in
part shall be surrendered to the Paying Agent at the office or agency maintained
for such purpose pursuant to Section 1002 (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by (or a written
instrument of transfer in form satisfactory to the Company, the
-74-
Security Registrar or the Trustee duly executed by) the Holder thereof or such
Holder's 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 that 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 of that series so surrendered that is not redeemed or purchased.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
Unless otherwise provided pursuant to Section 301, the following provisions
shall apply to the Securities of any series:
Section 1201. Securities Subordinate to Senior Indebtedness.
---------------------------------------------
Unless otherwise provided pursuant to Section 301, the Company covenants
and agrees, and each Holder of a Security, by his acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article, the Indebtedness represented by the Securities and the
payment of the principal of, premium, if any, and interest on each and all of
the Securities and all other Indenture Obligations are hereby expressly made
subordinate and subject in right of payment as provided in the Indenture to the
prior payment in full, in cash or Cash Equivalents or in any other form as
acceptable to the holders of Senior Indebtedness, of all Senior Indebtedness,
whether outstanding on the date of the Indenture or thereafter incurred.
This Article Twelve shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become holders of, or continue to hold Senior
Indebtedness; and such provisions are made for the benefit of the holders of
Senior Indebtedness; and such holders are made obligees hereunder and they or
each of them may enforce such provisions.
Section 1202. Payment Over of Proceeds Upon Dissolution, etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets or liabilities of the Company, then and in any
such event:
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full in cash or Cash Equivalents or in any other form as
acceptable to the holders of Senior Indebtedness of all amounts due on or
in respect of all Senior Indebtedness, before
-75-
the Holders of the Securities are entitled to receive any payment or
distribution of any kind or character (excluding Permitted Junior
Securities) on account of the principal of, premium, if any, or interest on
the Securities of any series or any other Indenture Obligations; and
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities), by set-off or otherwise, to which the Holders
or the Trustee would be entitled but for the provisions of this Article
shall be paid by the liquidating trustee or agent or other Person making
such payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any
of such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness
held or represented by each, to the extent necessary to make payment in
full in cash or Cash Equivalents or in any other form as acceptable to the
Holders of Senior Indebtedness, of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions
of this Section, the Trustee or the Holder of any Security of any series
shall have received any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, in respect
of principal, premium, if any, and interest on the Securities of any series
or any other Indenture Obligations before all Senior Indebtedness is paid
in full, then and in such event such payment or distribution (excluding
Permitted Junior Securities) shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee, agent or other person making payment or distribution of assets of
the Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full in cash or Cash Equivalents or in any other form as acceptable to the
Holders of Senior Indebtedness, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company with or
into, another Person or the liquidation or dissolution of the Company following
the sale, assignment, conveyance, transfer, lease or other disposal of all or
substantially all of the Company's properties or assets to another Person upon
the terms and conditions set forth in Article Eight shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshaling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such consolidation or the
surviving entity of such merger or the Person which acquires by sale,
assignment, conveyance, transfer, lease or other disposal of all or
substantially all of the Company's properties or assets, as the case may be,
shall, as a part of such
-76-
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposal, comply with the conditions set forth in Article Eight.
Section 1203. Suspension of Payment When Senior Indebtedness in Default.
---------------------------------------------------------
(a) Unless Section 1202 shall be applicable, upon the occurrence of a
Payment Default, no payment (other than any payments previously made pursuant to
the provisions described in Article Four) or distribution of any assets of the
Company of any kind or character (excluding Permitted Junior Securities) shall
be made by the Company on account of principal of, premium, if any, or interest
on, the Securities of any series or any other Indenture Obligations or on
account of the purchase, redemption, defeasance (whether under Section 402 or
403) or other acquisition of or in respect of the Securities unless and until
such Payment Default shall have been cured or waived or shall have ceased to
exist or the Designated Senior Indebtedness with respect to which such Payment
Default shall have occurred shall have been discharged or paid in full in cash
or Cash Equivalents or in any other form as acceptable to the Holders of Senior
Indebtedness, after which the Company shall resume making any and all required
payments in respect of the Securities, including any missed payments.
(b) Unless Section 1202 shall be applicable, upon (1) the occurrence of a
Non-payment Default and (2) after receipt by the Trustee and the Company from a
representative of the holder of any Designated Senior Indebtedness (a "Senior
Representative") of written notice of such occurrence, no payment (other than
any payments previously made pursuant to the provisions described in Article
Four) or distribution of any assets of the Company of any kind or character
(excluding Permitted Junior Securities) shall be made by the Company on account
of any principal of, premium, if any, or interest on, the Securities or any
other Indenture Obligations or on account of the purchase, redemption,
defeasance or other acquisition of or in respect of Securities for a period
("Payment Blockage Period") commencing on the date of receipt by the Trustee of
such notice unless and until the earliest of (subject to any blockage of
payments that may then or thereafter be in effect under subsection (a) of this
Section 1203) (x) 179 days having elapsed since receipt of such written notice
by the Trustee (provided any Designated Senior Indebtedness as to which notice
was given shall theretofore have not been accelerated), (y) the date such Non-
payment Default and all other Non-payment Defaults as to which notice is also
given after such period is initiated shall have been cured or waived or shall
have ceased to exist or the Designated Senior Indebtedness related thereto shall
have been discharged or paid in full in cash or Cash Equivalents or in any other
form as acceptable to the Holders of Designated Senior Indebtedness, or (z) the
date on which such Payment Blockage Period (and all Non-payment Defaults as to
which notice is given after such Payment Blockage Period is initiated) shall
have been terminated by written notice to the Company or the Trustee from the
representative of holders of Designated Senior Indebtedness, or the holders of
at least a majority of the Designated Senior Indebtedness, that initiated such
Payment Blockage Period, after which, in each such case, the Company shall
promptly resume making any and all required payments in respect of the
Securities, including any missed payments. Notwithstanding any other provision
-77-
of this Indenture, in no event shall a Payment Blockage Period extend beyond 179
days from the date of the receipt by the Company or the Trustee of the notice
referred to in clause (2) of this paragraph (b) (the "Initial Blockage Period").
Any number of notices of Non-payment Defaults may be given during the Initial
Blockage Period; provided that during any 365-day consecutive period only one
Payment Blockage Period during which payment of principal of, or interest on,
the Securities may not be made may commence and the duration of the Payment
Blockage Period may not exceed 179 days. No Non-payment Default with respect to
Designated Senior Indebtedness which existed or was continuing on the date of
the commencement of any Payment Blockage Period will be, or can be, made the
basis for the commencement of a second Payment Blockage Period, whether or not
within a period of 365 consecutive days, unless such default shall have been
cured or waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, then and in such event such payment shall
be paid over and delivered forthwith to a Senior Representative of the holders
of the Designated Senior Indebtedness or as a court of competent jurisdiction
shall direct.
Section 1204. Payment Permitted if No Default.
-------------------------------
Nothing contained in this Article, elsewhere in this Indenture or in any of
the Securities shall prevent the Company, at any time except during the pendency
of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 1202 or under the conditions
described in Section 1203, from making payments at any time of principal of,
premium, if any, or interest on the Securities.
Section 1205. Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness in cash or Cash
Equivalents or in any other form as acceptable to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the rights of
the holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest on the Securities shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of Senior Indebtedness of any cash, property or securities to which the
Holders or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
-78-
Section 1206. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of, premium, if any, and interest on the Securities as
and when the same shall become due and payable in accordance with their terms;
or (b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness (1) in any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in Section 1202, to receive,
pursuant to and in accordance with such Section, cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder, or (2) under the
conditions specified in Section 1203, to prevent any payment prohibited by such
Section or enforce their rights pursuant to Section 1203(c).
Section 1207. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
Indebtedness of the Company owing to such Holder in the form required in such
proceedings and the causing of such claim to be approved.
Section 1208. No Waiver of Subordination Provisions.
-------------------------------------
(a) No right of any present or future holder 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 by any such holder, or by any non-compliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without limiting the generality of Subsection (a) of this Section and
notwithstanding any other provision contained herein, the holders of Senior
Indebtedness may, at
-79-
any time and from time to time, without the consent of or notice to the Trustee
or the Holders of the Securities, without incurring responsibility to the
Holders of the Securities and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the Holders of the
Securities to the holders of Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
Person liable in any manner for the collection or payment of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company and any other Person; provided, however, that in no event shall any such
actions limit the right of the Holders of the Securities to take any action to
accelerate the maturity of the Securities in accordance with the provisions set
forth in Article Five or to pursue any rights or remedies under this Indenture
or under applicable laws if the taking of such action does not otherwise violate
the terms of this Article.
Section 1209. Notice to Trustee.
-----------------
(a) The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities or other Indenture Obligations.
Notwithstanding the provisions of this Article or any provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from a Senior Representative or any trustee, fiduciary or agent therefor; and,
prior to the receipt of any such written notice, the Trustee shall be entitled
in all respects to assume that no such facts exist; provided, however, that if
the Trustee shall not have received the notice provided for in this Section
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Security or other Indenture Obligations),
then, anything herein contained to the contrary notwithstanding but without
limiting the rights and remedies of the holders of Senior Indebtedness or any
trustee, fiduciary or agent thereof, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it after such date; nor shall the Trustee be charged
with knowledge of the curing of any such default or the elimination of the act
or condition preventing any such payment unless and until the Trustee shall have
received an Officers' Certificate to such effect.
(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
-80-
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 1210. Reliance on Judicial Order or Certificate of Liquidating
--------------------------------------------------------
Agent.
-----
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee and the Holders of the Securities shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of 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, provided that the foregoing shall apply only if such court has
been fully apprised of the provisions of this Article.
Section 1211. Rights of Trustee as a Holder of Senior Indebtedness;
-----------------------------------------------------
Preservation of Trustee's Rights.
--------------------------------
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 606.
Section 1212. 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 under this Indenture, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such
-81-
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1211 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 1213. No Suspension of Remedies.
-------------------------
Nothing contained in this Article shall limit the right of the Trustee or
the Holders of Securities to take any action to accelerate the maturity of the
Securities pursuant to Article Five and as set forth in this Indenture or to
pursue any rights or remedies hereunder or under applicable law, subject to the
rights, if any, under this Article of the holders, from time to time, of Senior
Indebtedness to receive the cash, property or securities receivable upon the
exercise of such rights or remedies.
Section 1214. 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 and the Trustee shall not
be liable to any holder of Senior Indebtedness if it shall mistakenly in the
absence of gross negligence or willful misconduct pay over or deliver to
Holders, the Company or any other Person moneys or assets to which any holder of
Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
Section 1301. Satisfaction and Discharge of Indenture.
---------------------------------------
Unless otherwise provided pursuant to Section 301, this Indenture shall
cease to be of further effect (except as to surviving rights of registration of
transfer or exchange of Securities herein, rights to payment, rights to
conversion, and rights to replacement of stolen, lost or mutilated Securities
expressly provided for) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(1) all the Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 308 or (ii) all
Securities for whose payment United States dollars
-82-
have 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
(2) all such Securities not theretofore delivered to the Trustee for
cancellation (x) have become due and payable, (y) will become due and
payable at their Stated Maturity within one year, or (z) are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, and the Company or any Guarantor, in
the case of (2)(x),(y) or (z) above, has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose an
amount in United States dollars sufficient to pay and discharge the entire
Indebtedness on the Securities not theretofore delivered to the Trustee for
cancellation, for the principal of, premium, if any, and accrued interest
at such Stated Maturity or Redemption Date;
(b) the Company or any Guarantor has paid or caused to be paid all other
sums payable hereunder by the Company or any Guarantor; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel stating that (i) all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with and (ii) such satisfaction and discharge will not result in a
breach or violation of or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company or any Guarantor is
a party or by which the Company or any Guarantor is bound.
Opinions of Counsel required to be delivered under this Section may have
qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of the Company or
government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including that various
financial covenants have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if United
States dollars shall have been deposited with the Trustee pursuant to subclause
(2) of Subsection (a) of this Section, the obligations of the Trustee under
Section 1302 and the last paragraph of Section 1003 shall survive.
Section 1302. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all United
States dollars deposited with the Trustee pursuant to Section 1301 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either
-83-
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 of, premium, if any, and interest on the Securities for whose
payment such United States dollars have been deposited with the Trustee.
ARTICLE FOURTEEN
GUARANTEE
If, pursuant to Section 301, the Securities of any series are to be
guaranteed by any Guarantor, the following provisions, unless otherwise provided
pursuant to Section 301, shall apply. In this Article Fourteen, unless the
context otherwise requires, all references to Securities refers to the series of
Securities guaranteed by the Guarantors and all references to Indenture
Obligations refer to Indenture Obligations in respect of the series of
Securities so guaranteed. If no series of Securities are guaranteed, this
Article Fourteen and all references to Guarantees and Guarantors in this
Indenture shall have no force and effect.
Section 1401. Guarantors' Guarantee.
---------------------
For value received, each of the Guarantors, in accordance with this Article
Fourteen, hereby absolutely, unconditionally and irrevocably guarantees, jointly
and severally, to the Trustee and the Holders, as if the Guarantors were the
principal debtor, the punctual payment and performance when due of all Indenture
Obligations (which for purposes of this Guarantee shall also be deemed to
include all commissions, fees, charges, costs and other expenses (including
reasonable legal fees and disbursements of one counsel in connection with any
one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances) arising out of or
incurred by the Trustee or the Holders in connection with the enforcement of
this Guarantee).
Section 1402. Continuing Guarantee; No Right of Set-Off; Independent
------------------------------------------------------
Obligation.
----------
(a) This Guarantee shall be a continuing guarantee of the payment and
performance of all Indenture Obligations and shall remain in full force and
effect until the payment in full of all of the Indenture Obligations and shall
apply to and secure any ultimate balance due or remaining unpaid to the Trustee
or the Holders; and this Guarantee shall not be considered as wholly or
partially satisfied by the payment or liquidation at any time or from time to
time of any sum of money for the time being due or remaining unpaid to the
Trustee or the Holders. Each Guarantor, jointly and severally, covenants and
agrees to comply with all obligations, covenants, agreements and provisions
applicable to it in this Indenture including those set forth in Article Eight.
Without limiting the generality of the foregoing, each of the Guarantors'
liability shall extend to all amounts which constitute part of the Indenture
Obligations and would be owed by the Company under this Indenture and the
Securities but for the fact that they are unenforceable,
-84-
reduced, limited, impaired, suspended or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Company.
(b) Each Guarantor, jointly and severally, hereby guarantees that the
Indenture Obligations will be paid to the Trustee without set-off or
counterclaim or other reduction whatsoever (whether for taxes, withholding or
otherwise) in lawful currency of the United States of America.
(c) Each Guarantor, jointly and severally, guarantees that the Indenture
Obligations shall be paid strictly in accordance with their terms regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the holders of the Securities.
(d) Each Guarantor's liability under this Guarantee to pay or perform or
cause the performance of the Indenture Obligations shall arise forthwith after
demand for payment or performance by the Trustee has been given to the
Guarantors in the manner prescribed in Section 106 hereof.
(e) Except as provided herein, the provisions of this Article Fourteen
cover all agreements between the parties hereto relative to this Guarantee and
none of the parties shall be bound by any representation, warranty or promise
made by any Person relative thereto which is not embodied herein; and it is
specifically acknowledged and agreed that this Guarantee has been delivered by
each Guarantor free of any conditions whatsoever and that no representations,
warranties or promises have been made to any Guarantor affecting its liabilities
hereunder, and that the Trustee shall not be bound by any representations,
warranties or promises now or at any time hereafter made by the Company to any
Guarantor.
Section 1403. Guarantee Absolute.
------------------
The obligations of the Guarantors hereunder are independent of the
obligations of the Company under the Securities and this Indenture and a
separate action or actions may be brought and prosecuted against any Guarantor
whether or not an action or proceeding is brought against the Company and
whether or not the Company is joined in any such action or proceeding. The
liability of the Guarantors hereunder is irrevocable, absolute and unconditional
and (to the extent permitted by law) the liability and obligations of the
Guarantors hereunder shall not be released, discharged, mitigated, waived,
impaired or affected in whole or in part by:
(a) any defect or lack of validity or enforceability in respect of any
Indebtedness or other obligation of the Company or any other Person under this
Indenture or the Securities, or any agreement or instrument relating to any of
the foregoing;
-85-
(b) any grants of time, renewals, extensions, indulgences, releases,
discharges or modifications which the Trustee or the Holders may extend to, or
make with, the Company, any Guarantor or any other Person, or any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Indenture Obligations, or any other amendment or waiver of, or any consent to or
departure from, this Indenture or the Securities, including any increase or
decrease in the Indenture Obligations;
(c) the taking of security from the Company, any Guarantor or any other
Person, and the release, discharge or alteration of, or other dealing with, such
security;
(d) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of the
Indenture Obligations and the obligations of any Guarantor hereunder;
(e) the abstention from taking security from the Company, any Guarantor or
any other Person or from perfecting, continuing to keep perfected or taking
advantage of any security;
(f) any loss, diminution of value or lack of enforceability of any security
received from the Company, any Guarantor or any other Person, and including any
other guarantees received by the Trustee;
(g) any other dealings with the Company, any Guarantor or any other Person,
or with any security;
(h) the Trustee's or the Holders' acceptance of compositions from the
Company or any Guarantor;
(i) the application by the Holders or the Trustee of all monies at any time
and from time to time received from the Company, any Guarantor or any other
Person on account of any indebtedness and liabilities owing by the Company or
any Guarantor to the Trustee or the Holders, in such manner as the Trustee or
the Holders deems best and the changing of such application in whole or in part
and at any time or from time to time, or any manner of application of
collateral, if any, or proceeds thereof, to all or any of the Indenture
Obligations, or the manner of sale of any such collateral;
(j) the release or discharge of the Company or any Guarantor of the
Securities or of any Person liable directly as surety or otherwise by operation
of law or otherwise for the Securities, other than an express release in writing
given by the Trustee, on behalf of the Holders, of the liability and obligations
of any Guarantor hereunder;
-86-
(k) any change in the name, business, capital structure or governing
instrument of the Company or any Guarantor or any refinancing or restructuring
of any of the Indenture Obligations;
(l) the sale of the Company's or any Guarantor's business or any part
thereof;
(m) subject to Section 1414, any merger or consolidation, arrangement or
reorganization of the Company, any Guarantor, any Person resulting from the
merger or consolidation of the Company or any Guarantor with any other Person or
any other successor to such Person or merged or consolidated Person or any other
change in the corporate existence, structure or ownership of the Company or any
Guarantor;
(n) the insolvency, bankruptcy, liquidation, winding-up, dissolution,
receivership or distribution of the assets of the Company or its assets or any
resulting discharge of any obligations of the Company (whether voluntary or
involuntary) or of any Guarantor or the loss of corporate existence;
(o) subject to Section 1414, any arrangement or plan of reorganization
affecting the Company or any Guarantor;
(p) any other circumstance (including any statute of limitations) that
might otherwise constitute a defense available to, or discharge of, the Company
or any Guarantor; or
(q) any modification, compromise, settlement or release by the Trustee, or
by operation of law or otherwise, of the Indenture Obligations or the liability
of the Company or any other obligor under the Securities, in whole or in part,
and any refusal of payment by the Trustee, in whole or in part, from any other
obligor or other guarantor in connection with any of the Indenture Obligations,
whether or not with notice to, or further assent by, or any reservation of
rights against, each of the Guarantors.
Section 1404. Right to Demand Full Performance.
--------------------------------
In the event of any demand for payment or performance by the Trustee from
any Guarantor hereunder, the Trustee or the Holders shall have the right to
demand its full claim and to receive all dividends or other payments in respect
thereof until the Indenture Obligations have been paid in full, and the
Guarantors shall continue to be jointly and severally liable hereunder for any
balance which may be owing to the Trustee or the Holders by the Company under
this Indenture and the Securities. The retention by the Trustee or the Holders
of any security, prior to the realization by the Trustee or the Holders of its
rights to such security upon foreclosure thereon, shall not, as between the
Trustee and any Guarantor, be considered as a purchase of such security, or as
payment, satisfaction or reduction of the Indenture Obligations due to the
Trustee or the Holders by the Company or any part thereof.
-87-
Section 1405. Waivers.
-------
(a) Each Guarantor hereby expressly waives (to the extent permitted by
law) notice of the acceptance of this Guarantee and notice of the existence,
renewal, extension or the non-performance, non-payment, or non-observance on the
part of the Company of any of the terms, covenants, conditions and provisions of
this Indenture or the Securities or any other notice whatsoever to or upon the
Company or such Guarantor with respect to the Indenture Obligations. Each
Guarantor hereby acknowledges communication to it of the terms of this Indenture
and the Securities and all of the provisions therein contained and consents to
and approves the same. Each Guarantor hereby expressly waives (to the extent
permitted by law) diligence, presentment, protest and demand for payment.
(b) Without prejudice to any of the rights or recourses which the Trustee
or the Holders may have against the Company, each Guarantor hereby expressly
waives (to the extent permitted by law) any right to require the Trustee or the
Holders to:
(i) initiate or exhaust any rights, remedies or recourse against the
Company, any Guarantor or any other Person;
(ii) value, realize upon, or dispose of any security of the Company or
any other Person held by the Trustee or the Holders; or
(iii) initiate or exhaust any other remedy which the Trustee or the
Holders may have in law or equity; before requiring or becoming entitled to
demand payment from such Guarantor under this Guarantee.
(c) With respect to this Section 1405, to the extent applicable to any
Guarantor, each Guarantor expressly waives application of Sections 26-7
through 26-9 of the North Carolina General Statutes.
Section 1406. The Guarantors Remain Obligated in Event the Company Is No
----------------------------------------------------------
Longer Obligated to Discharge Indenture Obligations.
---------------------------------------------------
It is the express intention of the Trustee and the Guarantors that if for
any reason the Company has no legal existence, is or becomes under no legal
obligation to discharge the Indenture Obligations owing to the Trustee or the
Holders by the Company or if any of the Indenture Obligations owing by the
Company to the Trustee or the Holders becomes irrecoverable from the Company by
operation of law or for any reason whatsoever, this Guarantee and the covenants,
agreements and obligations of the Guarantors contained in this Article Fourteen
shall nevertheless be binding upon the Guarantors, as principal debtor, until
such time as all such Indenture Obligations have been paid in full to the
Trustee and all such Indenture Obligations owing to the Trustee or the Holders
by the Company have been
-88-
discharged, or such earlier time as Section 402 shall apply to the Securities
and the Guarantors shall be responsible for the payment thereof to the Trustee
or the Holders upon demand.
Section 1407. Fraudulent Conveyance; Contribution Subrogation.
-----------------------------------------------
(a) Each Guarantor that is a Subsidiary of the Company, and by its
acceptance hereof each Holder, hereby confirms that it is the intention of all
such parties that the Guarantee by such Guarantor pursuant to its Guarantee not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law. To effectuate the foregoing intention, the
Holders and such Guarantor hereby irrevocably agree that the obligations of such
Guarantor under its Guarantee shall be limited to the maximum amount which,
after giving effect to all other contingent and fixed liabilities of such
Guarantor, and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Indenture, will result in the obligations of such Guarantor under its
Guarantee not constituting such fraudulent transfer or conveyance.
(b) Each Guarantor that makes a payment or distribution under its Guarantee
shall be entitled to a contribution from each other Guarantor, if any, in a pro
rata amount based on the net assets of each Guarantor, determined in accordance
with GAAP.
(c) Each Guarantor hereby waives all rights of subrogation or contribution,
whether arising by contract or operation of law (including, without limitation,
any such right arising under federal bankruptcy law) or otherwise by reason of
any payment by it pursuant to the provisions of this Article Fourteen.
Section 1408. Guarantee Is in Addition to Other Security.
------------------------------------------
This Guarantee shall be in addition to and not in substitution for any
other guarantees or other security which the Trustee may now or hereafter hold
in respect of the Indenture Obligations owing to the Trustee or the Holders by
the Company and (except as may be required by law) the Trustee shall be under no
obligation to marshal in favor of each of the Guarantors any other guarantees or
other security or any moneys or other assets which the Trustee may be entitled
to receive or upon which the Trustee or the Holders may have a claim.
Section 1409. Release of Security Interests.
-----------------------------
Without limiting the generality of the foregoing and except as otherwise
provided in this Indenture, each Guarantor hereby consents and agrees, to the
fullest extent permitted by applicable law, that the rights of the Trustee
hereunder, and the liability of the Guarantors hereunder, shall not be affected
by any and all releases for any purpose of any collateral, if any,
-89-
from the Liens and security interests created by any collateral document and
that this Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Indenture Obligations is
rescinded or must otherwise be returned by the Trustee upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, all as though such
payment had not been made.
Section 1410. No Bar to Further Actions.
-------------------------
Except as provided by law, no action or proceeding brought or instituted
under Article Fourteen and this Guarantee and no recovery or judgment in
pursuance thereof shall be a bar or defense to any further action or proceeding
which may be brought under Article Fourteen and this Guarantee by reason of any
further default or defaults under Article Fourteen and this Guarantee or in the
payment of any of the Indenture Obligations owing by the Company.
Section 1411. Failure to Exercise Rights Shall Not Operate as a Waiver; No
------------------------------------------------------------
Suspension of Remedies.
----------------------
(a) No failure to exercise and no delay in exercising, on the part of the
Trustee or the Holders, any right, power, privilege or remedy under this Article
Fourteen and this Guarantee shall operate as a waiver thereof, nor shall any
single or partial exercise of any rights, power, privilege or remedy preclude
any other or further exercise thereof, or the exercise of any other rights,
powers, privileges or remedies. The rights and remedies herein provided for are
cumulative and not exclusive of any rights or remedies provided in law or
equity.
(b) Nothing contained in this Article Fourteen shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Securities pursuant to Article Five or to pursue any rights or remedies
hereunder or under applicable law.
Section 1412. Trustee's Duties; Notice to Trustee.
-----------------------------------
(a) Any provision in this Article Fourteen or elsewhere in this Indenture
allowing the Trustee to request any information or to take any action authorized
by, or on behalf of any Guarantor, shall be permissive and shall not be
obligatory on the Trustee except as the Holders may direct in accordance with
the provisions of this Indenture or where the failure of the Trustee to request
any such information or to take any such action arises from the Trustee's
negligence, bad faith or willful misconduct.
(b) The Trustee shall not be required to inquire into the existence, powers
or capacities of the Company, any Guarantor or the officers, Trustees or agents
acting or purporting to act on their respective behalf.
Section 1413. Successors and Assigns.
----------------------
-90-
All terms, agreements and conditions of this Article Fourteen shall extend
to and be binding upon each Guarantor and its successors and permitted assigns
and shall enure to the benefit of and may be enforced by the Trustee and its
successors and assigns; provided, however, that the Guarantors may not assign
any of their rights or obligations hereunder other than in accordance with
Article Eight.
Section 1414. Release of Guarantee.
--------------------
Concurrently with the payment in full of all of the Indenture Obligations,
the Guarantors shall be released from and relieved of their obligations under
this Article Fourteen. Upon the delivery by the Company to the Trustee of an
Officer's Certificate and, if requested by the Trustee, an Opinion of Counsel to
the effect that the transaction giving rise to the release of this Guarantee was
made by the Company in accordance with the provisions of this Indenture and the
Securities, the Trustee shall execute any documents reasonably required in order
to evidence the release of the Guarantors from their obligations under this
Guarantee. If any of the Indenture Obligations are revived and reinstated after
the termination of this Guarantee, then all of the obligations of the Guarantors
under this Guarantee shall be revived and reinstated as if this Guarantee had
not been terminated until such time as the Indenture Obligations are paid in
full, and each Guarantor shall enter into an amendment to this Guarantee,
reasonably satisfactory to the Trustee, evidencing such revival and
reinstatement.
This Guarantee shall terminate with respect to each Guarantor and shall be
automatically and unconditionally released and discharged under any
circumstances set forth pursuant to Section 301.
Section 1415. Execution of Guarantee.
----------------------
To evidence the Guarantee, each Guarantor hereby agrees to execute the
guarantee substantially in the form set forth in Section 204, to be endorsed on
each Security authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of each Guarantor by its General Partner (by an
authorized officer), Chairman of the Board, its President, or one of its Vice
Presidents and 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.
Section 1416. Guarantee Subordinate to Guarantor Senior Indebtedness.
------------------------------------------------------
Each Guarantor covenants and agrees, and each Holder of a Guarantee, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Guarantees is hereby made subordinate and subject in right of payment as
provided in this Article to the prior payment in full in cash or Cash
Equivalents or in any other form as acceptable to the holders of Guarantor
Senior Indebtedness of all Guarantor Senior Indebtedness; provided, however,
that the Indebtedness represented by this
-91-
Guarantee in all respects shall rank equally with, or prior to, all existing and
future Indebtedness of such Guarantor that is expressly subordinated to such
Guarantor's Guarantor Senior Indebtedness.
This Article Fourteen shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold
Guarantor Senior Indebtedness; and such provisions are made for the benefit of
the holders of Guarantor Senior Indebtedness; and such holders are made obligees
hereunder and they or each of them may enforce such provisions.
With respect to the relative rights of Holders and holders of Senior
Indebtedness and Guarantor Senior Indebtedness and for the purpose of Section
1407(a), each Holder of a Security by his acceptance thereof acknowledges that
all Senior Indebtedness and any guarantee by a Guarantor of such Senior
Indebtedness shall be deemed to have been incurred prior to the incurrence by
such Guarantor of its liability under its Guarantee.
Section 1417. Payment Over of Proceeds Upon Dissolution of the Guarantor,
-----------------------------------------------------------
etc.
---
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to any Guarantor or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of any
Guarantor, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets or liabilities of any Guarantor, then and in any
such event:
(1) the holders of Guarantor Senior Indebtedness shall be entitled to
receive payment in full in cash or Cash Equivalents or in any other form as
acceptable to the holders of Guarantor Senior Indebtedness of all amounts due on
or in respect of all Guarantor Senior Indebtedness, before the Holders of the
Securities are entitled to receive any payment or distribution of any kind or
character (excluding Permitted Guarantor Junior Securities) on account of the
Guarantee of such Guarantor; and
(2) any payment or distribution of assets of any Guarantor of any kind or
character, whether in cash, property or securities (excluding Permitted
Guarantor Junior Securities), by set-off or otherwise, to which the Holders or
the Trustee would be entitled but for the provisions of this Article shall be
paid by the liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Guarantor Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Guarantor Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Guarantor Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full in cash or
Cash
-92-
Equivalents or in any other form as acceptable to the holders of Guarantor
Senior Indebtedness of all Guarantor Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of such
Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of any Guarantor of any kind or character,
whether in cash, property or securities, in respect of the Guarantee of such
Guarantor before all Guarantor Senior indebtedness is paid in full, then and in
such event such payment or distribution (excluding Permitted Guarantor Junior
Securities) shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of such Guarantor for
application to the payment of all Guarantor Senior Indebtedness remaining
unpaid, to the extent necessary to pay all Guarantor Senior Indebtedness in full
in cash or Cash Equivalents or in any other form as acceptable to the holders of
Guarantor Senior Indebtedness after giving effect to any concurrent payment or
distribution to or for the holders of Guarantor Senior Indebtedness.
The consolidation of any Guarantor with, or the merger of any Guarantor
with or into, another Person or the liquidation or dissolution of any Guarantor
following the sale, assignment, conveyance, transfer, lease or other disposal of
all or substantially all of such Guarantor's properties or assets to another
Person upon the terms and conditions set forth in Article Eight shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshaling of assets and liabilities of such
Guarantor for the purposes of this Section if the Person formed by such
consolidation or the surviving entity of such merger or the Person which
acquires by sale, assignment, conveyance, transfer, lease or other disposal of
all or substantially all of such Guarantor's properties and assets, as the case
may be, shall, as a part of such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposal comply with the conditions set
forth in Article Eight.
Section 1418. Default on Guarantor Senior Indebtedness.
----------------------------------------
(a) Upon the maturity of any Guarantor Senior Indebtedness by lapse of
time, acceleration or otherwise, all principal thereof and interest thereon and
other amounts due in connection therewith shall first be paid in full or such
payment duly provided for before any payment is made by any of the Guarantors or
any Person acting on behalf of any of the Guarantors in respect of the Guarantee
of such Guarantor.
(b) No payment (excluding payments in the form of Permitted Guarantor
Junior Securities) shall be made by any Guarantor in respect of its Guarantee
during the period in which Section 1417 shall be applicable, during any
suspension of payments in effect under Section 1203(a) of this Indenture or
during any Payment Blockage Period in effect under Section 1203(b) of this
Indenture.
-93-
(c) In the event that, notwithstanding the foregoing, any Guarantor shall
make any payment to the Trustee or the Holder of its Guarantee prohibited by the
foregoing provisions of this Section, then and in such event such payment shall
be paid over and delivered forthwith to the representatives of Guarantor Senior
Indebtedness or as a court of competent jurisdiction shall direct.
Section 1419. Payment Permitted by Each of the Guarantors if No Default.
---------------------------------------------------------
Nothing contained in this Article, elsewhere in this Indenture or in any of
the Securities shall prevent any Guarantor, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of such Guarantor referred to in Section 1417 or under the
conditions described in Section 1418, from making payments at any time of
principal of, premium, if any, or interest on the Securities.
Section 1420. Subrogation to Rights of Holders of Guarantor Senior
----------------------------------------------------
Indebtedness.
------------
Subject to the payment in full of all Guarantor Senior Indebtedness in cash
or Cash Equivalents or in any other form acceptable to the holders of Guarantor
Senior Indebtedness, the Holders of the Securities shall be subrogated to the
rights of the holders of such Guarantor Senior Indebtedness to receive payments
and distributions of cash, property and securities applicable to the Guarantor
Senior Indebtedness until the principal of, premium, if any, and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of Guarantor Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Guarantor
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as among
any Guarantor, its creditors other than holders of Guarantor Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by such Guarantor to or on account of the Guarantor Senior
Indebtedness.
Section 1421. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of Sections 1416 through 1429 of this Indenture are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Guarantor Senior Indebtedness on
the other hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as among any
Guarantor, its creditors other than holders of Guarantor Senior Indebtedness and
the Holders of the Securities, the obligation of such Guarantor, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against each of the Guarantors of the Holders of the
Securities and creditors of
-94-
each of the Guarantors other than the holders of Guarantor Senior Indebtedness;
or (c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Guarantor Senior Indebtedness (1) in any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of the Guarantors referred to in
Section 1417, to receive, pursuant to and in accordance with such Section, cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder, or (2) under the conditions specified in Section 1418, to prevent any
payment prohibited by such Section or enforce their rights pursuant to Section
1418(c).
Section 1422. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of any
Guarantor whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
indebtedness of any Guarantor owing to such Holder in the form required in such
proceedings and the causing of such claim to be approved.
Section 1423. No Waiver of Subordination Provisions.
-------------------------------------
(a) No right of any present or future holder of any Guarantor 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
any Guarantor or by any act or failure to act by any such holder, or by any non-
compliance by any Guarantor with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of Subsection (a) of this Section and
notwithstanding any other provision contained herein, the holders of Guarantor
Senior Indebtedness may, at any time and from time to time, without the consent
of or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Guarantor Senior
Indebtedness, do any one or more of the following: (1) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter,
Guarantor Senior Indebtedness or any instrument evidencing the same or any
agreement under which Guarantor Senior Indebtedness is outstanding; (2) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Guarantor Senior Indebtedness; (3) release any Person liable
in any manner for the collection or payment of Guarantor Senior Indebtedness;
and (4)
-95-
exercise or refrain from exercising any rights against any of the Guarantors and
any other Person; provided, however, that in no event shall any such actions
limit the right of the Holders of the Securities to take any action to
accelerate the maturity of the Securities in accordance with the provisions set
forth in Article Five or to pursue any rights or remedies under this Indenture
or under applicable laws if the taking of such action does not otherwise violate
the terms of this Article.
Section 1424. Notice to Trustee by Each of the Guarantors.
-------------------------------------------
(a) Each Guarantor shall give prompt written notice to the Trustee of any
fact known to such Guarantor which would prohibit the making of any payment to
or by the Trustee in respect of the Guarantee. Notwithstanding the provisions of
this Article or any provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from any
Guarantor or a holder of Guarantor Senior Indebtedness or any trustee, fiduciary
or agent therefor; and, prior to the receipt of any such written notice, the
Trustee shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section prior to the date upon which by the terms hereof
any money may become payable for any purpose (including, without limitation, the
payment of the principal of, premium, if any, or interest on any Security or any
other Indenture Obligations), then, anything herein contained to the contrary
notwithstanding but without limiting the rights and remedies of the holders of
Guarantor Senior Indebtedness or any trustee, fiduciary or agent thereof, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it after such
date; nor shall the Trustee be charged with knowledge of the curing of any such
default or the elimination of the act or condition preventing any such payment
unless and until the Trustee shall have received an Officers' Certificate to
such effect.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee and each Guarantor by a Person representing
himself to be a representative of one or more holders of Designated Guarantor
Senior Indebtedness (a "Guarantor Senior Representative") or a holder of
Guarantor Senior Indebtedness (or a trustee, fiduciary or agent therefor) to
establish that such notice has been given by a Guarantor Senior Representative
or a holder of Guarantor 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 Guarantor 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 Guarantor Senior
Indebtedness held by such Person, the extent to which such
-96-
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 1425. Reliance on Judicial Order or Certificate of Liquidating
--------------------------------------------------------
Agent.
-----
Upon any payment or distribution of assets of any Guarantor referred to in
this Article, the Trustee and the Holders of the Securities shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Guarantor Senior Indebtedness
and other indebtedness of such Guarantor, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article, provided that the foregoing shall apply only if such
court has been fully apprised of the provisions of this Article.
Section 1426. Rights of Trustee as a Holder of Guarantor Senior
-------------------------------------------------
Indebtedness; Preservation of Trustee's Rights.
----------------------------------------------
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Guarantor Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Guarantor Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article shall apply
to claims of, or payments to, the Trustee under or pursuant to Section 606.
Section 1427. 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 under this Indenture, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1426 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 1428. No Suspension of Remedies.
-------------------------
-97-
Nothing contained in this Article shall limit the right of the Trustee or
the Holders of Securities to take any action to accelerate the maturity of the
Securities pursuant to the provisions described under Article Five and as set
forth in this Indenture or to pursue any rights or remedies hereunder or under
applicable law, subject to the rights, if any, under this Article of the
holders, from time to time, of Guarantor Senior Indebtedness to receive the
cash, property or securities receivable upon the exercise of such rights or
remedies.
Section 1429. Trustee's Relation to Guarantor Senior Indebtedness.
---------------------------------------------------
With respect to the holders of Guarantor 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 Guarantor 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 Guarantor Senior Indebtedness and
the Trustee shall not be liable to any holder of Guarantor Senior Indebtedness
if it shall mistakenly in the absence of gross negligence or willful misconduct
pay over or deliver to Holders, the Company or any other Person moneys or assets
to which any holder of Guarantor Senior Indebtedness shall be entitled by virtue
of this Article or otherwise.
If an officer whose signature is on this Indenture no longer holds that
office at the time the Trustee authenticates a Security on which a Guarantee is
endorsed, such Guarantee shall be valid nevertheless.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
CAPITAL AUTOMOTIVE REIT, as Issuer
Attest By:
_______________________ _______________________
Name: Name:
Title: Title:
Attest [Name of Trustee], as Trustee
By:
-98-
_______________________ _______________________
Name: Name:
Title: Title:
-99-
STATE OF _________________)
) ss.:
COUNTY OF ________________)
On the ___ day of _____________, ____, before me personally came
___________, to me known, who, being by me duly sworn, did depose and say that
he resides at __________________________________________________; that he is
__________ of Capital Automotive REIT, a real estate investment trust described
in and which executed the foregoing instrument; and that he signed his name
thereto pursuant to authority of the Boards of Trustees of such company.
(NOTARIAL SEAL)
___________________________
-100-
STATE OF _______________________)
) ss.:
COUNTY OF ______________________)
On the ____ day of _____, 1998, before me personally came ______, to me
known, who, being by me duly sworn, did depose and say that he resides at
__________________________________________; that he is an authorized officer of
[Name of Trustee], one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of such corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
pursuant to authority of the Board of Trustees of such corporation; and that he
signed his name thereto pursuant to like authority.
(NOTARIAL SEAL)
___________________________
-101-