EXHIBIT 4.5
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STANDARD INDENTURE TERMS
WITH RESPECT TO
ALLSTATE LIFE GLOBAL FUNDING TRUSTS
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED........................................................1
SECTION 1.2 INTERPRETATION...............................................................9
ARTICLE 2
THE NOTES
SECTION 2.1 AMOUNT UNLIMITED............................................................10
SECTION 2.2 STATUS OF NOTES.............................................................10
SECTION 2.3 FORMS GENERALLY.............................................................10
SECTION 2.4 CURRENCY; DENOMINATIONS.....................................................11
SECTION 2.5 EXECUTION, AUTHENTICATION, DELIVERY AND DATE................................12
SECTION 2.6 REGISTRATION, TRANSFER AND EXCHANGE.........................................12
SECTION 2.7 MUTILATED, DESTROYED, LOST OR STOLEN NOTE CERTIFICATES......................14
SECTION 2.8 INTEREST RECORD DATES.......................................................15
SECTION 2.9 CANCELLATION................................................................16
SECTION 2.10 GLOBAL SECURITIES...........................................................16
SECTION 2.11 WITHHOLDING TAX.............................................................17
SECTION 2.12 TAX TREATMENT...............................................................18
ARTICLE 3
REDEMPTION, REPAYMENT AND REPURCHASE OF NOTES; SINKING FUNDS
SECTION 3.1 REDEMPTION OF NOTES.........................................................18
SECTION 3.2 REPAYMENT AT THE OPTION OF THE HOLDER.......................................21
SECTION 3.3 REPURCHASE OF NOTES.........................................................22
SECTION 3.4 SINKING FUNDS...............................................................23
ARTICLE 4
PAYMENTS; PAYING AGENTS AND CALCULATION AGENT; COVENANTS
SECTION 4.1 PAYMENT OF PRINCIPAL AND INTEREST...........................................23
SECTION 4.2 OFFICES FOR PAYMENTS, ETC...................................................26
SECTION 4.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF INDENTURE TRUSTEE................26
SECTION 4.4 PAYING AGENTS...............................................................26
SECTION 4.5 CALCULATION AGENT...........................................................30
SECTION 4.6 CERTIFICATE TO INDENTURE TRUSTEE............................................32
SECTION 4.7 NEGATIVE COVENANTS..........................................................32
SECTION 4.8 ADDITIONAL AMOUNTS..........................................................35
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ARTICLE 5
REMEDIES OF THE INDENTURE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY; WAIVER OF DEFAULT.......36
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY INDENTURE TRUSTEE; INDENTURE TRUSTEE MAY
PROVE DEBT..................................................................39
SECTION 5.3 APPLICATION OF PROCEEDS.....................................................41
SECTION 5.4 SUITS FOR ENFORCEMENT.......................................................42
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS.........................43
SECTION 5.6 LIMITATIONS ON SUITS BY HOLDERS.............................................43
SECTION 5.7 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT.....44
SECTION 5.8 CONTROL BY THE HOLDERS......................................................44
SECTION 5.9 WAIVER OF PAST DEFAULTS.....................................................45
ARTICLE 6
THE INDENTURE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.........................................45
SECTION 6.2 CERTAIN RIGHTS OF THE INDENTURE TRUSTEE.....................................46
SECTION 6.3 NOT RESPONSIBLE FOR RECITALS, VALIDITY OF THE NOTES OR APPLICATION OF
THE PROCEEDS................................................................48
SECTION 6.4 MAY HOLD NOTES; COLLECTIONS, ETC............................................48
SECTION 6.5 FUNDS HELD BY INDENTURE TRUSTEE.............................................48
SECTION 6.6 COMPENSATION; REIMBURSEMENT; INDEMNIFICATION................................48
SECTION 6.7 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.....................................49
SECTION 6.8 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE...................50
SECTION 6.9 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE..............................51
SECTION 6.10 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF
INDENTURE TRUSTEE...........................................................52
SECTION 6.11 LIMITATIONS ON RIGHTS OF INDENTURE TRUSTEE AS CREDITOR......................52
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY INDENTURE TRUSTEE AND TRUST
SECTION 7.1 TRUST TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF HOLDERS...........52
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.......................53
SECTION 7.3 REPORTS BY INDENTURE TRUSTEE................................................53
SECTION 7.4 REPORTS BY TRUST............................................................54
SECTION 7.5 COMPLIANCE CERTIFICATES AND AUDITOR'S REPORTS...............................55
ARTICLE 8
CONCERNING EACH HOLDER
SECTION 8.1 EVIDENCE OF ACTION TAKEN BY A HOLDER........................................55
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SECTION 8.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF NOTES...................56
SECTION 8.3 VOTING RECORD DATE..........................................................56
SECTION 8.4 PERSONS DEEMED TO BE OWNERS.................................................56
SECTION 8.5 NOTES OWNED BY TRUST DEEMED NOT OUTSTANDING.................................56
SECTION 8.6 RIGHT OF REVOCATION OF ACTION TAKEN; BINDING EFFECT OF ACTIONS BY
HOLDERS.....................................................................57
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..........................57
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.............................59
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL INDENTURE.......60
SECTION 9.4 DOCUMENTS TO BE GIVEN TO INDENTURE TRUSTEE..................................60
SECTION 9.5 NOTATION ON NOTE CERTIFICATES IN RESPECT OF SUPPLEMENTAL INDENTURES.........60
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 TRUST MAY MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY UNDER CERTAIN
CIRCUMSTANCES...............................................................60
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS
SECTION 11.1 SATISFACTION AND DISCHARGE OF INDENTURE.....................................61
SECTION 11.2 APPLICATION BY INDENTURE TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF NOTES....62
SECTION 11.3 REPAYMENT OF FUNDS HELD BY PAYING AGENT.....................................62
SECTION 11.4 RETURN OF FUNDS HELD BY INDENTURE TRUSTEE AND PAYING AGENT..................62
ARTICLE 12
MEETINGS OF HOLDERS OF NOTES
SECTION 12.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED...................................62
SECTION 12.2 CALL, NOTICE AND PLACE OF MEETINGS..........................................62
SECTION 12.3 PERSONS ENTITLED TO VOTE AT MEETINGS........................................63
SECTION 12.4 QUORUM; ACTION..............................................................63
SECTION 12.5 DETERMINATION OF VOTING RIGHTS; CONDUCT OF ADJOURNMENT OF MEETINGS..........64
SECTION 12.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.............................65
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1 NO RECOURSE.................................................................65
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SECTION 13.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS.........66
SECTION 13.3 SUCCESSORS AND ASSIGNS OF TRUST BOUND BY INDENTURE..........................66
SECTION 13.4 NOTICES AND DEMANDS ON TRUST, INDENTURE TRUSTEE AND ANY HOLDER..............66
SECTION 13.5 TRUST CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE
CONTAINED THEREIN...........................................................68
SECTION 13.6 GOVERNING LAW...............................................................69
SECTION 13.7 COUNTERPARTS................................................................70
SECTION 13.8 TRUST INDENTURE ACT TO CONTROL..............................................70
SECTION 13.9 JUDGMENT CURRENCY...........................................................70
ARTICLE 14
SECURITY INTEREST
SECTION 14.1 SECURITY INTEREST...........................................................71
SECTION 14.2 REPRESENTATIONS AND WARRANTIES..............................................71
SECTION 14.3 ADDITIONAL REPRESENTATIONS AND WARRANTIES...................................72
SECTION 14.4 FURTHER ASSURANCES; COVENANTS...............................................74
SECTION 14.5 GENERAL AUTHORITY...........................................................75
SECTION 14.6 REMEDIES UPON EVENT OF DEFAULT..............................................75
SECTION 14.7 LIMITATION ON DUTIES OF INDENTURE TRUSTEE WITH RESPECT TO COLLATERAL........76
SECTION 14.8 CONCERNING THE INDENTURE TRUSTEE............................................76
SECTION 14.9 TERMINATION OF SECURITY INTEREST............................................77
EXHIBIT A-1 FORM OF GLOBAL SECURITY FOR SECURED MEDIUM TERM NOTES PROGRAM
EXHIBIT A-2 FORM OF DEFINITIVE SECURITY FOR SECURED MEDIUM TERM NOTES PROGRAM
EXHIBIT A-3 FORM OF GLOBAL SECURITY FOR ALLSTATE LIFE(SM) CORENOTES(SM) PROGRAM
EXHIBIT A-4 FORM OF DEFINITIVE SECURITY FOR ALLSTATE LIFE(SM) CORENOTES(SM)
PROGRAM
EXHIBIT B FORM OF CERTIFICATE OF AUTHENTICATION
EXHIBIT C FORM OF ANNUAL STATEMENT OF COMPLIANCE
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RECONCILIATION TABLE
Trust Indenture Act Section Standard Indenture Terms Section
Section 310(a)(1)............................................................6.7
(a)(2)......................................................................6.7
(b).........................................................................6.8
Section 311(a)..............................................................6.11
Section 312(a) ..............................................................7.1
(b).........................................................................7.2
(c).........................................................................7.2
Section 313(a)............................................................7.3(b)
(b)......................................................................7.3(c)
(c)......................................................................7.3(d)
(d)......................................................................7.3(d)
Section 314(a) ..............................................................7.4
(b).......................................................................7.3(f)
(c)(1) ..................................................................13.5(a)
(c)(2) .................................................................13.5(a)
(e).....................................................................13.5(b)
(f).....................................................................13.5(a)
Section 315(c) ...........................................................6.1(b)
Section 316(a) (last sentence) ..............................................8.5
(a)(1)(A)...................................................................5.8
(a)(1)(B)...................................................................5.9
(b).........................................................................5.6
Section 317(a)(1).........................................................5.2(c)
(a)(2) ..................................................................5.2(c)
(b)......................................................................4.4(a)
Section 318(a) .............................................................13.8
(c) .......................................................................13.8
This reconciliation table shall not be deemed to be part of the Indenture
for any purpose.
Attention should also be directed to Section 318(c) of the Trust Indenture
Act, which provides that certain provisions of Sections 310 to and including 317
are a part of and govern every qualified indenture, whether or not physically
contained in the Indenture.
This document constitutes the
Standard Indenture Terms, which will
be incorporated by reference in, and form a part of, the Indenture (as
defined below), by and among the Trust (as defined below) and the Indenture
Trustee (as defined below).
These
Standard Indenture Terms shall be of no force and effect unless
and until incorporated by reference into, and then only to the extent not
modified by, such Indenture.
The following
Standard Indenture Terms shall govern the Notes subject
to contrary terms and provisions expressly adopted in the Indenture, any
Supplemental Indenture or the Notes, which contrary terms shall be controlling.
ARTICLE 1
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms shall have the
meanings specified in this Section for all purposes of the Indenture and the
Notes, unless otherwise expressly provided. All other terms used in the
Indenture which are defined in the Trust Indenture Act or which are by reference
therein defined in the Securities Act shall have the meanings (except as
otherwise expressly provided in the Indenture or unless the context otherwise
clearly requires) assigned to such terms in the Trust Indenture Act and in the
Securities Act as in force at the date of the Indenture as originally executed.
"ADDITIONAL AMOUNTS" means any additional amounts which may be required by
the Notes, under circumstances specified in a Note Certificate or Supplemental
Indenture, to be paid by the Trust in respect of certain taxes, assessments or
other governmental charges imposed on Holders specified therein and which are
owing to such Holders.
"ADMINISTRATIVE SERVICES AGREEMENT" means that certain administrative
services agreement included in Part B of the Series Instrument, by and between
the Trust and the Administrator, as the same may be amended, modified, restated,
supplemented and/or replaced from time to time.
"ADMINISTRATOR" means AMACAR Pacific Corp., a Delaware corporation, in its
capacity as the sole administrator of the Trust, and its permitted successors
and assigns.
"AFFILIATE" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that Person
and, in the case of an individual, any spouse or other member of that
individual's immediate family. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.
"AGENTS" has the meaning set forth in the Distribution Agreement.
"AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT" means that certain
Amended and Restated Administrative Services Agreement dated as of - , 2004,
between
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AMACAR Pacific Corp. and Global Funding, as the same may be amended, restated,
modified, supplemented or replaced from time to time.
"ANNUAL REDEMPTION PERCENTAGE REDUCTION" has the meaning specified in the
Note Certificate(s).
"BOOK-ENTRY NOTE" means a Note, the registered ownership of which is
represented by a Global Security.
"BUSINESS DAY" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New York;
PROVIDED, HOWEVER, that, with respect to Foreign Currency Notes, the day must
also not be a day on which commercial banks are authorized or required by law,
regulation or executive order to close in the Principal Financial Center of the
country issuing the Specified Currency (or, if the Specified Currency is Euro,
the day must also be a day on which the Target System is open).
"CALCULATION AGENT" means the Indenture Trustee in its capacity as
calculation agent or any other Person specified as calculation agent with
respect to any Notes in the Note Certificate(s).
"CERTIFICATED NOTE" means a Note represented by a Definitive Security.
"CLEARING CORPORATION" means DTC, or any other clearing system specified in
the Note Certificate(s) and their respective successors and "CLEARING
CORPORATIONS" means all of the foregoing.
"CLOSING INSTRUMENT" means the closing instrument of the Trust, pursuant to
which the Indenture is entered into, and certain other documents are executed,
in connection with the issuance of the Notes by the Trust.
"CODE" means the United States Internal Revenue Code of 1986, as amended,
including any successor statutes and any applicable rules, regulations, notices
or orders promulgated thereunder.
"COLLATERAL" means, with respect to the Notes, the right, title and
interest of the Trust in and to (i) each Funding Agreement held in the Trust,
(ii) all Proceeds in respect of each such Funding Agreement and (iii) all books
and records (including without limitation, computer programs, printouts and
other computer materials and files) of the Trust pertaining to the Funding
Agreement(s).
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of the 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.
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"COORDINATION AGREEMENT" means that certain Coordination Agreement included
in Part F of the Series Instrument, among
Allstate Life Insurance Company, the
Trust and the Indenture Trustee, as the same may be amended, modified or
supplemented from time to time.
"CORPORATE TRUST OFFICE" means the office of the Indenture Trustee at which
the Indenture shall, at any particular time, be administered, which office is,
at the date as of the Indenture located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, except that for the purposes of Section 4.2 it shall be ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other location as may be specified
in or pursuant to the Note Certificate(s).
"DEBT" of any Person means, at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (iv) all contingent
and non-contingent obligations of such Person to reimburse any bank or other
Person in respect of amounts paid under a letter of credit or similar
instrument, (v) all Debt secured by a Lien on any asset of such Person, whether
or not such Debt is otherwise an obligation of such Person, and (vi) all
Guarantees by such Person of Debt of another Person (each such Guarantee to
constitute Debt in an amount equal to the amount of such other Person's Debt
Guaranteed thereby).
"DEFAULTED INTEREST" has the meaning specified in Section 2.8(b).
"DEFINITIVE SECURITY" means any Note Certificate which is not a Global
Security.
"DELAWARE TRUSTEE" means Wilmington Trust Company, a Delaware banking
corporation not in its individual capacity but solely as trustee and its
successors.
"DEPOSITARY" shall mean, if the Notes are represented by one or more Global
Securities, the Clearing Corporation or its agent or nominee designated as
Depositary by the Trust pursuant to Section 2.10 until a successor Depositary
shall have become such pursuant to the applicable provisions of the Indenture,
and thereafter "DEPOSITARY" shall mean or include each Person who is then a
Depositary under the Indenture. The Depositary must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation. Unless otherwise specified in the Note Certificate(s), the
"DEPOSITARY" shall initially be DTC.
"DISTRIBUTION AGREEMENT" means that certain Distribution Agreement dated as
of -, 2003, by and among Global Funding and the Agents named therein, as the
same may be amended, restated, modified or supplemented from time to time.
"DTC" means The Depository Trust Company and its successors and assigns.
"ENTITLEMENT HOLDER" means any Person in whose name Notes are credited to a
securities account maintained in the name of such Person on the books and
records of a Clearing Corporation or other Securities Intermediary.
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"EURO" means the currency introduced at the start of the third stage of the
European economic and monetary union pursuant to the treaty establishing the
European Community, as amended by the Treaty on European Union.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.1 which shall have continued for the period of time, if any, therein
designated.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE EVENT" has the meaning set forth in Section 2.10(b).
"EXCHANGE RATE AGENT" means the Indenture Trustee in its capacity as
exchange rate agent or any other person specified as exchange rate agent with
respect to any Notes in the Note Certificate(s).
"FOREIGN CURRENCY NOTE" means a Note the Specified Currency of which is
other than U.S. Dollars.
"FUNDING AGREEMENT" means each funding agreement issued by the Funding
Agreement Provider to Global Funding, which is immediately sold to and deposited
into, the Trust by Global Funding, and immediately pledged and collaterally
assigned by the Trust to the Indenture Trustee for the benefit of the Holders of
the Notes, as the same may be modified, restated, replaced, supplemented or
otherwise amended from time to time in accordance with the terms thereof.
"FUNDING AGREEMENT PROVIDER" means
Allstate Life Insurance Company, a stock
life insurance company organized under the laws of the State of Illinois.
"FUNDING NOTE" has the meaning set forth in Part F of the Series
Instrument.
"GLOBAL FUNDING" means Allstate Life Global Funding, a statutory trust
formed under the laws of the State of Delaware.
"GLOBAL SECURITY" means a single Note Certificate deposited with the
Depositary and registered in the name of a Clearing Corporation or its agent or
nominee representing the entire issue of Book-Entry Notes, or if the rules of
the applicable Clearing Corporation or the applicable securities laws or
regulations of any jurisdiction limit the maximum principal amount of Note
Certificates, each of the minimum number of Note Certificates so deposited and
registered that are required to comply with such laws, regulations and rules
while representing in the aggregate the entire issue of Book-Entry Notes.
"GUARANTEE" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by virtue of an agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise), (ii) to reimburse a
bank for amounts drawn under a letter of credit for the purpose of paying such
Debt or (iii) entered into for the purpose of assuring in any
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other manner the holder of such Debt of the payment thereof or to protect such
holder against loss in respect thereof (in whole or in part); PROVIDED that the
term "GUARANTEE" shall not include endorsements for collection or deposit in the
ordinary course of business.
The term "GUARANTEE" used as a verb has a corresponding meaning.
"HOLDER" means, with respect to any Note, the Person in whose name such
Note is registered in the Note Register.
"HOLDER REPRESENTATIVE" has the meaning set forth in Section 5.8(a).
"INCORPORATED PROVISION" has the meaning set forth in Section 13.8.
"INDENTURE" means that certain Indenture included in Part A of the
Closing Instrument, and which incorporates by reference these
Standard
Indenture Terms, between the Trust and the Indenture Trustee, as the same may
be amended, restated or supplemented from time to time.
"INDENTURE TRUSTEE" means ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association,
and its successors.
"INITIAL REDEMPTION DATE" means, with respect to any Note or portion
thereof to be redeemed pursuant to Section 3.1(b), the date on or after which
such Note or portion thereof may be redeemed as determined by or pursuant to the
Indenture or a Note Certificate of Supplemental Indenture.
"INITIAL REDEMPTION PERCENTAGE" has the meaning specified in the Note
Certificate(s).
"INTEREST PAYMENT DATE" has the meaning specified in Section 2.8(a).
"INTEREST RESET DATE" has the meaning specified in the Note Certificate(s).
"LIBOR", has the meaning ascribed in the Note Certificate(s).
"LIBOR CURRENCY" means the currency specified in the Note Certificate(s) as
to which LIBOR shall be calculated or, if no currency is specified in the
applicable Note Certificate, United States dollars.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect as a
security interest, in respect of such asset. For purposes hereof, the Trust
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"MARKET EXCHANGE RATE" for a Specified Currency other than United States
dollars means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes (or, if
not so certified, as otherwise determined) by the Federal Reserve Bank of New
York.
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"MATURITY DATE" means, with respect to the principal (or any installment of
principal) of the Notes, any date prior to the Stated Maturity Date on which the
principal (or such installment of principal) of the Notes becomes due and
payable whether, as applicable, by the declaration of acceleration of maturity,
notice of redemption at the option of the Trust, notice of the Holder's option
to elect repayment or otherwise.
"NAME LICENSING AGREEMENT" means that certain Name Licensing Agreement
included in Part D of the Series Instrument, between Allstate Insurance Company
and the Trust, as the same may be amended, restated, modified, supplemented or
replaced from time to time.
"NONRECOURSE PARTIES" has the meaning set forth in Section 13.1.
"NOTE" means each medium term note issued by the Trust and authenticated by
the Indenture Trustee under the Indenture, each in an authorized denomination
and represented, individually or collectively, by a Note Certificate.
"NOTE CERTIFICATE" means a security certificate representing one or more
Notes.
"NOTE REGISTER" has the meaning set forth in Section 2.6(a).
"OBLIGATIONS" means the obligations of the Trust secured under the Notes
and the Indenture, including (a) all principal of, any premium and interest
payable (including, without limitation, any interest which accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of the Trust, whether or not allowed or allowable
as a claim in any such proceeding) on, and any Additional Amounts with respect
to, the Notes or pursuant to the Indenture, (b) all other amounts payable by the
Trust under the Indenture or under the Notes including all costs and expenses
(including attorneys' fees) incurred by the Indenture Trustee or any Holder
thereof in realizing on the Collateral to satisfy such obligations and (c) any
renewals or extensions of the foregoing.
"OPINION OF COUNSEL" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Trust or the Indenture Trustee or
who may be other counsel satisfactory to the Indenture Trustee. Each such
opinion shall include the statements provided for in Section 13.5 hereof, if and
to the extent required hereby.
"OUTSTANDING" shall, subject to the provisions of Section 8.5, mean, as of
any particular time, all Notes represented by Note Certificates executed by the
Trust and authenticated and delivered by the Indenture Trustee under the
Indenture, except (a) any Note represented by a Note Certificate theretofore
cancelled by the Indenture Trustee or delivered to the Indenture Trustee for
cancellation; (b) any Note as to which funds for the full payment or redemption
of which in the necessary amount shall have been deposited in trust with the
Indenture Trustee or with any Paying Agent; PROVIDED that if such Note is to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in or pursuant to the Indenture, or provision
satisfactory to the Indenture Trustee shall have been made for giving such
notice; and (c) any Note represented by a Note Certificate in substitution for
which one or more other Note Certificates shall have been authenticated and
delivered pursuant to the terms of Section 2.5 or which shall have been paid
(unless proof satisfactory to the Indenture Trustee is
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presented that any of such Note is held by a Person in whose hands such Note is
a legal, valid and binding obligation of the Trust).
"OWNER" shall, with respect to each Funding Agreement, have the meaning
specified in such Funding Agreement.
"PAYING AGENT" means the Indenture Trustee in its capacity as paying agent
and its successors, and any other Person specified as paying agent with respect
to any Notes in the Note Certificate(s).
"PERSON" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
limited liability company, trust (including any beneficiary thereof), bank,
trust company, land trust, trust or other organization, whether or not a legal
entity, and any government or any agency or political subdivision thereof.
"PRICING SUPPLEMENT" means the pricing supplement included as Annex A to
the Series Instrument.
"PRINCIPAL AMOUNT" with respect to a Funding Agreement, has the meaning
ascribed in such Funding Agreement.
"PRINCIPAL FINANCIAL CENTER" means, as applicable (i) the capital city of
the country issuing the Specified Currency; or (ii) the capital city of the
country to which the LIBOR Currency relates; PROVIDED, HOWEVER, that with
respect to United States dollars, Australian dollars, Canadian dollars,
Portuguese escudos, South African rands and Swiss francs, the "Principal
Financial Center" shall be The City of New York, Sydney, Toronto, London (solely
in the case of the LIBOR Currency), Johannesburg and Zurich, respectively.
"PROCEEDS" means all of the proceeds of, and all other profits, products,
rents, principal payments, interest payments or other receipts, in whatever
form, arising from the collection, sale, lease, exchange, assignment, licensing
or other disposition or maturity of, or other realization upon, a Funding
Agreement, including without limitation all claims of the Trust against third
parties for loss of, damage to or destruction of, or for proceeds payable under,
such Funding Agreement, in each case whether now existing or hereafter arising.
"REDEMPTION DATE" means, with respect to any Note to be redeemed, pursuant
to Section 3.1(b) or Section 3.1(c), the date of redemption of such Note
specified in the relevant notice of redemption provided to the Indenture Trustee
pursuant to Section 3.1(d).
"REDEMPTION PRICE" means, with respect to the Notes, an amount equal to the
Initial Redemption Percentage specified in the Note Certificate(s) (as adjusted
by the Annual Redemption Percentage Reduction, if applicable) multiplied by the
unpaid principal amount thereof to be redeemed.
"REGISTRAR" has the meaning specified in Section 2.6(a).
"REGULAR INTEREST RECORD DATE" has the meaning set forth in Section 2.8(a).
7
"REPAYMENT DATE" means, with respect to any Note or portion thereof to be
repaid pursuant to Section 3.2, the date for the repayment of such Note or
portion thereof as determined by or pursuant to the Indenture or a Note
Certificate or Supplemental Indenture.
"REPAYMENT PRICE" means, with respect to any Note or portion thereof to be
repaid pursuant to Section 3.2, the price for repayment of such Note or portion
thereof as determined by, or pursuant to, the Indenture or an applicable Note
Certificate or Supplemental Indenture.
"RESPONSIBLE OFFICER" when used with respect to any Person means the
chairman of the board of directors or any vice chairman of the board of
directors or the president or any vice president (whether or not designated by a
number or numbers or a word or words added before or after the title "vice
president") of such Person. With respect to the Trust, Responsible Officer means
any Responsible Officer (as defined in the preceding sentence) plus any
assistant secretary and any financial services officer of the Delaware Trustee,
and with respect to the Indenture Trustee, Responsible Officer means any
Responsible Officer (as defined in the first sentence of this definition) plus
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the cashier, the secretary, the
treasurer, any trust officer, any assistant trust officer, any assistant vice
president, any assistant cashier, any assistant secretary, any assistant
treasurer, or any other authorized officer of the Indenture Trustee customarily
performing functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES INTERMEDIARY" means any Person, including any Clearing
Corporation, bank or broker, that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity.
"SECURITY INTEREST" has the meaning set forth in Section 14.1(a).
"SERIES INSTRUMENT" means the series instrument of the Trust, pursuant to
which the Administrative Services Agreement, the Coordination Agreement, the
Name Licensing Agreement, the Support Agreement, the Terms Agreement and the
Trust Agreement are entered into, and certain other documents are executed, in
connection with the issuance of the Notes by the Trust.
"SPECIAL INTEREST RECORD DATE" has the meaning set forth in Section 2.8(b).
"SPECIFIED CURRENCY" has the meaning specified in Section 2.4.
"STATED MATURITY DATE," means with respect to any Note, any installment of
principal thereof, or interest thereon, any premium thereon or any Additional
Amounts with respect thereto, the date established by or pursuant to the
Indenture or Note Certificate or Supplemental Indenture as the date on which the
principal of such Note or such installment of principal or interest or such
premium is, or such Additional Amounts are, due and payable.
"SUPPLEMENTAL INDENTURE" has the meaning specified in Section 9.1(a).
8
"SUPPORT AGREEMENT" means that certain Support and Expenses Agreement
included in Part C of the Series Instrument, by and between the Funding
Agreement Provider and the Trust, as the same may be amended, modified or
supplemented from time to time.
"TARGET SYSTEM" means the Trans-European Automated Real Time Gross
Settlement Express Transfer (TARGET) System.
"TAX EVENT" has the meaning specified in Section 3.1(c).
"TERMS AGREEMENT" means that certain Terms Agreement included in Part E of
the Series Instrument, by and among Global Funding, the Trust and each Agent
named therein, which will incorporate by reference the terms of the Distribution
Agreement.
"TRUST" means the Allstate Life Global Funding Trust specified in the
Series Instrument, together with its permitted successors and assigns.
"TRUST AGREEMENT" means that certain Trust Agreement included in Part A of
the Series Instrument, among the Delaware Trustee, the Administrator and the
Trust Beneficial Owner.
"TRUST BENEFICIAL OWNER" means Global Funding, in its capacity as the sole
beneficial owner of the Trust, and its successors.
"TRUST CERTIFICATE" means a certificate signed by the Administrator on
behalf of the Trust and delivered to the Indenture Trustee. Each such
certificate shall include the statements provided for in Section 13.5.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, as
amended.
"UCC" means the Uniform Commercial Code, as from time to time in effect in
the State of New York; PROVIDED THAT, with respect to the perfection, effect of
perfection or non-perfection, or priority of any security interest in the
Collateral, "UCC" shall mean the applicable jurisdiction whose law governs such
perfection, non-perfection or priority.
"UNITED STATES", except as otherwise provided in or pursuant to the
Indenture or any Note Certificate, means the United States of America (including
the states thereof and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"UNITED STATES DOLLARS", "U.S. DOLLARS" or "$" means lawful currency of the
United States.
SECTION 1.2 INTERPRETATION. For all purposes of the Indenture except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article shall have the meanings
ascribed to them in this Article and shall include the plural as
well as the singular;
(b) all accounting terms used and not expressly defined shall have
the meanings given to them in accordance with United States
generally
9
accepted accounting principles, and the term "generally accepted
accounting principles" shall mean such accounting principles
which are generally accepted at the date or time of any
computation or at the date of the Indenture;
(c) references to Exhibits, Articles, Sections, paragraphs,
subparagraphs and clauses shall be construed as references to the
Exhibits, Articles, Sections, paragraphs, subparagraphs and
clauses of the Indenture;
(d) the words "include", "includes" and "including" shall be
construed to be followed by the words "without limitation"; and
(e) Article and Section headings are for the convenience of the
reader and shall not be considered in interpreting the Indenture
or the intent of the parties.
ARTICLE 2
THE NOTES
SECTION 2.1 AMOUNT UNLIMITED. The aggregate principal amount of Notes
that may be authenticated and delivered under the Indenture is unlimited.
SECTION 2.2 STATUS OF NOTES. The Notes constitute direct, unconditional,
unsubordinated and secured non-recourse obligations of the Trust and rank
equally among themselves.
SECTION 2.3 FORMS GENERALLY.
(a) The Note Certificates, shall be in, or substantially in, the form
set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit A-3 and Exhibit
A-4 attached hereto, as applicable, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by the Indenture or as
may in the Trust's judgment be necessary, appropriate or
convenient to permit the Notes to be issued and sold, or to
comply, or facilitate compliance, with applicable laws, and may
have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange on which the
Notes may be listed, or as may, consistently herewith, be
determined by the Responsible Officer of the Trust executing such
Note Certificates, with the approval of the Indenture Trustee, as
evidenced by his or her execution thereof.
(b) Note Certificates may be printed, lithographed, engraved,
typewritten, photocopied or otherwise produced in any manner as
the Responsible Officer of the Trust executing such Notes may
determine.
(c) The terms and provisions contained in the Note Certificates and
in any Supplemental Indenture shall constitute, and are expressly
made, a part of
10
the Indenture and, to the extent applicable, the Trust and the
Indenture Trustee, by their execution and delivery of the
Indenture, expressly agree to such terms and provisions and to be
bound thereby.
SECTION 2.4 CURRENCY; DENOMINATIONS.
(a) Unless otherwise specified in the Note Certificates or in any
Supplemental Indenture, Notes will be denominated in, and
payments of principal of, premium and interest on, and Additional
Amounts in respect to, the Notes will be made in, U.S. dollars.
The currency in which the Notes are denominated (or, if such
currency is no longer legal tender for the payment of public and
private debts in the country issuing such currency or, in the
case of Euro, in the member states of the European Union that
have adopted the single currency in accordance with the Treaty
establishing the European Community, as amended by the Treaty on
European Union, such currency which is then such legal tender) is
in the Indenture referred to as the "SPECIFIED CURRENCY".
(b) The Trust appoints the Indenture Trustee as Exchange Rate Agent
with respect to the Notes and the Indenture Trustee accepts such
appointment.
(c) If the Specified Currency for Foreign Currency Notes is not
available for any required payment of principal, premium, if any,
and/or interest, if any, due to the imposition of exchange
controls or other circumstances beyond the control of the Trust,
the Trust will be entitled to satisfy the obligations to the
registered holders of such Foreign Currency Notes by making
payments in United States dollars on the basis of the Market
Exchange Rate, computed by the Exchange Rate Agent as described
above, on the second business day prior to the particular payment
or, if the Market Exchange Rate is not then available, on the
basis of the most recently available market exchange rate.
(d) Unless otherwise specified in the Note Certificates or in a
Supplemental Indenture, Notes shall be issued in minimum
denominations of $1,000 and integral multiples of $1,000 in
excess thereof or equivalent denominations in other currencies.
(e) The Trust may (if so specified in a Note Certificate or
Supplemental Indenture) without the consent of the Holder of any
Note, redenominate all, but not less than all, of the Notes on or
after the date on which the member state of the European Union in
whose national currency the Notes are denominated has become a
participant member in the third stage of the European economic
and monetary union as more fully set out in a Note Certificate or
Supplemental Indenture.
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(f) Unless otherwise specified in a Note Certificate or Supplemental
Indenture, the Trust shall not sell Foreign Currency Notes in, or
to residents of, the country issuing the Specified Currency.
SECTION 2.5 EXECUTION, AUTHENTICATION, DELIVERY AND DATE.
(a) Each Note Certificate shall be executed on behalf of the Trust by
any Responsible Officer of the Delaware Trustee. The signature of
any Responsible Officer of the Delaware Trustee may be manual, in
facsimile form, imprinted or otherwise reproduced and may, but
need not, be attested.
(b) Each Note Certificate bearing the signature of a Person who was
at any time a Responsible Officer of the Delaware Trustee shall
bind the Trust, notwithstanding that such Person has ceased to
hold such office prior to the authentication and delivery of such
Note Certificate or did not hold such office at the date of such
Note Certificate.
(c) At any time, and from time to time, after the execution and
delivery of the Indenture, the Trust may deliver Note
Certificates executed by or on behalf of the Trust to the
Indenture Trustee for authentication, and the Indenture Trustee
shall thereupon authenticate and deliver such Note Certificates
as provided in the Indenture and not otherwise.
(d) The Indenture Trustee shall have the right to decline to
authenticate and deliver any Note Certificates under this Section
if the Indenture Trustee has obtained an Opinion of Counsel
reasonably acceptable to the Trust, to the effect that the
issuance of the Notes will adversely affect the Indenture
Trustee's own rights, duties or immunities under the Indenture.
(e) The Note Certificates shall be dated the date of their
authentication.
(f) No Note shall be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose, unless there appears on
the Note Certificate representing such Note a certificate of
authentication substantially in the form attached as Exhibit B
executed by the Indenture Trustee by manual signature of one of
its authorized signatories. Such certificate upon any Note
Certificate shall be conclusive evidence, and the only evidence,
that such Note Certificate has been duly authenticated and
delivered under the Indenture.
SECTION 2.6 REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Indenture Trustee will serve initially as registrar (in such
capacity, and together with any successor registrar, the
"REGISTRAR") for the Notes. In such capacity, the Indenture
Trustee will cause to be kept at the Corporate Trust Office of
the Indenture Trustee a register (the "NOTE REGISTER") in which,
subject to such reasonable regulations as it may
12
prescribe, the Indenture Trustee will provide for the
registration of the Notes and of transfers of the Notes. The Note
Register shall be in written form in the English language or in
any other form capable of being converted into such form within a
reasonable time.
(b) Subject to Section 2.10, upon surrender of a Note Certificate for
registration of transfer of any Note represented thereby,
together with the form of transfer endorsed thereon duly
completed and executed, at the designated office of the Registrar
or of any applicable transfer agent, each as provided in a Note
Certificate or Supplemental Indenture, the Delaware Trustee, on
behalf of the Trust shall execute, and the Indenture Trustee
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Note Certificates of
any authorized denomination representing an aggregate principal
amount of Notes equal to the aggregate principal amount of the
Notes represented by such Note Certificate surrendered for
registration of transfer.
(c) Subject to Section 2.10, at the option of the applicable Holder,
any Note Certificate may be exchanged for one or more new Note
Certificates, and any two or more Note Certificates may be
consolidated into and exchanged for a single Note Certificate or
fewer than the number of Note Certificates duly presented for
exchange, in each case representing one or more Notes in an
aggregate principal amount equal to the aggregate principal
amount of the Notes represented by the Note Certificate or Note
Certificates duly presented for exchange. Each Note Certificate
to be exchanged shall be surrendered at the designated office of
the Registrar or of any applicable transfer agent, each as
provided in a Note Certificate or Supplemental Indenture.
Whenever any Note Certificate is so surrendered for exchange, the
Delaware Trustee, on behalf of the Trust shall execute, and the
Indenture Trustee shall authenticate and deliver, the Note
Certificate or Note Certificates which the applicable Holder is
entitled to receive, bearing numbers, letters or other
designating marks not contemporaneously outstanding.
(d) Each Note Certificate executed, authenticated and delivered upon
any transfer or exchange shall be a valid obligation of the
Trust, evidencing the same debt, and entitled to the same
benefits under the Indenture, as the Note Certificates
surrendered in connection with any such transfer or exchange.
Upon surrender, transfer or exchange of a Note Certificate
pursuant to this Section 2.6, each new Note Certificate will,
within three Business Days of the receipt of the applicable form
of transfer or the applicable surrender, as the case may be, be
delivered to the designated office of the Registrar or of any
applicable transfer agent, each as provided in a Note Certificate
or Supplemental Indenture, or mailed at the risk of the Person
entitled to such Note Certificate to such address as may be
specified in the form of transfer or in written instructions of
the applicable Holder upon surrender for exchange.
13
(e) Every Note Certificate presented or surrendered in connection
with any transfer or exchange shall (if so required by the Trust
or the Indenture Trustee) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the
Trust and the Indenture Trustee duly executed by, the applicable
Holder or his attorney duly authorized in writing.
(f) No service charge shall be made in connection with any transfer
of Notes or exchange of Note Certificates, but the Trust or the
Indenture Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any transfer of Notes or exchange of Note
Certificates.
(g) Except as otherwise provided in or pursuant to the Indenture, the
Trust and the Indenture Trustee shall not be required to (i) upon
presentation or surrender of a Note Certificate in connection
with any transfer or exchange during a period beginning at the
opening of business 15 days before the day of the selection for
redemption of Notes under Section 3.1 and ending at the close of
business on the day of such selection, exchange any Note
Certificate representing any Note selected for redemption,
register the transfer of any such Note, or portion thereof,
except in the case of any Note to be redeemed in part, with
respect to the portion of such Note not to be redeemed, or (ii)
exchange any Note Certificate representing any Note the Holder or
Holders of which shall have exercised the option pursuant to
Section 3.2 to require the Trust to repay any such Note prior to
its Stated Maturity Date or register the transfer of any such
Note except, in the case of any Note to be repaid in part, with
respect to the portion of such Note not to be repaid.
SECTION 2.7 MUTILATED, DESTROYED, LOST OR STOLEN NOTE CERTIFICATES.
(a) If (i) any mutilated Note Certificate is surrendered to the
Indenture Trustee or the Trust, or the Indenture Trustee and the
Trust receive evidence to their satisfaction of the destruction,
loss or theft of any Note Certificate, and (ii) there is
delivered to the Trust and the Indenture Trustee such security or
indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trust or the
Indenture Trustee that such Note Certificate has been acquired by
a protected purchaser, the Trust shall execute and upon its
request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Note Certificate, a new Note Certificate representing
Notes of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
(b) If any Note represented by any such mutilated or apparently
destroyed, lost or stolen Note Certificate has become or is about
to become due and payable, the Trust in its discretion may,
instead of issuing a new Note
14
Certificate, pay such amounts in respect of the Notes represented
by such Note Certificate.
(c) Upon the execution, authentication and delivery of any new Note
Certificate under this Section, the Indenture Trustee or the
Trust may require the Holder to pay a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses
of the Indenture Trustee) connected therewith.
(d) The Notes represented by every Note Certificate executed,
authenticated and delivered pursuant to this Section in lieu of
any apparently destroyed, lost or stolen Note Certificate shall
constitute an original additional contractual obligation of the
Trust, whether or not any obligation with respect to the Notes
represented by the apparently destroyed, lost or stolen Note
Certificate shall be at any time enforceable by any Person, and
shall be entitled to all of the benefits of the Indenture equally
and proportionately with any and all other Notes duly issued
under the Indenture.
(e) The provisions of this Section are exclusive with respect to the
replacement of any mutilated or apparently destroyed, lost or
stolen Note Certificate or the payment of the Notes represented
thereby and shall preclude all other rights and remedies with
respect to the replacement of any mutilated or apparently
destroyed, lost or stolen Note Certificate or the payment of the
Notes represented thereby.
SECTION 2.8 INTEREST RECORD DATES.
(a) Interest on and Additional Amounts with respect to any Note which
is payable, on any interest payment date specified in the Note
Certificates or in any Supplemental Indenture (each such date, an
"INTEREST PAYMENT DATE") shall be paid to the Holder of such Note
at the close of business on the date specified as the regular
interest record date in the Note Certificates or Supplemental
Indenture (the "REGULAR INTEREST RECORD DATE") or, if no such
date is specified, the date that is 15 calendar days preceding
such Interest Payment Date.
(b) Unless otherwise provided in the Note Certificates or in any
Supplemental Indenture, any interest on, and any Additional
Amounts with respect to, any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date specified in the Note Certificates or Supplemental Indenture
(the "DEFAULTED INTEREST") shall forthwith cease to be payable to
the Holder of such Note on the relevant Regular Interest Record
Date by virtue of having been such Holder, and such Defaulted
Interest shall be paid by the Trust to the Holder of such Note at
the close of business on a special record date (the "SPECIAL
INTEREST RECORD DATE")
15
established by the Trust by notice to each applicable Holder and
the Indenture Trustee in accordance with Section 13.4, which
Special Interest Record Date shall be not more than 15 nor less
than 10 days prior to the date of the proposed payment of
Defaulted Interest and not less than 10 days after the receipt by
the Indenture Trustee of the notice of the proposed payment of
Defaulted Interest.
SECTION 2.9 CANCELLATION. Each Note Certificate surrendered for exchange
or in connection with any payment, redemption, transfer of any Note represented
thereby shall be delivered to the Indenture Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Trust may at any time deliver
to the Indenture Trustee for cancellation any Note Certificate previously
authenticated and delivered under the Indenture which the Trust may have
acquired in any manner whatsoever, and each Note Certificate so delivered shall
be promptly cancelled by the Indenture Trustee. No Note Certificates shall be
authenticated in lieu of or in exchange for any Note Certificate cancelled as
provided in this Section, except as expressly permitted by the Indenture. The
Indenture Trustee shall destroy all cancelled Note Certificates held by it and
deliver a certificate of destruction to the Trust. If the Trust shall acquire
any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until each
Note Certificate representing such Notes is delivered to the Indenture Trustee
for cancellation.
SECTION 2.10 GLOBAL SECURITIES.
(a) Unless (i) permitted by applicable law and (ii) an Exchange Event
shall have occurred and be continuing with respect to a series of
Book-Entry Notes represented by one or more Global Securities, no
Book-Entry Note represented by any such Global Security shall be
exchangeable for Certificated Notes.
(b) For purposes of the Indenture, the term "EXCHANGE EVENT" means
any of the following:
(i) the Depositary with which any Global Security is
deposited shall have notified the Trust that it is
unwilling or unable to continue as the Depositary for any
Global Security or the Trust becomes aware that the
Depository has ceased to be a clearing agency registered
under the Exchange Act and, in any such case, the Trust
fails to appoint a successor to the Depositary within 60
calendar days;
(ii) the Trust, in its sole discretion, determines that the
Notes should no longer be represented solely by one or
more Global Securities; or
(iii) an Event of Default shall have occurred and be continuing
with respect to the Notes.
16
(c) If any Exchange Event shall have occurred and be continuing,
then:
(i) with respect to each Global Security deposited with, and
registered in the name of, the applicable Depositary or
its nominee, the Delaware Trustee, on behalf of the Trust
shall promptly, and in any event not later than 10
Business Days after the occurrence of such Exchange
Event, cause to be executed, authenticated and delivered
to the applicable Depositary or its nominee, against
surrender by the applicable Depositary or its nominee of
such Global Security, which shall thereupon be cancelled
by the ------, a Definitive Security or a Definitive
Securities each representing such number of Notes as may
be specified by the applicable Depositary in an aggregate
principal amount equal to the (Outstanding principal
amount of Notes that shall have been represented by such
Global Security and shall register the Certificated Notes
in such names and in such authorized denominations as may
be specified by the Depositary for the Global Security;
and
(ii) if any Certificated Note is issued in exchange for any
portion of or all Book-Entry Notes represented by a
Global Security after the close of business at the office
or agency for such Note where such exchange occurs on (A)
any Regular Interest Record Date for such Notes and
before the opening of business at such office or agency
on the next Interest Payment Date, or (B) any Special
Interest Record Date for such Notes and before the
opening of business at such office or agency on the
related proposed date for payment of interest, any
Additional Amounts or Defaulted Interest, as the case may
be, interest, Additional Amounts or Defaulted Interest,
as the case may be, shall not be payable on such Interest
Payment Date or proposed date for payment, as the case
may be, in respect of such Notes, but shall be payable on
such Interest Payment Date or proposed date for payment,
as the case may be, only to the Person to whom interest
and any Additional Amounts or Defaulted Interest, as
applicable, in respect of such portion of or all
Book-Entry Notes, as the case may be, represented by such
Global Security shall be payable in accordance with the
provisions of the Indenture.
(d) The Certificated Notes issued in exchange for any Book-Entry
Notes represented by a Global Security shall be of like tenor and
of an equal aggregate principal amount, in authorized
denominations. Such Certificated Notes shall be registered in the
name or names of such person or persons as the applicable
Depository shall instruct the Registrar.
SECTION 2.11 WITHHOLDING TAX. All amounts due in respect of the Notes
will be made without withholding or deduction for or on account of any present
or future taxes, duties, levies, assessments or other governmental charges of
whatever nature imposed or levied by or on
17
behalf of any governmental authority in the United States having the power to
tax payments on the notes unless the withholding or deduction is required by
law. Unless otherwise specified in the Note Certificate(s), the Trust will not
pay any Additional Amounts to Holders of Notes in the event that any withholding
or deduction is so required by law, regulation or official interpretation
thereof, and the imposition of a requirement to make any such withholding or
deduction will not give rise to any independent right or obligation to redeem or
repay the Notes and shall not constitute an Event of Default.
SECTION 2.12 TAX TREATMENT. The parties agree, and each Holder and
beneficial owner of Notes by purchasing the Notes agrees, for all United States
Federal, state and local income and franchise tax purposes (i) to treat the
Notes as indebtedness of the Funding Agreement Provider, (ii) Global Funding and
the Trust will be ignored and will not be treated as an association or a
publicly traded partnership taxable as a corporation and (iii) to not take any
action inconsistent with the treatment described in (i) and (ii) unless
otherwise required by law.
ARTICLE 3
REDEMPTION, REPAYMENT AND REPURCHASE OF NOTES; SINKING FUNDS
SECTION 3.1 REDEMPTION OF NOTES.
(a) Redemption of Notes by the Trust as permitted or required by the
Indenture and the Note Certificate(s) will be made in accordance
with the terms of the Notes and (except as otherwise provided in
the Indenture or pursuant to the Indenture) this Section.
(b) If any Initial Redemption Date is specified in the Note
Certificate(s), the Trust may redeem Notes prior to the Stated
Maturity Date at its option, on, or on any Business Day after,
the Initial Redemption Date in whole or from time to time in part
in increments of $1,000 or any other integral multiple of an
authorized denomination of the Notes at the applicable Redemption
Price together with any unpaid interest accrued thereon, any
Additional Amounts and other amounts payable with respect
thereto, as of the Redemption Date.
(c) If (i) the Trust is required at any time to pay Additional
Amounts or if the Trust is obligated to withhold or deduct any
United States taxes with respect to any payment under the Notes,
as set forth in the Note Certificate(s), or if there is a
material probability that the Trust will become obligated to
withhold or deduct any such United States taxes or otherwise pay
Additional Amounts (in the opinion of independent legal counsel
selected by the Funding Agreement Provider), in each case
pursuant to any change in or amendment to any United States tax
laws (or any regulations or rulings thereunder) or any change in
position of the Internal Revenue Service regarding the
application or interpretation thereof (including, but not limited
to, the Funding Agreement Provider's or the Trust's receipt of a
written adjustment from the Internal Revenue Service in
connection with an audit) (a "TAX EVENT"), and (ii) the Funding
18
Agreement Provider, pursuant to the terms of the relevant Funding
Agreement, has delivered to the Owner notice that the Funding
Agreement Provider intends to terminate the relevant Funding
Agreement pursuant to the terms of such Funding Agreement, then
the Trust will redeem the Notes on the Redemption Date at the
Redemption Price together with any unpaid interest accrued
thereon, any Additional Amounts and other amounts payable with
respect thereto, as of the Redemption Date.
(d) Unless a shorter notice shall be satisfactory to the Indenture
Trustee, the Trust shall provide to the Indenture Trustee a
notice of redemption of any Notes (i) in case of any redemption
at the election of the Trust, not more than 60 days nor less than
35 days prior to the Redemption Date and (ii) in case of any
mandatory redemption pursuant to Section 3.1(c), at least 75 days
prior to the Redemption Date. In case of any redemption at the
election of the Trust of less than all of the Notes such notice
shall specify the aggregate principal amount of the Notes to be
redeemed.
(e) If less than all of the Notes are to be redeemed at the option of
the Trust, the particular Notes to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the
Indenture Trustee from the Outstanding Notes not previously
called for redemption, by such method as the Indenture Trustee
shall deem fair and appropriate, acting in accordance with its
obligations under the Indenture, and which may provide for the
selection for redemption of portions of the principal amount of
Notes; PROVIDED, HOWEVER, that no such partial redemption shall
reduce the portion of the principal amount of a Note not redeemed
to less than the minimum denomination for a Note established in
or pursuant to the Indenture; PROVIDED FURTHER, that if at the
time of redemption such Notes are registered as Global
Securities, the Depositary shall determine, in accordance with
its procedures, the principal amount of such Notes to be redeemed
by each of the Depositary's participants. The Indenture Trustee
shall promptly notify the Trust and the Registrar (if other than
itself) in writing of the Notes selected for redemption and, in
the case of any Notes selected for partial redemption, of the
aggregate principal amount thereof to be redeemed. For all
purposes of the Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Notes shall relate,
in the case of any Notes redeemed or to be redeemed only in part,
to the portion of the principal of such Notes which has been or
is to be redeemed.
(f) Unless otherwise specified in the Indenture or the Note
Certificate(s) the Trust shall give a notice of redemption to
each Holder of the Notes to be redeemed at the Trust's option (i)
in case of any redemption at the election of the Trust, not more
than 60 nor less than 30 days prior to the Redemption Date and
(ii) in case of any mandatory redemption pursuant to Section
3.1(c), not more than 75 days nor less than 30 days prior to the
Redemption Date; PROVIDED, that in the case of any notice of
redemption
19
given pursuant to clause (ii) no such notice of redemption may be
given earlier than 90 days prior to the earliest day on which the
Trust would become obligated to pay the applicable Additional
Amounts were a payment in respect of Notes then due. Failure to
give such notice to the Holder of any Note designated for
redemption in whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings
for the redemption of any other Note or any portion thereof.
Any notice that is mailed to the Holder of any Notes in the manner provided
for in Section 13.4 shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price or, if not then ascertainable, the
manner of calculation thereof,
(iii) in case of any redemption at the election of the Trust,
if less than all Outstanding Notes are to be redeemed,
the identification (and, in the case of partial
redemption, the principal amount) of the particular Note
or Notes to be redeemed,
(iv) in case any Note is to be redeemed in part only at the
election of the Trust, the notice which relates to such
Note shall state that on and after the Redemption Date,
upon surrender of the Note Certificate representing such
Note, the Holder of such Note will receive, without
charge, a new Note Certificate representing an authorized
denomination of the principal amount of such Note
remaining unredeemed,
(v) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Note or portion
thereof to be redeemed, and, if applicable, that interest
thereon shall cease to accrue on and after the Redemption
Date,
(vi) the place or places where each Note Certificate
representing such Note or Notes is to be surrendered for
payment of the Redemption Price together with any unpaid
interest accrued thereon through the Redemption Date and
any Additional Amounts payable with respect thereto,
(vii) if applicable, in case of any redemption at the election
of the Trust, that the redemption is for a sinking fund,
and
(viii) the CUSIP number or any other numbers used to identify
such Notes.
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(g) On or prior to any Redemption Date, the Trust shall deposit, with
respect to any Notes called for redemption pursuant to this
Section, with the Paying Agent an amount of money in the
Specified Currency sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date,
unless otherwise specified in the Note Certificate(s)) any unpaid
interest accrued through the Redemption Date on, and any
Additional Amounts payable with respect to, all such Notes or
portions thereof which are to be redeemed on the Redemption Date.
(h) On the Redemption Date, the Notes to be redeemed shall, become
due and payable at the Redemption Price together with any unpaid
interest accrued through the Redemption Date on, and any
Additional Amounts payable with respect to, such Notes, and from
and after such date (unless the Trust shall default in the
payment of the Redemption Price and any unpaid interest accrued
on such Notes through the Redemption Date) such Notes shall cease
to bear interest. Upon surrender of any Note Certificate for
redemption of any Note or Notes represented thereby in accordance
with the applicable notice of redemption, such Note shall be paid
by the Trust at the Redemption Price, together with any unpaid
interest accrued thereon through the Redemption Date and any
Additional Amounts payable with respect thereto.
(i) If any Note called for redemption shall not be so paid upon
surrender of the applicable Note Certificate for redemption, the
principal and any premium, until paid, shall bear interest from
the Redemption Date at the rate specified in the Note
Certificate(s).
Upon surrender of any Note Certificate for partial redemption of any Note
or Notes represented thereby in accordance with this Section, the Trust shall
execute and the Indenture Trustee shall authenticate and deliver one or more new
Note Certificates of any authorized denomination representing an aggregate
principal amount of Notes equal to the unredeemed portion of the applicable Note
or Notes.
SECTION 3.2 REPAYMENT AT THE OPTION OF THE HOLDER.
(a) If so specified in the Note Certificate(s), the Holder or Holders
of the Notes may require the Trust to repay the Notes prior to
the Stated Maturity Date in whole or from time to time in part in
increments of $1,000 or any other integral multiple of an
authorized denomination specified in the Note Certificate(s)
(provided that any remaining principal amount thereof shall be at
least $1,000 or other minimum authorized denomination applicable
thereto).
(b) Notes which are repayable at the option of the Holder or Holders
thereof before the Stated Maturity Date shall be repaid in
accordance with the terms of the Notes.
21
(c) The repayment of any principal amount of Notes pursuant to any
option of the applicable Holder or Holders to require repayment
of any Notes before the Stated Maturity Date shall not operate as
a payment, redemption or satisfaction of the indebtedness
represented by such Notes unless and until the Trust, at its
option, shall deliver or surrender each Note Certificate
representing such Notes to the Indenture Trustee with a directive
that such Note Certificates be cancelled.
(d) Notwithstanding anything to the contrary contained in this
Section, in connection with any repayment of Notes, the Trust may
arrange for the purchase of any Notes by an agreement with one or
more investment bankers or other purchasers to purchase such
Notes by paying the Holder or Holders of such Notes on or before
the close of business on the Repayment Date an amount not less
than the Repayment Price payable by the Trust on repayment of
such Notes, and the obligation of the Trust to pay the Repayment
Price of such Notes shall be satisfied and discharged to the
extent such payment is so paid by such purchasers.
(e) Any exercise of the repayment option will be irrevocable.
SECTION 3.3 REPURCHASE OF NOTES.
(a) The Trust may purchase some or all Notes in the open market or
otherwise at any time, and from time to time, with the prior written consent of
the Funding Agreement Provider as to both the making of such purchase and the
purchase price to be paid for such Notes.
(b) If the Funding Agreement Provider, in its sole discretion, consents to
such purchase of Notes by the Trust, the parties to the Indenture agree to take
such actions as may be necessary or desirable to effect the prepayment of such
portion, or the entirety, of the current Principal Amount, under each applicable
Funding Agreement as may be necessary to provide for the payment of the purchase
price for such Notes. Upon such payment, the Principal Amount under each Funding
Agreement shall be reduced (i) if Notes bear interest at fixed or floating
rates, by an amount equal to the aggregate principal amount of Notes so
purchased (or the portion thereof applicable to such Funding Agreement) and (ii)
if Notes do not bear interest at fixed or floating rates, by an amount to be
agreed between the Trust and the Funding Agreement Provider to reflect such
prepayment under the Funding Agreement(s).
(c) The parties acknowledge and agree that (i) notwithstanding anything to
the contrary in the Indenture, any repurchase of Notes in compliance with this
Section 3.3 shall not violate any provision of the Indenture or the Trust
Agreement and (ii) no Opinion of Counsel, Trust Certificate or any other
document or instrument shall be required to be provided in connection with any
repurchase of Notes pursuant to this Section 3.3.
(d) If applicable, the Trust will comply with the requirements of Section
14(e) of the Exchange Act, and the rules promulgated thereunder, and any other
applicable securities laws or regulations in connection with any repurchase
pursuant to this Section 3.3.
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SECTION 3.4 SINKING FUNDS.
Unless otherwise provided in the Note Certificate(s), the Notes will not be
subject to, or entitled to the benefit of, any sinking fund.
ARTICLE 4
PAYMENTS; PAYING AGENTS AND CALCULATION AGENT; COVENANTS
SECTION 4.1 PAYMENT OF PRINCIPAL AND INTEREST.
(a) The Trust will duly and punctually pay or cause to be paid the
principal of, any premium and interest on, and any Additional
Amounts with respect to, each of the Notes, in accordance with
the terms of the Notes and the Indenture.
(b) Unless otherwise specified in the Note Certificate(s), upon the
receipt of the funds necessary therefor, the applicable Paying
Agent shall duly and punctually make payments, payable on the
Maturity Date, of principal in respect of, any premium and
interest on, and any Additional Amounts payable with respect to,
any Certificated Notes in immediately available funds against
presentation and surrender of the applicable Definitive Security
(and in the case of any repayment of a Note pursuant to Section
3.2, upon submission of a duly completed election form at an
office or agency of such Paying Agent maintained for such purpose
pursuant to Section 4.2). The applicable Paying Agent (unless
such Paying Agent is the Indenture Trustee) shall promptly
forward each Definitive Security surrendered to it in connection
with any payment pursuant to this Section for cancellation in
accordance with Section 2.9. Unless otherwise specified in the
Note Certificate(s), upon the receipt of the funds necessary
therefor, the applicable Paying Agent shall duly and punctually
make payments of principal of, any premium and interest on, and
any Additional Amounts in respect of, Certificated Notes payable
on any date other than the Maturity Date by check mailed to the
Holder (or to the first named of joint Holders) of such
Certificated Note at the close of business on the Regular
Interest Record Date or Special Interest Record Date, as the case
may be, at its address appearing in the applicable Note Register.
Notwithstanding the foregoing, the applicable Paying Agent shall
make payments of principal, any interest, any premium, and any
Additional Amounts on any date other than the Maturity Date to
each Holder entitled thereto (or to the first named of joint
Holders) at the close of business on the applicable Regular
Interest Record Date or Special Interest Record Date, as the case
may be, of $10,000,000 (or, if the Specified Currency is other
than United States dollars, the equivalent thereof in the
particular Specified Currency) or more in aggregate principal
amount of Certificated Notes by wire transfer of immediately
available funds if the applicable Holder has delivered
appropriate wire transfer instructions in writing to the
applicable Paying Agent not less than 15 days prior to the date
on
23
which the applicable payment of principal, interest, premium or
Additional Amounts is scheduled to be made. Any wire transfer
instructions received by the applicable Paying Agent shall remain
in effect until revoked by the applicable Holder.
(c) Unless otherwise specified in the Note Certificate(s), upon
receipt of the funds necessary therefor, on the Maturity Date the
applicable Paying Agent shall (in the absence of any other
arrangements between the applicable Paying Agent and the
applicable Holder) duly and punctually make payments, payable on
the Maturity Date, of principal in respect of, any premium and
interest payable on, and any Additional Amounts with respect to,
any Book-Entry Notes to the account of the Depositary or its
nominee at the close of business on the applicable Maturity Date.
The applicable Paying Agent (unless such Paying Agent is the
Indenture Trustee) shall promptly forward to the Indenture
Trustee each Global Security surrendered to it in connection with
any payment pursuant to this section for cancellation in
accordance with Section 2.9. Unless otherwise specified in the
Note Certificate(s), upon the receipt of the funds necessary
therefor in accordance with Section 4.4(b), the applicable Paying
Agent shall duly and punctually make payments of principal of,
any premium and interest on, and any Additional Amounts in
respect of, any Book-Entry Notes payable on any date other than
the Maturity Date to the Holder of such Book-Entry Notes by 11:00
a.m. (New York City time) on the applicable Regular Interest
Record Date or Special Interest Record Date, as the case may be,
to the account of the Depositary or its nominee.
(d) Unless otherwise specified in the Note Certificate(s), the Trust
shall be obligated to make, or cause to be made, payments of
principal of, any premium and interest on, and any Additional
Amounts with respect to, a Foreign Currency Note in the Specified
Currency. Any amounts so payable by the Trust in the Specified
Currency will be converted by the Exchange Rate Agent into United
States dollars for payment to the Holder or Holders thereof
unless otherwise specified in the Note Certificate(s) or a Holder
elects to receive such amounts in the Specified Currency as
provided below.
(e) Any United States dollar amount to be received by the Holder or
Holders of Foreign Currency Notes will be based on the highest
bid quotation in The City of New York received by the Exchange
Rate Agent at approximately 11:00 a.m. (New York City time) on
the second Business Day preceding the applicable payment date
from three recognized foreign exchange dealers (one of whom may
be the Exchange Rate Agent) selected by the Exchange Rate Agent
and approved by the Trust for the purchase by the quoting dealer
of the Specified Currency for United States dollars for
settlement on that payment date in the aggregate amount of the
Specified Currency payable to all Holder or Holders of Foreign
Currency Notes scheduled to receive United States dollar payments
and at which the
24
applicable dealer commits to execute a contract. All currency
exchange costs will be borne by the relevant Holder or Holders of
Foreign Currency Notes by deductions from any payments. If three
bid quotations are not available, payments will be made in the
Specified Currency.
(f) Holders of Foreign Currency Notes may elect to receive all or a
specified portion of any payment of principal and/or any
interest, premium and Additional Amounts in the Specified
Currency by submitting a written request to the Indenture Trustee
at its Corporate Trust Office in The City of New York on or prior
to the applicable Regular Interest Record Date or Special
Interest Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be. Such written request may be
mailed or hand delivered or sent by cable, telex or other form of
facsimile transmission. Such election will remain in effect until
revoked by written notice delivered to the Indenture Trustee on
or prior to the applicable Regular Interest Record Date or
Special Interest Record Date or at least 15 calendar days prior
to the Maturity Date, as the case may be.
(g) Unless otherwise specified in the Note Certificate(s), an
Entitlement Holder with respect to a Foreign Currency Note
represented by a Global Security which elects to receive payments
of principal, and/or any interest, premium and Additional Amounts
in the Specified Currency must notify, or cause the notification
of the applicable Depositary of its election on or prior to the
applicable Regular Interest Record Date or Special Interest
Record Date, or at least 15 calendar days prior to the Maturity
Date, as the case may be, and the Depositary will notify the
Indenture Trustee of that election on or prior to the third
Business Day after the applicable Regular Interest Record Date or
Special Interest Record Date, or at least 12 calendar days prior
to the Maturity Date, as the case may be. If complete
instructions are received by the Depositary and by the Indenture
Trustee, on or prior to such dates, then the applicable
beneficial owner will receive payments in the Specified Currency.
(h) If the Specified Currency for Foreign Currency Notes is not
available for any required payment of principal and/or any
interest, premium and Additional Amounts due to the imposition of
exchange controls or other circumstances beyond the Trust's
control, the Trust will be entitled to satisfy its obligations
with respect to such Foreign Currency Notes by making payments in
United States dollars on the basis of the Market Exchange Rate,
computed by the Exchange Rate Agent as described above, on the
second Business Day prior to the particular payment or, if the
Market Exchange Rate is not then available, on the basis of the
most recently available Market Exchange Rate.
(i) All determinations made by the Exchange Rate Agent shall be at
its sole discretion and shall, in the absence of manifest error,
be conclusive for all
25
purposes and binding on the Holder or Holders of Foreign Currency
Notes and any applicable Entitlement Holders.
SECTION 4.2 OFFICES FOR PAYMENTS, ETC. So long as any of the Notes
remain Outstanding, the Trust will maintain in New York and in any other city
that may be required by any stock exchange on which the Notes may be listed, and
in any city specified in the Note Certificate(s) the following: (i) an office or
agency where the Notes may be presented for payment, (ii) an office or agency
where the Notes may be presented for registration of transfer and for exchange
as provided in the Indenture and (iii) an office or agency where notices and
demands to or upon the Trust in respect of the Notes or of the Indenture may be
served. The Trust will give to the Indenture Trustee written notice of the
location of any such office or agency and of any change of location thereof. The
Trust initially designates the Corporate Trust Office of the Indenture Trustee
as the office or agency for each such purpose. In case the Trust shall fail to
maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Corporate Trust Office.
SECTION 4.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF INDENTURE
TRUSTEE. The Trust, whenever necessary to avoid or fill a vacancy in the office
of Indenture Trustee, will appoint, in the manner provided in Section 6.8, a
trustee, so that there shall at all times be a trustee under the Indenture.
SECTION 4.4 PAYING AGENTS.
(a) The Trust appoints the Indenture Trustee as Paying Agent with
respect to the Notes and the Indenture Trustee accepts such
appointment. The Indenture Trustee, in its capacity as Paying
Agent, agrees, and, whenever the Trust shall appoint a Paying
Agent other than the Indenture Trustee with respect to the Notes,
the Trust will cause such Paying Agent to execute and deliver to
the Trust and the Indenture Trustee an instrument in which such
Paying Agent shall agree with the Trust and the Indenture
Trustee, subject to the provisions of this Section, that it will:
(i) hold all sums received by it as such agent for the
payment of the principal of, any premium or interest on,
or any Additional Amounts with respect to, the Notes
(whether such sums have been paid to it by the Funding
Agreement Provider, the Trust or by any other obligor on
the Notes) in trust for the benefit of each Holder of the
Notes and will (and will cause each of its agents and
Affiliates to) deposit all cash amounts received by it
(or such agents or Affiliates, as applicable) that are
derived from the Collateral for the benefit of the
Holders of Notes in a segregated non-interest bearing
account maintained or controlled by the Indenture
Trustee, consistent with the rating of the Outstanding
Notes;
26
(ii) give the Indenture Trustee notice of any failure by the
Trust (or by any other obligor on the Notes) to make any
payment of the principal of, any premium and interest on,
or any Additional Amounts with respect to, the Notes when
the same shall be due and payable;
(iii) pay any such sums so held in trust by it to the Indenture
Trustee upon the Indenture Trustee's written request at
any time during the continuance of the failure referred
to in clause (ii) above;
(iv) in the absence of the failure referred in clause (ii)
above, pay any such sums so held in trust by it in
accordance with the Indenture and the terms of the Notes;
and
(v) comply with all agreements of Paying Agents in, and
perform all functions and obligations imposed on Paying
Agents by or pursuant to, the Indenture and a Note
Certificate or Supplemental Indenture.
(b) The Trust will, at or prior to 9:30 a.m. (New York City time) on
each due date of the principal of, any premium and interest on,
or any Additional Amounts with respect to, the Notes, deposit or
cause to be deposited with the applicable Paying Agent a sum
sufficient to pay such principal, any interest or premium, and
any Additional Amounts, and (unless such Paying Agent is the
Indenture Trustee) the Trust will promptly notify the Indenture
Trustee of any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, the
Trust may at any time, for the purpose of obtaining a
satisfaction and discharge of the Notes under the Indenture, pay
or cause to be paid to the Indenture Trustee all sums held in
trust by the Trust or any Paying Agent under the Indenture, as
required by this Section, such sums to be held by the Indenture
Trustee upon the terms contained in the Indenture; PROVIDED,
HOWEVER, in order to obtain such satisfaction or discharge of the
Notes, that such sums paid to the Indenture Trustee must be at
least equal to the amounts due and owing on the Notes, including
outstanding principal, premium, accrued but unpaid interest and
Additional Amounts.
(d) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section are
subject to the provisions of Sections 11.3 and 11.4.
(e) The applicable Paying Agent shall (i) collect all forms from
Holders of Notes (or from such other Persons as are relevant)
that are required to exempt payments under the Notes and/or the
related Funding Agreement(s) from United States Federal income
tax withholding, (ii) withhold and pay over to the Internal
Revenue Service or other taxing
27
authority with respect to payments under the Notes any amount of
taxes required to be withheld by any United States Federal, state
or local statute, rule or regulation and (iii) forward copies of
such forms to the Trust and the Funding Agreement Provider.
(f) Each Paying Agent shall forward to the Trust at least monthly a
bank statement in its possession with respect to the performance
of its functions and obligations with respect to any Notes.
(g) The Trust shall pay the compensation of each Paying Agent at such
rates as shall be agreed upon in writing by the Trust and the
relevant Paying Agent from time to time and shall reimburse each
Paying Agent for reasonable expenses properly incurred by such
Paying Agent in connection with the performance of its duties
upon receipt of such invoices as the Trust shall reasonably
require.
(h) Subject as provided below, each Paying Agent may at any time
resign as Paying Agent by giving not less than 60 days' written
notice to the Trust and the Indenture Trustee (unless the
Indenture Trustee is such Paying Agent) of such intention on it
part, specifying the date on which its resignation shall become
effective. Except as provided below, the Trust may remove a
Paying Agent by giving not less than 20 days' written notice
specifying such removal and the date when it shall become
effective. Any such resignation or removal shall take effect
upon:
(i) the appointment by the Trust of a successor Paying Agent;
and
(ii) the acceptance of such appointment by such successor
Paying Agent,
PROVIDED that with respect to any Paying Agent who timely
receives any amount with respect to any Notes and fails duly to
pay any such amounts when due and payable in accordance with the
terms of the Indenture and such Notes, any such removal will take
effect immediately upon such appointment of, and acceptance
thereof by, a successor Paying Agent approved by the Indenture
Trustee (unless the Indenture Trustee is such Paying Agent), in
which event notice of such appointment shall be given to each
Holder of the Notes as soon as practicable thereafter. The Trust
agrees with each Paying Agent that if, by the day falling 10 days
before the expiration of any notice given pursuant to this
Section 4.4(i), the Trust has not appointed a replacement Paying
Agent, then the Paying Agent shall be entitled, on behalf of the
Trust, to appoint in its place a reputable financial institution
of good standing reasonably acceptable to the Trust and the
Indenture Trustee (unless the Indenture Trustee is such Paying
Agent); PROVIDED, HOWEVER, that notwithstanding the foregoing,
the resignation or removal of the relevant Paying Agent shall not
be effective unless, upon the expiration of the notice given
pursuant to this Section
28
4.5(i), the successor Paying Agent shall have accepted its
appointment. Upon its resignation or removal becoming effective,
the retiring Paying Agent shall be entitled to the payment of its
compensation and reimbursement of all expenses incurred by such
retiring Paying Agent pursuant to Section 4.4(h) up to the
effective date of such resignation or removal.
(i) If at any time a Paying Agent shall resign or be removed, or
shall become incapable of acting with respect to the Notes, or
shall be adjudged as bankrupt or insolvent, or a receiver or
liquidator of such Paying Agent or of its property shall be
appointed, or any public officer shall take charge or control of
such Paying Agent or its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then a successor
Paying Agent shall be appointed by the Trust by an instrument in
writing filed with the successor Paying Agent. Upon any such
appointment of, and the acceptance of such appointment by, a
successor Paying Agent and (except in cases of removal for
failure to timely pay any amounts as required by or pursuant to
the Indenture or a Note Certificate or Supplemental Indenture)
the giving of notice to each Holder of the Notes, the retiring
Paying Agent shall cease to be Paying Agent under the Indenture.
(j) Any successor Paying Agent appointed under the Indenture shall
execute and deliver to its predecessor, the Trust and the
Indenture Trustee (unless the Indenture Trustee is such Paying
Agent) a reasonably acceptable instrument accepting such
appointment under the Indenture, and thereupon such successor
Paying Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like
effect as if originally named as a Paying Agent under the
Indenture, and such predecessor, upon payment of any amounts due
pursuant to Section 4.4(h) and unpaid, shall thereupon become
obliged to transfer and deliver, and such successor Paying Agent
shall be entitled to receive, copies of any relevant records
maintained by such predecessor Paying Agent.
(k) Any corporation into which a Paying Agent may be merged or
converted or with which it may be consolidated or any corporation
resulting from any merger, conversion or consolidation to which
such Paying Agent shall be a party, or any corporation succeeding
to all or substantially all of the paying agency business of such
Paying Agent shall be a successor Paying Agent under the
Indenture without the execution or filing of any paper or any
further act on the part of any of the parties, anything in the
Indenture to the contrary notwithstanding. At least 30 days'
prior notice of any such merger, conversion or consolidation
shall be given to the Trust and the Indenture Trustee (unless the
Indenture Trustee is such Paying Agent).
29
SECTION 4.5 CALCULATION AGENT.
(a) The Trust appoints the Indenture Trustee as Calculation Agent,
and the Indenture Trustee accepts such appointment.
(b) The relevant Calculation Agent shall perform all functions and
obligations imposed on such Calculation Agent by or pursuant to
the Indenture, and a Note Certificate or Supplemental Indenture.
(c) Each Calculation Agent, excluding the Indenture Trustee, shall
forward to the Trust at least monthly a report providing details
with respect to the performance of its functions and obligations
with respect to the Notes which shall include dates and amounts
of forthcoming payments with respect to the Notes.
(d) The relevant Calculation Agent shall, upon the request of any
relevant Holder of the Notes, provide the interest rate then in
effect and, if determined, the interest rate that will become
effective as a result of a determination made for the next
succeeding Interest Reset Date with respect to the Notes.
(e) All determinations of interest by the Calculation Agent shall, in
the absence of manifest errors, be conclusive for all purposes
and binding on the Holders of the Notes.
(f) The Trust shall pay the compensation of each Calculation Agent at
such rates as shall be agreed upon in writing by the Trust and
the relevant Calculation Agent from time to time and shall
reimburse each Calculation Agent for reasonable expenses properly
incurred by such Calculation Agent in connection with the
performance of its duties upon receipt of such invoices as the
Trust shall reasonably require. The Trust also agrees to
indemnify each Calculation Agent for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of its duties
under the Indenture, including the costs and expenses of
defending itself against or investigating any claim of liability
in connection with the exercise or performance of any of its
powers or duties under the Indenture.
(g) Subject as provided below, each Calculation Agent may at any time
resign as Calculation Agent by giving not less than 60 days'
written notice to the Trust and the Indenture Trustee (unless the
Indenture Trustee is such Calculation Agent) of such intention on
its part, specifying the date on which its resignation shall
become effective. Except as provided below, the Trust may remove
a Calculation Agent by giving not less than 20 days' written
notice specifying such removal and the date when it shall become
effective. Any such resignation or removal shall take effect
upon:
30
(i) the appointment by the Trust of a successor Calculation
Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent,
PROVIDED that with respect to any Calculation Agent who fails
duly to establish the interest rate or amount for any Interest
Reset Period, any such removal will take effect immediately upon
such appointment of, and acceptance thereof by, a successor
Calculation Agent approved by the Indenture Trustee (unless the
Indenture Trustee is such Calculation Agent), in which event
notice of such appointment shall be given to each Holder of the
Notes as soon as practicable thereafter. The Trust agrees with
each Calculation Agent that if, by the day falling 10 days before
the expiration of any notice given pursuant to this Section
4.5(g), the Trust has not appointed a replacement Calculation
Agent, then the Calculation Agent shall be entitled, on behalf of
the Trust, to appoint in its place a reputable financial
institution of good standing reasonably acceptable to the Trust
and the Indenture Trustee (unless the Indenture Trustee is such
Calculation Agent); PROVIDED, HOWEVER, that notwithstanding the
foregoing, the resignation or removal of the relevant Calculation
Agent shall not be effective unless, upon the expiration of the
notice given pursuant to this Section 4.5(g), the successor
Calculation Agent shall have accepted its appointment. Upon its
resignation or removal becoming effective, the retiring
Calculation Agent shall be entitled to the payment of its
compensation and reimbursement of all expenses incurred by such
retiring Calculation Agent pursuant to Section 4.5(f) up to the
effective date of such resignation or removal.
(h) If at any time a Calculation Agent shall resign or be removed, or
shall become incapable of acting with respect to the Notes, or
shall be adjudged as bankrupt or insolvent, or a receiver or
liquidator of such Calculation Agent or of its property shall be
appointed, or any public officer shall take charge or control of
such Calculation Agent or its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then a successor
Calculation Agent shall be appointed by the Trust by an
instrument in writing filed with the successor Calculation Agent.
Upon any such appointment of, and the acceptance of such
appointment by, a successor Calculation Agent and (except in
cases of removal for failure to establish the amount of interest)
the giving of notice to each Holder of the Notes, the retiring
Calculation Agent shall cease to be Calculation Agent under the
Indenture.
(i) Any successor Calculation Agent appointed under the Indenture
shall execute and deliver to its predecessor, the Trust and the
Indenture Trustee (unless the Indenture Trustee is such
Calculation Agent) a reasonably acceptable instrument, accepting
such appointment under the Indenture, and thereupon such
successor Calculation Agent, without any further act,
31
deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as a
Calculation Agent under the Indenture, and such predecessor, upon
payment of any amounts due pursuant to Section 4.5(f) and unpaid,
shall thereupon become obliged to transfer and deliver, and such
successor Calculation Agent shall be entitled to receive, copies
of any relevant records maintained by such predecessor
Calculation Agent.
(j) Any corporation into which a Calculation Agent may be merged or
converted or with which it may be consolidated or any corporation
resulting from any merger, conversion or consolidation to which
such Calculation Agent shall be a party, or a corporation
succeeding to all or substantially all of the paying agency
business of such Calculation Agent shall be a successor
Calculation Agent under the Indenture without the execution or
filing of any paper or any further act on the part of any of the
parties hereto, anything in the Indenture to the contrary
notwithstanding. At least 30 days' prior notice of any such
merger, conversion or consolidation shall be given to the Trust
and the Indenture Trustee (unless the Indenture Trustee is such
Calculation Agent).
SECTION 4.6 CERTIFICATE TO INDENTURE TRUSTEE. The Trust will furnish to
the Indenture Trustee on or before - in each year (beginning with -) a brief
certificate (which need not comply with Section 13.5) as to its knowledge of the
Trust's compliance with all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of grace or requirement
of notice provided under the Indenture).
SECTION 4.7 NEGATIVE COVENANTS. So long as any Notes are Outstanding,
the Trust will not, except as otherwise expressly permitted under the Indenture
or under the Trust Agreement:
(i) sell, transfer, exchange, assign, lease, convey or
otherwise dispose of any of its assets (whenever
acquired), including, without limitation, any portion of
the Collateral securing its Obligations under the Notes
and the Indenture;
(ii) engage in any business or activity other than in
connection with, or relating to the execution and
delivery of, and the performance of its obligations
under, the Trust Agreement, the Indenture, the
Administrative Services Agreement, the Distribution
Agreement, the Support and Expenses Agreement, the Terms
Agreement and each Funding Agreement; the issuance and
sale of any Notes pursuant to the Indenture; and the
transactions contemplated by, and the activities
necessary or incidental to, any of the foregoing;
32
(iii) incur, directly or indirectly, any Debt except for the
Notes or as otherwise contemplated under the Indenture or
under the Trust Agreement;
(iv) (A) permit the validity or effectiveness of the Indenture
or the Security Interest securing the Notes to be
impaired, or permit such Security Interest to be amended,
hypothecated, subordinated, terminated or discharged, (B)
permit any Person to be released from any covenants or
obligations under any Funding Agreement securing the
Notes, except as expressly permitted thereunder, under
the Indenture, the Trust Agreement, or each applicable
Funding Agreement, (C) create, incur, assume, or permit
any Lien or other encumbrance (other than the Security
Interests securing the Notes) on any of its properties or
assets (whenever acquired), or any interest therein or
the proceeds thereof, or (D) permit a lien with respect
to the Collateral not to constitute a valid first
priority perfected security interest in the Collateral
securing the Notes;
(v) amend, modify or fail to comply with any material
provision of the Trust Agreement, except for any
amendment or modification of the Trust Agreement
expressly permitted thereunder or under the Indenture or
the relevant Funding Agreement(s);
(vi) own any subsidiary or lend or advance any funds to, or
make any investment in, any Person, except for (A) the
investment of any funds of the Trust in the Funding Note
and (B) the investment of any funds of the Trust held by
the Indenture Trustee, a Paying Agent, the Delaware
Trustee or the Administrator as provided in the Indenture
or the Trust Agreement;
(vii) directly or indirectly declare or pay a distribution or
make any distribution or other payment, or redeem or
otherwise acquire or retire for value any securities
other than the Notes, PROVIDED that the Trust may declare
or pay a distribution or make any distribution or other
payment to the Trust Beneficial Owner in compliance with
the Trust Agreement if the Trust has paid or made
provision for the payment of all amounts due to be paid
on the Notes, and pay all of its debt, liabilities,
obligations and expenses, the payment of which is
provided for under the Support and Expenses Agreement;
(viii) become required to register as an "investment company"
under and as such term is defined in the Investment
Company Act of 1940, as amended;
(ix) enter into any transaction of merger or consolidation, or
liquidate or dissolve itself (or, to the fullest extent
permissible by law, suffer
33
any liquidation or dissolution), or acquire by purchase
or otherwise all or substantially all the business or
assets of, or any stock or other evidence of beneficial
ownership of, any Person;
(x) take any action that would cause the Trust not to be
either ignored or treated as a grantor trust for United
States Federal income tax purposes;
(xi) issue any Notes unless the Funding Agreement Provider has
affirmed in writing to the Trust that it has made changes
to its books and records to reflect the grant of a
security interest in, and the making of an assignment for
collateral purposes of, the relevant Funding Agreement(s)
by the Trust to the Indenture Trustee in accordance with
the terms of such Funding Agreement(s) and the Indenture
and the Trust has taken such other steps as may be
necessary to cause the Security Interest in or assignment
for all collateral purposes of, the Collateral to be
perfected for purposes of the UCC or effective against
its creditors and subsequent purchasers of the Collateral
pursuant to insurance or other state laws;
(xii) make any deduction or withholding from any payment of
principal of or interest on the Notes (other than amounts
that may be required to be withheld or deducted from such
payments under the Code or any other applicable tax law)
by reason of the payment of any taxes levied or assessed
upon any portion of the Collateral except to the extent
specified in the Indenture or a Note Certificate or
Supplemental Indenture;
(xiii) have any employees other than the Delaware Trustee and
the Administrator or any other persons necessary to
conduct its business and enter into transactions
contemplated under the Indenture, the Trust Agreement,
the Administrative Services Agreement, the Distribution
Agreement, the Support and Expenses Agreement, the Terms
Agreement, the Funding Note or any Funding Agreement;
(xiv) have an interest in any bank account other than the
accounts contemplated under the Indenture, the Trust
Agreement, the Terms Agreement, the Distribution
Agreement or any Funding Agreement and those accounts
expressly permitted by the Indenture Trustee; PROVIDED
that any such further accounts or such interest of the
Trust therein shall be charged or otherwise secured in
favor of the Indenture Trustee on terms acceptable to the
Indenture Trustee;
(xv) permit any Affiliate, employee or officer of the Funding
Agreement Provider or any Agent to be a trustee of the
Trust; or
34
(xvi) commingle any of its assets with any assets of any of the
Trust's Affiliates, or guarantee any obligation of any of
the Trust's Affiliates.
SECTION 4.8 ADDITIONAL AMOUNTS.
If the Note Certificate(s) provide for the payment of Additional
Amounts, the Trust agrees to pay to the Holder of any such Note Additional
Amounts as provided in the Note Certificate(s). Whenever in the Indenture there
is mentioned, in any context, the payment of the principal of, or interest or
premium on, or in respect of, any Note or the net proceeds received on the sale
or exchange of any Note, such reference shall be deemed to include reference to
the payment of Additional Amounts provided by the terms established by the
Indenture or pursuant to the Indenture to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms, and express reference to the payment of Additional Amounts in any
provision of the Indenture shall not be construed as excluding Additional
Amounts in those provisions hereof where such express reference is not made.
If the Note Certificate(s) provide for the payment of Additional
Amounts, the Note Certificate will provide that the Trust will pay, or cause to
be paid, Additional Amounts to a Holder of Notes to compensate for any
withholding or deduction for or on account of any present or future taxes,
duties, levies, assessments or governmental charges of whatever nature imposed
or levied on payments on the Notes by or on behalf of any governmental authority
in the United States having the power to tax, so that the net amount received by
the Holder of the Notes, after giving effect to such withholding or deduction,
whether or not currently payable, will equal the amount that would have been
received under the Notes were no such deduction or withholding required;
provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge
imposed which would not have been imposed but for a Holder or
beneficial owner of one or more of the Notes, (i) having any
present or former connection with the United States, including,
without limitation, being or having been a citizen or resident
thereof, or having been present, having been incorporated in,
having engaged in a trade or business or having (or having had) a
permanent establishment or principal office therein, (ii) being a
controlled foreign corporation within the meaning of Section
957(a) of the Code related within the meaning of Section
864(d)(4) of the Code, to the Funding Agreement Provider, (iii)
being a bank for United States Federal income tax purposes whose
receipt of interest on the Note is described in Section
881(c)(3)(A) of the Code, (iv) being an actual or constructive
owner of 10 percent or more of the total combined voting power of
all classes of stock of the Funding Agreement Provider entitled
to vote within the meaning of Section 871(h)(3) of the Code and
Treasury Regulations promulgated thereunder or (v) being subject
to backup withholding as of the date of the purchase by the
Holder of the Notes;
35
(b) any tax, duty, levy, assessment or other governmental charge
which would not have been imposed but for the presentation of the
Note (where presentation is required) for payment on a date more
than 30 days after the date on which such payment becomes due and
payable or the date on which payment is duly provided for,
whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge
which is imposed or withheld solely by reason of the failure of
the beneficial owner or a Holder of Notes to comply with
certification, identification or information reporting
requirements concerning the nationality, residence, identity or
connection with the United States of the beneficial owner or a
Holder of Notes, if compliance is required by statute, by
regulation of the United States Treasury Department, judicial or
administrative interpretation, other law or by an applicable
income tax treaty to which the United States is a party as a
condition to exemption from such tax, duty, levy, assessment or
other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer
or similar tax, duty, levy, assessment, or similar governmental
charge;
(e) any tax, duty, levy, assessment or other governmental charge that
is payable otherwise than by withholding from payments in respect
of the Notes;
(f) any tax, duty, levy, assessment or other governmental charge
imposed by reason of payments on the Notes being treated as
contingent interest described in Section 871(h)(4) of the Code
for United States Federal income tax purposes provided that such
treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that
would not have been imposed but for an election by the Holder of
the Note, the effect of which is to make payment in respect of
the Notes subject to United States Federal income tax or
withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g)
above.
ARTICLE 5
REMEDIES OF THE INDENTURE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY; WAIVER
OF DEFAULT.
(a) "EVENT OF DEFAULT" with respect to the Notes wherever used in the
Indenture, means each of the following events which shall have
occurred and be continuing (whatever the reason for such Event of
Default and whether it shall 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):
36
(i) default in the payment when due and payable of the
principal of, or any premium on, any Note;
(ii) default in the payment, when due and payable, of any
interest on, or any Additional Amounts with respect to,
any Note and continuance of such default for a period of
five Business Days;
(iii) any "Event of Default", as such term is defined in any
Funding Agreement securing the Notes, by the Funding
Agreement Provider under such Funding Agreement;
(iv) the Trust shall fail to observe or perform any covenant
contained in the Notes or in the Indenture for a period
of 30 days after the date on which written notice
specifying such failure, stating that such notice is a
"Notice of Default" under the Indenture and demanding
that the Trust remedy the same, shall have been given by
registered or certified mail, return receipt requested,
to the Trust by the Indenture Trustee, or to the Trust
and the Indenture Trustee by the Holder or Holders of at
least 25% in aggregate principal amount of the Notes
Outstanding; or
(v) the Indenture for any reason shall cease to be in full
force and effect or shall be declared null and void, or
the Indenture Trustee shall fail to have or maintain a
validly created and first priority perfected security
interest (or the equivalent thereof) in the Collateral;
or any Person shall successfully claim, as finally
determined by a court of competent jurisdiction that any
Lien for the benefit of the Holders of the Notes and any
other Person for whose benefit the Indenture Trustee is
or will be holding the Collateral, that the Collateral is
void or is junior to any other Lien or that the
enforcement thereof is materially limited because of any
preference, fraudulent transfer, conveyance or similar
law;
(vi) an involuntary case or other proceeding shall be
commenced against the Trust seeking liquidation,
reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency, reorganization or
other similar law or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property,
and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against the Trust
under the Federal bankruptcy laws as now or hereafter in
effect;
(vii) the Trust shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any
bankruptcy, insolvency, reorganization
37
or other similar law or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property,
or shall consent to any such relief or to the appointment
of or taking possession by any such official in an
involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as
they become due, or shall take any action to authorize
any of the foregoing; or
(viii) any other Event of Default provided in any Supplemental
Indenture or in a Note Certificate.
(b) If one or more Events of Default shall have occurred and be
continuing with respect to the Notes, then, and in every such
event, unless the principal of all of the Notes shall have
already become due and payable, either the Indenture Trustee or
the Holder or Holders of not less than 25% in aggregate principal
amount of the Notes Outstanding under the Indenture by notice in
writing to the Trust (and to the Indenture Trustee if given by
such Holder or Holders), may declare the entire principal and
premium (if any) of all the Notes, any interest accrued thereon,
and any Additional Amounts due and owing and any other amounts
payable with respect thereto, to be due and payable immediately,
and upon any such declaration the same shall become immediately
due and payable; PROVIDED that, if any Event of Default specified
in Section 5.1(a)(vi) or 5.1(a)(vii) occurs with respect to the
Trust, or if any Event of Default specified in Section
5.1(a)(iii) that would cause any Funding Agreement securing the
Notes to become immediately due and payable occurs with respect
to the Funding Agreement Provider, then without any notice to the
Trust or any other act by the Indenture Trustee or any Holder of
any Notes, the entire principal and premium (if any) of all the
Notes, any interest accrued thereon, and any Additional Amounts
due and owing, and any other amounts payable with respect
thereto, shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Trust.
(c) Notwithstanding Section 5.1(b), if at any time after the
principal and premium of the Notes, any interest accrued thereon,
and any Additional Amounts due and owing and any other amounts
payable with respect thereto shall have been so declared due and
payable and before any judgment or decree for the payment of the
funds due shall have been obtained or entered as provided in the
Indenture, the Trust shall pay or shall deposit with the
Indenture Trustee a sum sufficient to pay all due and payable
interest on, and any Additional Amounts due and owing and any
other amounts payable with respect to, the Notes and the
principal and premium (if any) of any and all Notes which shall
have become due and payable otherwise than by acceleration
pursuant to Section 5.1(b) above (with interest on such principal
and, to the extent that payment of such
38
interest is enforceable under applicable law, on any overdue
interest and any other amounts payable, at the same rate as the
rate of interest specified in each Note Certificate to the date
of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, their respective
agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result
of negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal
of and premium (if any) on the Notes which shall have become due
by acceleration, shall have been cured, waived or otherwise
remedied as provided in the Indenture, then and in every such
case the Holder Representative (as defined in Section 5.8(a)
hereof), by written notice to the Trust and to the Indenture
Trustee, may waive all defaults and rescind and annul such
declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY INDENTURE TRUSTEE; INDENTURE
TRUSTEE MAY PROVE DEBT.
(a) Subject to Section 5.1(c), if any Event of Default contained in
Section 5.1(a)(i) or (ii) shall have occurred and be continuing,
the Trust will, upon demand by the Indenture Trustee, pay to the
Indenture Trustee for the benefit of each Holder of the Notes the
whole amount that then shall have become due and payable of the
principal of, any premium and interest on, and any Additional
Amounts due and owing and any other amounts payable with respect
to, the Notes (with interest to the date of such payment upon the
overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue interest
and any other amounts payable at the same rate as the rate of
interest specified in the Notes); and in addition thereto, such
further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, their
respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result
of its negligence or bad faith.
(b) Until such demand is made by the Indenture Trustee, the Trust may
pay the principal of, any premium and interest on, and any
Additional Amounts due and owing and any other amounts payable
with respect to, the Notes to the Holders, whether or not the
Notes be overdue.
(c) If the Trust shall fail to pay such amounts upon such demand, the
Indenture Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or
39
in equity for the collection of the sums so due and unpaid, and
may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against
the Trust or other obligor upon the Notes and collect in the
manner provided by law out of the property of the Trust or other
obligor upon the Notes, wherever the funds adjudged or decreed to
be payable are situated. If there shall be pending proceedings
relative to the Trust or any other obligor upon the Notes under
Title 11 of the United States Code or any other applicable
Federal or state bankruptcy, insolvency or other similar law, or
if a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Trust or
its property or such other obligor, or in case of any other
comparable judicial proceedings relative to the Trust or other
obligor upon the Notes, or to the creditors or property of the
Trust or such other obligor, the Indenture Trustee, irrespective
of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made any
demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or
otherwise:
(i) to file such proofs of a claim or claims and to file such
other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation
to the Indenture Trustee and each predecessor Indenture
Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee,
except as those adjudicated in a court of competent
jurisdiction to be the result of any such Indenture
Trustee's negligence or bad faith) and of the Holders
allowed in any judicial proceedings relative to the Trust
or other obligor upon the Notes, or to the creditors or
property of the Trust or such other obligor,
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Notes in any
election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or Person performing
similar functions in comparable proceedings, and
(iii) to collect and receive any funds or other property
payable or deliverable on any such claims, and to
distribute all amounts received with respect to the
claims of each Holder and of the Indenture Trustee on
each Holder's behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby
authorized by each Holder to make payments to the
Indenture
40
Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to any
Holder, to pay to the Indenture Trustee such amounts as
shall be sufficient to cover reasonable compensation to
the Indenture Trustee, each predecessor Indenture Trustee
and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as those adjudicated
in a court of competent jurisdiction to be the result of
any such Indenture Trustee's negligence or bad faith.
(d) Nothing contained in the Indenture shall be deemed to authorize
the Indenture Trustee to authorize or consent to or vote for or
accept or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof, or to authorize
the Indenture Trustee to vote in respect of the claim of any
Holder in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under the Indenture,
or under any of the Notes, may be enforced by the Indenture
Trustee without the possession of any of the Notes or the
production thereof on any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the
Indenture Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the
Indenture Trustee, each predecessor Indenture Trustee and their
respective agents and attorneys, shall be for the ratable benefit
of each Holder.
(f) In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of the
Indenture to which the Indenture Trustee shall be a party) the
Indenture Trustee shall be held to represent every Holder of the
Notes, and it shall not be necessary to make any Holder of the
Notes party to any such proceedings.
SECTION 5.3 APPLICATION OF PROCEEDS.
(a) Any funds collected by the Indenture Trustee following an Event
of Default pursuant to this Article or otherwise under the
Indenture and any applicable Supplemental Indenture in respect of
the Notes shall be applied in the following order at the date or
dates fixed by the Indenture Trustee and, in case of the
distribution of such funds on account of principal, any premium
and interest and any Additional Amounts, upon presentation of the
Note Certificate or Note Certificates representing the Notes and
the notation thereon of the payment if only partially paid or
upon the surrender thereof if fully paid:
41
FIRST: To the payment of costs and expenses, including reasonable
compensation to the Indenture Trustee and each predecessor Indenture
Trustee and their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and
each predecessor Indenture Trustee except as those adjudicated in a court
of competent jurisdiction to be the result of any such Indenture Trustee's
negligence or bad faith, in an aggregate amount of no more than $250,000 to
the extent not paid pursuant to the Support Agreement;
SECOND: To the payment of principal, any premium and interest,
any Additional Amounts and any other amounts then due and owing on the
Notes, ratably, without preference or priority of any kind, according to
the aggregate principal amounts due and payable on the Notes;
THIRD: To the payment of any other Obligations then due and owing
with respect to the Notes, ratably, without preference or priority of any
kind; and
FOURTH: To the payment of any remaining balance to the Trust.
(b) Any funds collected by the Indenture Trustee where no Event of
Default exists pursuant to Article 5 or otherwise under the
Indenture and any applicable Supplemental Indenture in respect of
the Notes shall be applied in the following order at the date or
dates fixed by the Indenture Trustee and, in case of the
distribution of such funds on account of principal, any premium
and interest, and any Additional Amounts, upon presentation, if
applicable, of the Note Certificate or Note Certificates
representing the Notes and the notation thereon of the payment if
only partially paid or upon the surrender thereof if fully paid:
FIRST: To the payment of principal, any premium and interest, any
Additional Amounts, and any other amounts then due and owing on the Notes,
ratably, without preference or priority of any kind, according to the
aggregate principal amounts due and payable on the Notes;
SECOND: To the payment of any other Obligations then due and
owing with respect to the Notes, ratably, without preference or priority of
any kind; and
THIRD: To the payment of any remaining balance to the Trust.
SECTION 5.4 SUITS FOR ENFORCEMENT. If an Event of Default has occurred,
has not been waived and is continuing, the Indenture Trustee may in its
discretion proceed to protect and enforce the rights vested in it by the
Indenture by such appropriate judicial proceedings as the Indenture Trustee
shall deem most effectual to protect and enforce any of such rights, either at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in the Indenture or in aid of
the exercise of any power granted in the Indenture or to enforce any other legal
or equitable right vested in the Indenture Trustee by the Indenture or by law.
42
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. If the
Indenture Trustee shall have proceeded to enforce any right under the Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Indenture Trustee, then and in
every such case the Trust and the Indenture Trustee shall be restored
respectively to their former positions and rights under the Indenture, and all
rights, remedies and powers of the Trust, the Indenture Trustee and each Holder
shall continue as though no such proceedings had been taken.
SECTION 5.6 LIMITATIONS ON SUITS BY HOLDERS. No Holder of any Note shall
have any right by virtue or by availing of any provision of the Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to the Indenture, or for the appointment
of a trustee, receiver, liquidator, custodian or other similar official or for
any other remedy under the Indenture, unless:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Holder or Holders of Notes representing not less than
25% of the aggregate principal amount of the Outstanding
notes of such series shall have made written request to
the Indenture Trustee to institute proceedings in respect
of such Event of Default in its own name as the Indenture
Trustee;
(iii) such Holder or Holders have offered to the Indenture
Trustee indemnity or security satisfactory to it against
the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have
failed to institute any such action or proceedings; and
(v) no direction inconsistent with such written request shall
have been given to the Indenture Trustee during such
60-day period by the Holder or Holders of Notes
representing at least 66?% of the aggregate principal
amount of the Notes then Outstanding;
it being understood and intended, and being expressly covenanted by each Holder
of a Note with each other Holder of a Note and the Indenture Trustee, that no
Holder or Holders of Notes shall have any right in any manner whatever by virtue
of, or by availing of, any provision of the Indenture to affect, disturb or
prejudice the rights of any other Holder of any Note, or to obtain or seek to
obtain priority over or preference to any other Holder of any Note or to enforce
any right under the Indenture, except in the manner provided herein and for the
equal, ratable and common benefit of all the Holders of the Notes. For the
protection and enforcement of the provisions of this Section, each Holder and
the Indenture Trustee shall be entitled to such relief as can be given either at
law or in equity.
Notwithstanding any other provisions in the Indenture, however, the right
of any Holder of any Note, which is absolute and unconditional, to receive
payment of the principal of (and
43
premium, if any), and interest on, if any, and Additional Amounts with respect
to, if any, such Note, on or after the respective due dates expressed in such
Note, or to institute suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 5.7 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER
OF DEFAULT.
(a) Except as provided in Section 2.7, no right or remedy in the
Indenture conferred upon or reserved to the Indenture Trustee or
to any Holder 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 under the Indenture or existing at law or in equity
or otherwise. The assertion or employment of any right or remedy
under the Indenture, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right
or remedy.
(b) No delay or omission of the Indenture Trustee or of any Holder of
any Note to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any
such right or power or shall be construed to be a waiver of any
such Event of Default or an acquiescence therein; and, subject to
Section 5.6, every power and remedy given by the Indenture or by
law to the Indenture Trustee or to any Holder may be exercised
from time to time, and as often as shall be deemed expedient, by
the Indenture Trustee or by such Holder.
SECTION 5.8 CONTROL BY THE HOLDERS.
(a) The Holders of a majority in aggregate principal amount of the
Notes at the time Outstanding shall have the right to elect a
holder representative (the "HOLDER REPRESENTATIVE") who shall
have binding authority upon all the Holders and who shall direct
the time, method, and place of conducting any proceeding for any
remedy available to the Indenture Trustee, or exercising any
trust or power conferred on the Indenture Trustee by the
Indenture, PROVIDED that:
(i) such direction shall not be otherwise than in accordance
with law and the provisions of the Indenture; and
(ii) subject to the provisions of Section 6.1, the Indenture
Trustee shall have the right to decline to follow any
such direction if the Indenture Trustee, being advised by
counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Indenture
Trustee in good faith by its board of directors, the
executive committee, or a trust committee of directors or
Responsible Officers of the Indenture Trustee shall
determine that
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the action or proceedings so directed would involve the
Indenture Trustee in personal liability.
(b) Nothing in the Indenture shall impair the right of the Indenture
Trustee in its discretion to take any action deemed proper by the
Indenture Trustee and which is not inconsistent with such
direction by the Holders.
SECTION 5.9 WAIVER OF PAST DEFAULTS. Prior to the declaration of the
maturity of the Notes as provided in Section 5.1, the Holder Representative may
on behalf of the Holders of all the Notes waive any past default or Event of
Default under the Indenture and its consequences, except a default:
(i) in the payment of principal of, any premium or interest
on, or any Additional Amounts with respect to, any of the
Notes; or
(ii) in respect of a covenant or provision of the Indenture
which cannot be modified or amended without the consent
of the Holder of each Note.
Upon any such waiver, such default shall cease to exist and be deemed to have
been cured and not to have occurred, and any Event of Default arising therefrom
shall be deemed to have been cured, and not to have occurred for every purpose
of the Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
ARTICLE 6
THE INDENTURE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except if an Event of Default has occurred and is continuing (and
it has not been cured or waived), the Indenture Trustee
undertakes to perform such duties and only such duties with
respect to such Notes as are specifically set forth in the
Indenture. No implied covenants or obligations shall be read into
the Indenture against the Indenture Trustee.
(b) If an Event of Default has occurred and is continuing (and it has
not been cured or waived), the Indenture Trustee shall exercise
such of the rights and powers with respect to the Notes vested in
it by the Indenture, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(c) No provision of the Indenture shall be construed to relieve the
Indenture Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct,
except that:
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(i) this subsection (c) shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Indenture Trustee and conforming to the requirements of
the Indenture unless a Responsible Officer of the
Indenture Trustee has actual knowledge that such
statements or opinions are false; provided that the
Indenture Trustee must examine such certificates and
opinions to determine whether they conform to the
requirements of the Indenture;
(iii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith by any Responsible Officer
of the Indenture Trustee, unless it is proved that the
Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iv) the Indenture Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holder
Representative relating to the time, method and place of
conducting any proceeding for any remedy available to the
Indenture Trustee, or exercising any trust or power
conferred upon the Indenture Trustee, under the Indenture
with respect to the Notes; and
(v) no provision of the Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any
of its duties under the Indenture, or in the exercise of
any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or
adequate indemnity against such liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
the Indenture relating to the conduct or affecting the liability
of or affording protection to the Indenture Trustee shall be
subject to the provisions of this Section.
SECTION 6.2 CERTAIN RIGHTS OF THE INDENTURE TRUSTEE. Subject to Section
6.1:
(a) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
46
(b) any request, direction, order or demand of the Trust mentioned in
the Indenture shall be sufficiently evidenced by a Trust
Certificate (unless other evidence in respect thereof be
specifically prescribed in the Indenture);
(c) the Indenture Trustee may consult with counsel and any 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 to be taken by it under the Indenture in good
faith and in reliance on such advice or Opinion of Counsel;
(d) the Indenture Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by the Indenture at the
request, order or direction of any Holder Representative pursuant
to the provisions of the Indenture, unless such Holder
Representative shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request, order or direction;
(e) whenever in the administration of the Indenture the Indenture
Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting
any action under the Indenture, such matter (unless other
evidence in respect thereof be specifically prescribed in the
Indenture) may, in the absence of negligence or bad faith on its
part, be deemed to be conclusively proved and established by a
Trust Certificate delivered to the Indenture Trustee;
(f) the Indenture 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
the Indenture;
(g) the Indenture 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, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless
requested in writing so to do by the Holder Representative;
PROVIDED that, if the payment within a reasonable time to the
Indenture Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the
opinion of the Indenture Trustee, not reasonably assured to the
Indenture Trustee by the security afforded to it by the terms of
the Indenture, the Indenture Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination
shall be paid by the Trust or, if paid by the Indenture Trustee
or any predecessor trustee, shall be repaid by the Trust upon
demand; and
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(h) the Indenture Trustee may execute any of the trusts or powers
under the Indenture or perform any duties under the Indenture
either directly or by or through agents or attorneys not
regularly in its employ and the Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of any
such agent or attorney appointed with due care by it under the
Indenture.
SECTION 6.3 NOT RESPONSIBLE FOR RECITALS, VALIDITY OF THE NOTES OR
APPLICATION OF THE PROCEEDS. The recitals contained in the Indenture and in the
Notes, except the Indenture Trustee's certificates of authentication, shall be
taken as the statements of the Trust, and the Indenture Trustee assumes no
responsibility for the correctness of the same. The Indenture Trustee makes no
representation as to the validity or sufficiency of the Indenture or of the
Notes, or of any Funding Agreement, or of the Collateral. The Indenture Trustee
shall not be accountable for the use or application by the Trust of any of the
Notes, the Funding Agreement or of the proceeds thereof.
SECTION 6.4 MAY HOLD NOTES; COLLECTIONS, ETC. The Indenture Trustee or
any agent of the Trust or the Indenture Trustee, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it would
have if it were not the Indenture Trustee or such agent and, subject to Section
6.7 and Section 311(a) of the Trust Indenture Act, may otherwise deal with the
Trust, the Administrator, the Funding Agreement Provider and any other
interested party, and receive, collect, hold and retain collections from the
Trust with the same rights it would have if it were not the Indenture Trustee or
such agent.
SECTION 6.5 FUNDS HELD BY INDENTURE TRUSTEE. Subject to the provisions
of Section 11.4, all funds received by the Indenture Trustee shall, until used
or applied as provided in the Indenture, be held in trust for the purposes for
which they were received. The Indenture Trustee (and each of its agents and
Affiliates) shall deposit all cash amounts received by it (or any such agents or
Affiliates) that are derived from the Collateral for the benefit of the Holders
of Notes in a segregated account maintained or controlled by the Indenture
Trustee, consistent with the rating of the Outstanding Notes. Neither the
Indenture Trustee nor any agent of the Trust or the Indenture Trustee shall be
under any liability for interest on any funds received by it under the
Indenture.
SECTION 6.6 COMPENSATION; REIMBURSEMENT; INDEMNIFICATION.
(a) The Trust covenants and agrees:
(i) to pay to the Indenture Trustee from time to time, and
the Indenture Trustee shall be entitled to, reasonable
compensation for all services rendered by it under the
Indenture (which compensation shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(ii) except as otherwise provided in the Indenture, to pay or
reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred
or made by the Indenture
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Trustee in accordance with any provision of the Indenture
(including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may arise from
its negligence or bad faith; and
(iii) to indemnify the Indenture Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration
of the Indenture or the trusts under the Indenture and
its duties under the Indenture, including the costs and
expenses of defending itself against or investigating any
claim of liability in connection with the exercise or
performance of any of its powers or duties under the
Indenture.
(b) The obligations of the Trust under this Section to compensate and
indemnify the Indenture Trustee and to pay or reimburse the
Indenture Trustee for expenses, disbursements and advances shall
constitute additional indebtedness under the Indenture and shall
survive the satisfaction and discharge of the Indenture and any
resignation or removal of the Indenture Trustee.
SECTION 6.7 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
(a) There shall at all times be an Indenture Trustee under the
Indenture which shall:
(i) be a national banking association or a banking
corporation authorized under its laws of incorporation
and the laws of the jurisdiction in which it administers
the Indenture and any Supplemental Indenture to exercise
corporate trust powers, having an aggregate capital,
surplus of at least $50,000,000; provided that if such
banking corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of
its Federal, State or other governmental supervisor, then
for the purposes of this Section, the aggregate capital,
surplus and undivided profits of such banking corporation
shall be deemed to be its aggregate capital, surplus and
undivided profits as set forth in its most recent report
of condition so published;
(ii) not be affiliated (as such term is defined in Rule 405
under the Securities Act) with the Trust or with any
Person involved in the organization or operation of the
Trust; and
(iii) not offer or provide credit or credit enhancement to the
Trust.
(b) If at any time the Indenture Trustee shall cease to be eligible
in accordance with the provisions of Section 6.7(a) or the
requirements of Section 310 of
49
the Trust Indenture Act, the Indenture Trustee shall resign
immediately in the manner and with the effect specified in
Section 6.8.
SECTION 6.8 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) The Indenture Trustee may at any time resign by giving not less
than 90 days' prior written notice of resignation to the Trust
and to the Holders of Notes as provided in the Indenture. Upon
receiving such notice of resignation, the Trust shall promptly
cause a successor trustee with respect to the applicable series
to be appointed by written instrument in duplicate, executed by
the Trust, one copy of which instrument shall be delivered to the
resigning trustee and one copy to the successor indenture
trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a
successor indenture trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) If at any time:
(i) the Indenture Trustee shall cease to be eligible in
accordance with the provisions of Section 6.7(a) or the
requirements of Section 310(a) of the Trust Indenture Act
or any applicable Supplemental Indenture and shall fail
to resign pursuant to Section 6.7(b) or following written
request therefor by the Trust or by any such Holder
pursuant to Section 6.8(c);
(ii) the Indenture Trustee shall become incapable of acting
with respect to the Notes, or shall be adjudged as
bankrupt or insolvent, or a receiver or liquidator of the
Indenture Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the
Indenture Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
or
(iii) the Indenture Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the
Trust Indenture Act with respect to the Notes after
written request therefor by the Trust or any Holder of a
Note who has been a bona fide Holder of a Note for at
least six months;
then, in any such case, except during the existence of an Event of Default, the
Trust may remove the Indenture Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Indenture Trustee so removed and one copy to the successor
trustee.
(c) In addition to the right of petition given to the resigning
trustee and the right of removal given to the Trust under
Sections 6.8(a) and 6.8(b),
50
respectively, any Holder who has been a Holder of Notes for at
least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction
for the appointment of a successor trustee or the removal of the
Indenture Trustee and the appointment of a successor trustee, as
the case may be. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a successor
trustee or remove the Indenture Trustee and appoint a successor
trustee, as the case may be.
(d) The Holder Representative may at any time remove the Indenture
Trustee and appoint a successor trustee by delivering to the
Indenture Trustee so removed, to the successor trustee so
appointed and to the Trust the evidence provided for in Section
8.1 of the action in that regard taken by a Holder.
(e) Any resignation or removal of the Indenture Trustee and any
appointment of a successor trustee pursuant to any of the
provisions of this Section 6.8 shall only become effective upon
acceptance of appointment by the successor trustee as provided in
Section 6.9.
SECTION 6.9 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.
(a) Every successor trustee appointed as provided in Section 6.8
shall execute, acknowledge and deliver to the Trust and to its
predecessor indenture trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
predecessor indenture trustee shall become effective and such
successor indenture trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties
and obligations of its predecessor under the Indenture, with like
effect as if originally named as indenture trustee under the
Indenture; but, nevertheless, on the written request of the Trust
or of the successor indenture trustee, upon payment of its
charges then unpaid, the indenture trustee ceasing to act shall,
subject to Section 11.4, pay over to the successor indenture
trustee all funds at the time held by it under the Indenture and
shall execute and deliver an instrument transferring to such
successor indenture trustee all such rights, powers, duties and
obligations. Upon request of any such successor indenture
trustee, the Trust shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to
such successor indenture trustee all such rights and powers.
Subject to the Lien created under the Indenture, any indenture
trustee ceasing to act shall, nevertheless, retain a claim upon
all property or funds held or collected by such indenture trustee
to secure any amounts then due it pursuant to the provisions of
Section 6.6.
(b) Upon acceptance of appointment by a successor Indenture Trustee
as provided in this Section 6.9, the Trust shall notify each
Holder of any Note and each rating agency then rating any Notes
at the request of the Trust. If
51
the acceptance of appointment is substantially contemporaneous
with the resignation, then the notice called for by the preceding
sentence may be combined with the notice called for by Section
6.8. If the Trust fails to make such notice within 10 days after
acceptance of appointment by the successor Indenture Trustee, the
successor Indenture Trustee shall cause such notice to be mailed
at the expense of the Trust.
SECTION 6.10 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
OF INDENTURE TRUSTEE.
(a) Any corporation into which the Indenture 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 Indenture Trustee shall be a party, or
any corporation succeeding to all or substantially all of the
corporate trust business of the Indenture Trustee, shall be the
successor of the Indenture Trustee under the Indenture, PROVIDED
that such corporation shall be eligible under the provisions of
Section 6.7, without the execution or filing of any paper or any
further act on the part of any of the parties to the Indenture,
anything in the Indenture to the contrary notwithstanding.
(b) In case at the time such successor to the Indenture Trustee shall
succeed to the trusts created by the Indenture any of the Notes
shall have been authenticated but not delivered, any such
successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor Indenture Trustee and deliver
such Notes so authenticated; and, in case at that time any of the
Notes shall not have been authenticated, any successor to the
Indenture Trustee may authenticate such Notes either in the name
of any predecessor under the Indenture or in the name of the
successor Indenture Trustee; and in all such cases such
certificate shall have the full force; PROVIDED, that the right
to adopt the certificate of authentication of any predecessor
Indenture Trustee or to authenticate Notes in the name of any
predecessor Indenture Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 6.11 LIMITATIONS ON RIGHTS OF INDENTURE TRUSTEE AS CREDITOR. The
Indenture Trustee shall comply with Section 311(a) of the Trust Indenture Act.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY INDENTURE TRUSTEE AND TRUST
SECTION 7.1 TRUST TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the Trust
shall furnish or cause to be furnished to the Indenture Trustee:
(a) semi-annually not later than June 30 and December 31 of the year
or upon such other dates as are set forth in or pursuant to a
Note Certificate or
52
Supplemental Indenture, a list, in each case in such form as the
Indenture Trustee may reasonably require, of the names and
addresses of Holders as of the applicable date, and
(b) at such other times as the Indenture Trustee may request in
writing, within 30 days after the receipt by the Trust 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 so long as the Indenture Trustee is the Registrar no
such list shall be required to be furnished.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
The Indenture Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act. Every Holder of Notes, by
receiving and holding the same, agrees with the Trust and the Indenture Trustee
that neither the Trust, the Indenture Trustee, any Paying Agent or any Registrar
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Notes in accordance with Section
312(c) of the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Indenture Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 7.3 REPORTS BY INDENTURE TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 following the issuance of Notes, if required by
Section 313(a) of the Trust Indenture Act, the Indenture Trustee
shall transmit, pursuant to Section 313(c) of the Trust Indenture
Act, a brief report dated as of May 15 with respect to any of the
events specified in Section 313(a) of the Trust Indenture Act
which may have occurred since the later of the immediately
preceding May 15 and the date of the Indenture.
(b) The Indenture Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the time specified
therein.
(c) The Indenture Trustee shall comply with Section 313(b) of the
Trust Indenture Act.
(d) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d)
of the Trust Indenture Act.
(e) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Indenture Trustee with
each stock exchange upon which the Notes are listed, with the
Commission and the Trust. The Trust
53
will notify the Indenture Trustee whether the Notes are listed on
any stock exchange.
(f) The Trust shall furnish to the Indenture Trustee:
(i) promptly after the execution and delivery of the
Indenture, an Opinion of Counsel either stating that, in
the opinion of such counsel, the Indenture has been
properly recorded, registered and filed to the extent
necessary to make effective the Security Interest
intended to be created by the Indenture, and reciting the
details of such action or referring to prior Opinions of
Counsel in which such details are given, or stating that,
in the opinion of such counsel, no such action is
necessary to make the Security Interest effective; and
(ii) at least annually, an Opinion of Counsel, dated as of
such date, either stating that, in the opinion of such
counsel, such action has been taken with respect to the
recording, filing, re-recording and re-filing of the
Indenture, as is necessary to maintain the Security
Interest of the Indenture and reciting the details of
such action or referring to prior Opinions of Counsel in
which such details are given, or stating that, in the
opinion of such counsel, no such action is necessary to
maintain the Security Interest.
SECTION 7.4 REPORTS BY TRUST.
Pursuant to Section 314(a) of the Trust Indenture Act, the Trust
shall:
(a) file, or cause to be filed, with the Indenture Trustee, within 15
days after the Trust or Global Funding is required to file the
same with the Commission and to the extent available to the
Trust, 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 Trust or Global Funding may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Trust is not
required to file information, documents or reports pursuant to
either of said Sections, then it shall file, or cause to be
filed, with the Indenture 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 form time to time in such rules and regulations;
PROVIDED that if, pursuant to any publicly available
interpretations of the Commission, the Trust or Global Funding
would not be required to make such filings under Section 314(a)
54
of the Trust Indenture Act, then the Trust or Global Funding
shall not be required to make such filings;
(b) file, or cause to be filed on its behalf, with the Indenture
Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Trust, with the conditions and covenants of the
Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit within 30 days after the filing thereof with the
Indenture Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by or on
behalf of the Trust pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed
from time to time by the Commission.
SECTION 7.5 COMPLIANCE CERTIFICATES AND AUDITOR'S REPORTS. No later than
- of each year, the Indenture Trustee shall (i) provide to the Funding Agreement
Provider, the Trust and Global Funding an annual statement of compliance
substantially in the form attached as Exhibit C, which shall be filed as an
exhibit to the applicable Annual Report on Form 10-K of the Trust filed under
the Exchange Act (each, a "FORM 10-K") and (ii) provide information necessary to
allow a firm of independent public accountants selected by the Administrator to
furnish to the board of directors of the Funding Agreement Provider annually an
auditor's report pursuant to Section 2.2(a)(x) of the Amended and Restated
Administrative Services Agreement.
ARTICLE 8
CONCERNING EACH HOLDER
SECTION 8.1 EVIDENCE OF ACTION TAKEN BY A HOLDER.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by the Indenture to be given or
taken by any Holder may be embodied in and evidenced (i) by any
instrument or any number of instruments of similar tenor executed
by Holders in person or by agent or proxy appointed in writing,
or (ii) by the record of the Holders of Notes voting in favor
thereof at any meeting of Holders duly called and held in
accordance with the provisions of Article 12, or (iii) by a
combination of such instrument or instruments and any such record
of such meeting of Holders. Except as otherwise expressly
provided in the Indenture, such action shall become effective
when such instrument or instruments are delivered to the
Indenture Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of the Indenture and (subject to Sections 6.1 and 6.2)
conclusive in favor of the Indenture Trustee and the Trust, if
made in the manner provided in this Article. The record of any
meeting of Holders of Notes shall be proved in the manner
provided in Section 12.6.
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(b) Any request, demand, authorization, direction, notice, consent,
waiver or other action of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Indenture Trustee or the Trust in
reliance thereon, whether or not notation of such action is made
upon such Note.
SECTION 8.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF NOTES.
(a) Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Holder or its agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed
by the Indenture Trustee or in such manner as shall be
satisfactory to the Indenture Trustee.
(b) The ownership, principal amount and CUSIP numbers of Notes shall
be proved by the Note Register or by a certificate of the
Indenture Trustee.
SECTION 8.3 VOTING RECORD DATE. The Trust may set a record date for
purposes of determining the identity of each Holder of a Note entitled to vote
or consent to any action referred to in Section 8.1, which record date may be
set at any time or from time to time by notice to the Indenture Trustee, for any
date or dates (in the case of any adjournment or resolicitation) not more than
60 days nor less than 5 days prior to the proposed date of such vote or consent,
and thereafter, notwithstanding any other provisions of the Indenture, only a
Holder of any Note on such record date shall be entitled to so vote or give such
consent or to withdraw such vote or consent.
SECTION 8.4 PERSONS DEEMED TO BE OWNERS. The Trust, the Indenture
Trustee and any agent of the Trust or the Indenture Trustee may deem and treat
the Holder of any Note of as the absolute owner of such Note (whether or not
such Note shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of, any premium on, and, subject to the provisions of the
Indenture, any interest on, and any Additional Amounts with respect to, such
Note and for all other purposes; and neither the Trust nor the Indenture Trustee
nor any agent of the Trust or the Indenture Trustee shall be affected by any
notice to the contrary. All such payments so made to any such Person, or upon
such Person's order, shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for funds payable upon
any such Note.
SECTION 8.5 NOTES OWNED BY TRUST DEEMED NOT OUTSTANDING. In determining
whether the Holders of the requisite aggregate principal amount of Notes have
concurred in any direction, consent or waiver under the Indenture, Notes which
are owned by the Trust or any other obligor on the Notes or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Trust or any other obligor on the Notes shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Indenture
Trustee shall be protected in relying on any such direction, consent or waiver
only Notes which the Indenture Trustee knows are so
56
owned shall be so disregarded. Notes so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgee's right so to act with respect
to such Notes and that the pledgee is not the Trust or any other obligor upon
the Notes or any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Trust or any other obligor on
the Notes. In case of a dispute as to such right, the advice of counsel shall be
full protection in respect of any decision made by the Indenture Trustee in
accordance with such advice. Upon request of the Indenture Trustee, the Trust
shall furnish to the Indenture Trustee promptly a Trust Certificate listing and
identifying all Notes, if any, known by the Trust to be owned or held by or for
the account of any of the above-described Persons; and, subject to Sections 6.1
and 6.2, the Indenture Trustee shall be entitled to accept such Trust
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are Outstanding for the purpose of any
such determination.
SECTION 8.6 RIGHT OF REVOCATION OF ACTION TAKEN; BINDING EFFECT OF
ACTIONS BY HOLDERS.
(a) At any time prior to (but not after) the evidencing to the
Indenture Trustee, as provided in Section 8.1, of the taking of
any action by the Holders of the percentage in aggregate
principal amount of the Notes specified in the Indenture in
connection with such action, any Holder of a Note represented by
a Note Certificate the serial number of which is shown by the
evidence to be included among the serial numbers of the Note
Certificates representing Notes the Holders of which have
consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in
this Article, revoke such action so far as concerns such Note.
(b) Any action taken by the Holders of the percentage in aggregate
principal amount of the Notes specified in the Indenture in
connection with such action shall be conclusively binding upon
the Trust, the Indenture Trustee and the Holders of all the Notes
affected by such action, of any Notes issued in exchange for any
Notes affected by such action or any Notes represented by Note
Certificates executed, authenticated and delivered in exchange
for any Note Certificate representing any Notes affected by such
action, in respective of whether or not any notation in regard of
any such action is made on any applicable Note Certificate.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
(a) The Trust and the Indenture Trustee may from time to time and at
any time enter into an indenture or indentures supplemental to
the Indenture (each, a "SUPPLEMENTAL INDENTURE") (which shall
conform to the
57
provisions of the Trust Indenture Act) for one or more of the
following purposes without the consent of any Holder:
(i) for the Trust to convey, transfer, assign, mortgage or
pledge to the Indenture Trustee as security for the Notes
any property or assets;
(ii) to add to the covenants of the Trust such further
covenants, restrictions, conditions or provisions as the
Trust and the Indenture Trustee shall consider to be for
the protection of each Holder of any Note, and to make
the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies
provided in the Indenture as set forth in the Indenture;
PROVIDED, that in respect of any such additional
covenant, restriction, condition or provision such
Supplemental Indenture may provide for a particular
period of grace after default (which period may be
shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement
upon such an Event of Default or may limit the remedies
available to the Indenture Trustee upon such an Event of
Default or may limit the right of the Holder
Representative to waive such an Event of Default;
(iii) to cure any ambiguity or to correct or supplement any
provision contained in the Indenture or in any
Supplemental Indenture or Note Certificate which may be
defective or inconsistent with any other provision
contained in the Indenture or in any Supplemental
Indenture or Note Certificate; or to make such other
provisions in regard to matters or questions arising
under the Indenture or under any Supplemental Indenture
or Note Certificate as the Trust may deem necessary or
desirable and which shall not adversely affect the
interests of the Holders of the Notes in any material
respect; or
(iv) to evidence and provide for the acceptance of appointment
under the Indenture by a successor trustee and to add to
or change any of the provisions of the Indenture as shall
be necessary to provide for or facilitate the
administration of the trusts under the Indenture by more
than one trustee.
(b) The Indenture Trustee is authorized to join with the Trust in the
execution of any such Supplemental Indenture, and to make any
further appropriate agreements and stipulations which may be
therein contained, but the Indenture Trustee shall not be
obligated to enter into any such Supplemental Indenture which
affects the Indenture Trustee's own rights, duties or immunities
under the Indenture or otherwise.
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(c) Any Supplemental Indenture authorized by the provisions of this
Section may be executed without the consent of any Holder of any
Note at the time Outstanding, notwithstanding any of the
provisions of Section 9.2.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
(a) With the consent (evidenced as provided in Article 8) of the
Holders of not less than 66?% in aggregate principal amount of
the Notes at the time Outstanding, the Trust and the Indenture
Trustee may, from time to time and at any time, enter into a
Supplemental Indenture for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions
of the Indenture or of any Supplemental Indenture or Note
Certificate or of modifying in any manner the rights of the
Holders of the Notes; PROVIDED, that no such Supplemental
Indenture shall:
(i) change the final maturity of any Note, or reduce the
principal amount thereof, or reduce the rate or extend
the time of payment of interest or any other amount
payable thereon, or impair or affect the right of any
Holder to institute suit for the payment thereof without
the consent of the Holder of each Note so affected or
modify any redemption or repayment provisions applicable
to the Notes;
(ii) permit the creation of any Lien on the Collateral or any
part thereof (other than the Security Interest in favor
of the Indenture Trustee on behalf of the Holders) or
terminate the Security Interest as to any part of the
Collateral, except as permitted by the Indenture; or
(iii) modify any of the provisions of this Section 9.2 except
to increase the aforementioned percentage of Notes
required to approve any Supplemental Indenture.
(b) Upon the request of the Trust, and upon the filing with the
Indenture Trustee of evidence of the consent of each Holder and
other documents, if any, required by Section 8.1 the Indenture
Trustee shall join with the Trust in the execution of such
Supplemental Indenture unless such Supplemental Indenture affects
the Indenture Trustee's own rights, duties or immunities under
the Indenture or otherwise, in which case the Indenture Trustee
may in its discretion, but shall not be obligated to, enter into
such Supplemental Indenture.
(c) It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed
Supplemental Indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
(d) Promptly after the execution by the Trust and the Indenture
Trustee of any Supplemental Indenture pursuant to the provisions
of this Section, the
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Indenture Trustee shall notify the Holders of each Note, as
provided in the Indenture, setting forth in general terms the
substance of such Supplemental Indenture. Any failure of the
Indenture Trustee to provide such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of
any such Supplemental Indenture.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL
INDENTURE. Any Supplemental Indenture executed pursuant to the provisions of
this Article shall comply with the Trust Indenture Act. Upon the execution of
any Supplemental Indenture pursuant to the provisions of the Indenture, the
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under the Indenture of the Indenture Trustee, the Trust and each
Holder of Notes shall thereafter be determined, exercised and enforced under the
Indenture subject in all respects to such modifications and amendments, and all
the terms and conditions of any such Supplemental Indenture shall be and be
deemed to be part of the terms and conditions of the Indenture for any and all
purposes.
SECTION 9.4 DOCUMENTS TO BE GIVEN TO INDENTURE TRUSTEE. The Indenture
Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive a Trust
Certificate and an Opinion of Counsel as conclusive evidence that any such
Supplemental Indenture complies with the applicable provisions of the Indenture.
SECTION 9.5 NOTATION ON NOTE CERTIFICATES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Any Note Certificate authenticated and delivered after the execution
of any Supplemental Indenture pursuant to the provisions of this Article may
bear a notation in form approved by the Indenture Trustee as to any matter
provided for by such Supplemental Indenture or as to any action taken at any
such meeting. If the Trust or the Indenture Trustee shall so determine, a new
Note Certificate representing Notes so modified as to conform, in the opinion of
the Indenture Trustee and the Trust, to any modification of the Indenture
contained in any such Supplemental Indenture may be prepared by the Trust,
authenticated by the Indenture Trustee and delivered in exchange for each Note
Certificate representing Notes then Outstanding.
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.1 TRUST MAY MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY UNDER
CERTAIN CIRCUMSTANCES. The Trust may not consolidate with, or merge into, any
Person (whether or not affiliated with the Trust), or sell, lease or convey the
property of the Trust as an entirety or substantially as an entirety, unless:
(a) the entity formed by such consolidation or into which the Trust
is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Trust substantially as an
entirety shall be a statutory trust formed under the laws of the
State of Delaware or a corporation or other entity organized and
existing under the laws of the United States of America or any
State or the District of Columbia, and shall expressly assume, by
a Supplemental Indenture, executed and delivered to the
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Indenture Trustee, in form satisfactory to the Indenture Trustee,
the due and punctual payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to, the
Notes and the performance of every covenant of the Indenture on
the part of the Trust to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and
be continuing;
(c) the Trust has received written confirmation from any rating
agency then rating any Notes at the request of the Trust that
such consolidation, merger, conveyance or transfer shall not
cause the rating on the then Outstanding Notes to be downgraded
or withdrawn; and
(d) the Trust has delivered to the Indenture Trustee a Trust
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such
Supplemental Indenture comply with this Article and that all
conditions precedent provided for in the Indenture relating to
such transaction have been complied with.
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED FUNDS
SECTION 11.1 SATISFACTION AND DISCHARGE OF INDENTURE. If at any time (a)
the Trust shall have paid or caused to be paid all outstanding principal of, any
premium and interest on, and any Additional Amounts and other amounts payable
with respect to, all the Notes Outstanding under the Indenture, as and when the
same shall have become due and payable, or (b) the Trust shall have delivered to
the Indenture Trustee for cancellation all Note Certificates representing Notes
theretofore authenticated (other than any Note Certificate which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.7) or (c) the Trust shall have irrevocably deposited or caused to
be deposited with the Indenture Trustee as trust funds the entire amount in cash
(other than funds repaid by the Indenture Trustee or any Paying Agent to the
Trust in accordance with Section 11.4) sufficient to pay at maturity all amounts
payable at maturity on the Notes represented by each Note Certificate not
theretofore delivered to the Indenture Trustee for cancellation, including any
outstanding principal, interest, premium, Additional Amounts and other amounts
due or to become due to such date of maturity as the case may be, and if, in any
such case, the Trust shall also pay or cause to be paid all other sums payable
under the Indenture by the Trust, then the Indenture shall cease to be of
further effect (except as to (i) rights of registration of transfer and
exchange, (ii) substitution of apparently mutilated, defaced, destroyed, lost or
stolen Note Certificates, (iii) rights of Holders to receive payments of
principal of, any premium and interest on, and any Additional Amounts and other
amounts payable with respect to, the Notes, (iv) the rights, obligations and
immunities of the Indenture Trustee under the Indenture and (v) the rights of
each Holder as beneficiary of the Indenture with respect to the property so
deposited with the Indenture Trustee payable to all or any of them), and the
Indenture Trustee, on demand of the Trust accompanied by a Trust Certificate and
an Opinion of Counsel and at the cost and expense of the Trust, shall execute
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proper instruments acknowledging such satisfaction of and discharging the
Indenture. The Trust agrees to reimburse the Indenture Trustee for any costs or
expenses thereafter reasonably and properly incurred and to compensate the
Indenture Trustee for any services thereafter reasonably and properly rendered
by the Indenture Trustee in connection with the Indenture or the Notes.
SECTION 11.2 APPLICATION BY INDENTURE TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF NOTES. Subject to Section 11.4, all funds deposited with the
Indenture Trustee pursuant to Section 11.1 shall be held in trust in accordance
with Section 6.5 and applied by it to the payment, either directly or through
any Paying Agent (including the Trust acting as its own paying agent), to each
Holder of any Note for the payment or redemption of which such funds have been
deposited with the Indenture Trustee, of all sums due and to become due thereon
for any principal, interest, premium, Additional Amounts or other amounts.
SECTION 11.3 REPAYMENT OF FUNDS HELD BY PAYING AGENT. In connection with
the satisfaction and discharge of the Indenture, all funds then held by any
Paying Agent under the provisions of the Indenture shall, upon demand of the
Trust, be repaid to the Trust or paid to the Indenture Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such funds.
SECTION 11.4 RETURN OF FUNDS HELD BY INDENTURE TRUSTEE AND PAYING AGENT.
Any funds deposited with or paid to the Indenture Trustee or any Paying Agent
for the payment of the principal of, any interest or premium on, or any
Additional Amounts or any other amounts with respect to, any Note and not
applied but remaining unclaimed for three years after the date upon which such
principal, interest, premium, Additional Amounts or any other amount shall have
become due and payable, shall, upon the written request of the Trust and unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Trust by the Indenture Trustee or such
Paying Agent, and the Holder of such Note shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Trust for any payment which such Holder may be
entitled to collect, and all liability of the Indenture Trustee or any Paying
Agent with respect to such funds shall thereupon cease.
ARTICLE 12
MEETINGS OF HOLDERS OF NOTES
SECTION 12.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Notes may be called at any time and from time to time pursuant to
this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by the Indenture to
be made, given or taken by Holders of Notes.
SECTION 12.2 CALL, NOTICE AND PLACE OF MEETINGS.
(a) Unless otherwise provided in a Note Certificate, the Indenture
Trustee may at any time call a meeting of Holders of Notes for
any purpose specified in Section 12.1, to be held at such time
and at such place in the City of New York or the city in which
the Corporate Trust Office is located. Notice of every meeting of
Holders of Notes, setting forth the
62
time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given in
the manner provided in Section 13.4, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Trust or the Holder or Holders of at
least 10% in principal amount of the Notes shall have requested
the Indenture Trustee to call a meeting of the Holders of Notes
for any purpose specified in Section 12.1, by written request
setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Indenture Trustee shall not have
made the first publication or mailing of the notice of such
meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided in
the Indenture, then the Trust or the Holder or Holders of Notes
in the amount above specified, as the case may be, may determine
the time and the place in the City of New York or the city in
which the Corporate Trust Office is located for such meeting and
may call such meeting for such purposes by giving notice thereof
as provided in Section 12.2.
SECTION 12.3 PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to vote
at any meeting of Holders of Notes, a Person shall be (a) a Holder of one or
more Notes then Outstanding, or (b) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Notes then Outstanding
by such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders of Notes shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Indenture
Trustee and its counsel and any representatives of the Trust and its counsel.
SECTION 12.4 QUORUM; ACTION.
(a) The Persons entitled to vote a majority in principal amount of
the Notes then Outstanding shall constitute a quorum for a
meeting of Holders of Notes; PROVIDED, HOWEVER, that if any
action is to be taken at such meeting with respect to a consent
or waiver which the Indenture expressly provides may be given by
the Holders of not less than 66?% in principal amount of the
Outstanding Notes, then Persons entitled to vote 66?% in
principal amount of the Outstanding Notes shall constitute a
quorum. In the absence of a quorum within 30 minutes after the
time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Notes, be dissolved. In any
other case the meeting may be adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 12.2, except that
such notice need be given only once not less than five days prior
to the date on which the meeting is
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scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Notes
which shall constitute a quorum.
(b) Except as limited by the proviso to Section 9.2(a), any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted only by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Notes; PROVIDED, HOWEVER,
that, except as limited by the proviso to Section 9.2(a), any
resolution with respect to any consent or waiver which the
Indenture expressly provides may be given by the Holders of not
less than 66?% in principal amount of the Outstanding Notes may
be adopted at a meeting or an adjourned meeting duly convened and
at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of 66?% in principal amount of the
Outstanding Notes; and PROVIDED, FURTHER, that, except as limited
by the proviso to Section 9.2(a), any resolution with respect to
any request, demand, authorization, direction, notice, consent,
waiver or other action which the Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Notes may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding
Notes.
(c) Any resolution passed or decision taken at any meeting of Holders
of Notes duly held in accordance with this Section shall be
binding on all the Holders of Notes, whether or not such Holders
were present or represented at the meeting.
SECTION 12.5 DETERMINATION OF VOTING RIGHTS; CONDUCT OF ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of the Indenture, the
Indenture Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of Notes in regard to
proof of the holding of Notes and of the appointment of proxies
and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Notes shall be proved in the
manner specified in Section 8.4 and the appointment of any proxy
shall be proved in the manner specified in Section 8.2. Such
regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 8.2 or other proof.
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(b) The Indenture Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Trust or by Holders of Notes as provided
in Section 12.2(b), in which case the Trust or the Holders of
Notes calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of
the Outstanding Notes represented at the meeting.
(c) At any meeting, each Holder of a Note or proxy shall be entitled
to one vote for each $1,000 of principal amount of Notes held or
represented by such Holder or proxy; PROVIDED, HOWEVER, that no
vote shall be cast or counted at any meeting in respect of any
Note challenged as not Outstanding and ruled by the chairman of
the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Note or
proxy.
(d) Any meeting of Holders of Notes duly called pursuant to Section
12.2 at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in principal amount
of the Outstanding Notes represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 12.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Notes shall be (a) by
written ballots on which shall be subscribed the signatures of the Holders of
Notes or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Notes held or represented by them or (b) by such
other procedures adopted by the Indenture Trustee in its discretion. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Notes shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 12.2 and, if applicable, Section 12.4.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Trust, and another to the Indenture Trustee to be preserved by the Indenture
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1 NO RECOURSE. Notwithstanding anything to the contrary
contained in the Indenture, or any relevant Note Certificate or Supplemental
Indenture, none of the Funding
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Agreement Provider, its officers, directors, affiliates, employees or agents, or
any of the Delaware Trustee, the Indenture Trustee or the Trust Beneficial
Owner, or any of their officers, directors, affiliates, employees or agents (the
"NONRECOURSE PARTIES") will be personally liable for the payment of any
principal, interest or any other sums at any time owing under the terms of the
Notes. If any Event of Default shall occur with respect to the Notes, the right
of the Holders of the Notes and the Indenture Trustee on behalf of such Holders
in connection with a claim on the Notes shall be limited solely to a proceeding
against the Collateral. Neither the Holders nor the Indenture Trustee on behalf
of the Holders will have the right to proceed against the Nonrecourse Parties to
enforce the Notes (except that to the extent they exercise their rights, if any,
to seize the relevant Funding Agreement, they may enforce the relevant Funding
Agreement against the Funding Agreement Provider) or for any deficiency judgment
remaining after foreclosure of any property included in the relevant Collateral.
It is expressly understood and agreed that nothing contained in this
Section shall in any manner or way constitute or be deemed a release of the debt
or other obligations evidenced by the Notes or otherwise affect or impair the
enforceability against the Trust of the liens, assignments, rights and the
Security Interest created by or pursuant to the Indenture, the relevant
Collateral or any other instrument or agreement evidencing, securing or relating
to the indebtedness or the obligations evidenced by the Notes. Nothing in this
Section shall preclude the Holders from foreclosing upon any property included
in the Collateral or any other rights or remedies in law or in equity against
the Trust.
SECTION 13.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND
HOLDERS. Nothing in the Indenture or in the Notes, expressed or implied, shall
give or be construed to give to any Person, other than the parties to the
Indenture and their successors and the Holders of the Notes, any legal or
equitable right, remedy or claim under the Indenture or under any covenant or
provision contained in the Indenture, all such covenants and provisions being
for the sole benefit of the parties to the Indenture and their successors and of
the Holders of the Notes.
SECTION 13.3 SUCCESSORS AND ASSIGNS OF TRUST BOUND BY INDENTURE. All the
covenants, stipulations, promises and agreements in the Indenture contained by
or in behalf of the Trust shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.4 NOTICES AND DEMANDS ON TRUST, INDENTURE TRUSTEE AND ANY
HOLDER.
(a) Except as otherwise provided by this Section, any notice or
demand which by any provision of the Indenture is required or
permitted to be given or served by the Indenture Trustee or by
any Holder of any Note to or on the Trust may be given or served
by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided in the Indenture) addressed
(until another address of the Trust is filed by the Trust with
the Indenture Trustee) to the Delaware Trustee. Any notice,
direction, request or demand by the Trust or any Holder to or
upon the Indenture Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made at
the Corporate Trust Office.
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(b) Where the Indenture provides for notice to any Holder, such
notice shall be sufficiently given (unless otherwise expressly
provided in the Indenture) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at such
Holder's last address as it appears in the Note Register. In any
case where notice to any Holder 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 any other Holder.
(c) Where the 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 any
Holder shall be filed with the Indenture Trustee, but such filing
shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
(d) If, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the
Trust and each Holder when such notice is required to be given
pursuant to any provision of the Indenture, then any manner of
giving such notice as shall be satisfactory to the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
(e) The Trust shall deliver promptly to each rating agency then
rating the Notes copies of each of the following:
(i) any repurchase of Notes pursuant to Section 3.3;
(ii) any notice of any default or Event of Default;
(iii) any notice of redemption provided by the Trust pursuant
to Section 3.1(d);
(iv) any notice of change in name, identity, organizational
structure, chief executive office, or chief place of
business of the Trust provided by the Trust pursuant to
Section 14.4(a);
(v) any Supplemental Indenture;
(vi) any resignation, removal or appointment under this
Indenture;
(vii) any amendment to any Funding Agreement; and
(viii) any other information reasonably requested by such rating
agency.
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Any such notice shall be addressed to:
Standard & Poor's Ratings Services,
a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Capital Markets
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇'▇ Investors Service Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Life Insurance Group
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address previously furnished in writing to the Trust by
the applicable rating agency.
SECTION 13.5 TRUST CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE
CONTAINED THEREIN.
(a) Except as otherwise expressly provided in the Indenture, upon any
application or demand by the Trust to the Indenture Trustee to
take any action under any of the provisions of the Indenture, the
Trust shall furnish to the Indenture Trustee a Trust Certificate
stating that all conditions precedent, if any, provided for in
the Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of the
applicable counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of the
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in the Indenture and
delivered to the Indenture Trustee with respect to compliance
with a condition or covenant provided for in the Indenture shall
include:
(i) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(ii) 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;
(iii) a statement that, in the opinion of such Person, he has
made such examination or investigation or has received
such certificates, opinions, representations or
statements of counsel or accountants
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pursuant to paragraphs (c) or (d) of this Section, as are
necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied
with.
(c) Any certificate, statement or opinion of the Trust may be based
upon a certificate or opinion of or representations by counsel,
unless the Trust knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters
information with respect to which is in the possession of the
Trust, upon the certificate, statement or opinion of or
representations by the Trust, unless such counsel knows that the
certificate, statement or opinion or representations with respect
to the matters upon which the certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
(d) Any certificate, statement or opinion of the Trust or of counsel
may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Trust, unless such
officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the
accounting matters upon which the certificate, statement or
opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are
erroneous.
(e) Any certificate or opinion of any independent firm of public
accountants filed with the Indenture Trustee shall contain a
statement that such firm is independent.
SECTION 13.6 GOVERNING LAW. Pursuant to Section 5-1401 of the General
Obligations Law of the State of New York, the Indenture and the Notes shall
(unless specified otherwise in the Note Certificate) be governed by, and
construed in accordance with, the laws of the State of New York, except as
required by mandatory provisions of law and except to the extent that the
validity or perfection of the Trust's ownership of and security interest in the
Funding Agreement(s) or remedies under the Indenture in respect thereof may be
governed by the laws of a jurisdiction other than the State of New York. All
judicial proceedings brought against the Trust or the Indenture Trustee arising
out of or relating to the Indenture, any Note or any portion of the Collateral
or other assets of the Trust may be brought in any state or Federal court in the
State of New York, provided that a Note Certificate may specify other
jurisdictions as to which the Trust may consent to the nonexclusive jurisdiction
of its courts with respect to the Notes.
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SECTION 13.7 COUNTERPARTS. The 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.
SECTION 13.8 TRUST INDENTURE ACT TO CONTROL. If and to the extent that
any provision of the Indenture limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed on the Indenture
by Section 318(c) of the Trust Indenture Act (each, an "INCORPORATED
PROVISION"), such incorporated provision shall control.
SECTION 13.9 JUDGMENT CURRENCY. The Trust agrees, to the fullest extent
that it may effectively do so under applicable law, that:
(a) if for the purposes of obtaining judgment in any court it is
necessary to convert the sum due in respect of the Notes in the
Specified Currency into a currency in which a judgment will be
rendered (the "JUDGMENT CURRENCY"), the rate of exchange used
(the "REQUIRED RATE OF EXCHANGE") shall be the rate at which in
accordance with normal banking procedures the Indenture Trustee
could purchase in The City of New York the Specified Currency
with the Judgment Currency on the date on which final
unappealable judgment is entered, unless such day is not a New
York Banking Day, then, to the extent permitted by applicable
law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Indenture Trustee
could purchase in The City of New York the Specified Currency
with the Judgment Currency on the New York Banking Day preceding
the day on which final unappealable judgment is entered;
(b) its obligations under the Indenture to make payments in the
Specified Currency (i) shall not be discharged or satisfied by
any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency
other than the Specified Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Specified Currency expressed to
be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose
of recovering in the Specified Currency the amount, if any, by
which such actual receipt shall fall short of the full amount of
the Specified Currency so expressed to be payable and (iii) shall
not be affected by judgment being obtained for any other sum due
under the Indenture; and
(c) it shall indemnify the Holder or Holders of any Note against any
loss incurred as a result of any variation between:
(i) the rate of exchange at which the Specified Currency
amount is actually converted into the Judgment Currency
for the purpose of that judgment or order; and
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(ii) the Required Rate of Exchange.
For purposes of this Section, "NEW YORK BANKING DAY" means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to close.
ARTICLE 14
SECURITY INTEREST
SECTION 14.1 SECURITY INTEREST.
(a) To secure the full and punctual payment of the Obligations in
accordance with the terms of the Indenture and to secure the
performance of the Trust's obligations under the Notes and the
Indenture, the Trust pledges and collaterally assigns to and with
the Indenture Trustee for the benefit of each Holder of each Note
and any other Person for whose benefit the Indenture Trustee is
or will be holding the Collateral (the "SECURED PARTIES"), and
grants to the Indenture Trustee for the benefit of each Secured
Party, a security interest in the Collateral specified in the
Pricing Supplement as securing the Obligations with respect to
the Notes, and all of the rights and privileges of the Trust in
and to the Collateral (the "SECURITY INTEREST"), effective as of
the Original Issue Date of the Notes.
(b) It is expressly agreed that anything therein contained to the
contrary notwithstanding, the Trust shall remain liable under
each Funding Agreement to perform all the obligations assumed by
it thereunder, all in accordance with and pursuant to the terms
and provisions thereof, and the Indenture Trustee shall not have
any obligations or liabilities by reason of or arising out of the
Indenture, nor shall the Indenture Trustee be required or
obligated in any manner to perform or fulfill any obligations of
the Trust under or pursuant to such Funding Agreement or to make
any payment, to make any inquiry as to the nature or sufficiency
of any payment received by it, or, prior to the occurrence and
continuance of an Event of Default, to present or file any claim,
or to take any action to collect or enforce the payment of any
amounts that may have been assigned to it or to which it may be
entitled at any time or times.
(c) The Indenture Trustee acknowledges the grant of the Security
Interest upon the issuance of the Notes, accepts the trusts under
the Indenture in accordance with the provisions of the Indenture
and agrees to perform its duties in the Indenture to the end that
the interests of each Secured Party may be adequately and
effectively protected.
SECTION 14.2 REPRESENTATIONS AND WARRANTIES. The Trust represents and
warrants (which representations and warranties shall be deemed to have been
repeated as of the date of any Note Certificate) as follows:
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(a) The Trust owns each Funding Agreement that secures the
Obligations and all of the rest of the Collateral, free and clear
of any Liens other than the Security Interest in the Collateral.
(b) The Trust has not performed any acts which might prevent the
Indenture Trustee from enforcing any of the terms of the
Indenture or which would limit the Indenture Trustee in any such
enforcement. Other than financing statements or other similar or
equivalent documents or instruments with respect to the Security
Interest, no financing statement, mortgage, security agreement or
similar or equivalent document or instrument covering all or any
part of the Collateral is on file or of record in any
jurisdiction in which such filing or recording would be effective
to perfect a Lien on such Collateral. No Collateral is in the
possession of any Person (other than the Trust or its agent)
asserting any claim thereto or security interest therein, except
that the Indenture Trustee or its designee may have possession of
Collateral as contemplated by the Indenture.
(c) Each Security Interest constitutes a valid security interest
securing the Obligations. When (i) the financing statements shall
have been filed in the appropriate offices in Illinois, Delaware
and New York, (ii) the Indenture Trustee or its agent shall have
taken possession of each applicable Funding Agreement, (iii) the
Trust shall have pledged and collaterally assigned each
applicable Funding Agreement to the Indenture Trustee and given
written notice to the Funding Agreement Provider of each such
assignment to the Indenture Trustee and (iv) the Funding
Agreement Provider shall have given its express written consent
to such pledge and collateral assignment and affirmed in writing
that the Funding Agreement Provider has changed its books and
records to reflect such pledge and collateral assignment to the
Indenture Trustee, such Security Interest shall constitute a
first priority perfected security interest in the Collateral,
enforceable against the Trust, the Trust's creditors and any
purchaser from the Trust.
SECTION 14.3 ADDITIONAL REPRESENTATIONS AND WARRANTIES. The Trust
represents and warrants that:
(a) to the extent the creation of a security interest in any Funding
Agreement is governed by the applicable UCC, the Indenture
creates a valid security interest (as defined in the applicable
UCC) in each Funding Agreement in favor of the Indenture Trustee
for the benefit and security of the Secured Parties, which
security interest is prior to all other Liens;
(b) to the extent the UCC applies, each Funding Agreement consists of
"general intangibles," "payment intangibles" and/or "instruments"
within the meaning of the applicable UCC;
(c) subject to the grant of security interest, pledge and collateral
assignment of the Trust's estate, right, title and interest in
each Funding Agreement, the
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Trust is a party to and is the Person entitled to payment under
each Funding Agreement on the date of the Indenture free and
clear of any Lien, claim or encumbrance of any Person, other then
the Lien created under the Indenture or any Lien otherwise
permitted under the Indenture;
(d) to the extent the UCC applies, the Trust has caused or will have
caused, within ten days after the date of the Indenture, the
filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable
law in order to perfect the security interest in each Funding
Agreement granted to the Indenture Trustee for the benefit and
security of the Secured Parties under the Indenture;
(e) all original executed copies of each instrument that constitutes
or evidences each Funding Agreement have been delivered to the
Indenture Trustee or a custodian for the Indenture Trustee (the
"CUSTODIAN");
(f) where all original executed copies of each instrument that
constitutes or evidences each Funding Agreement have been
delivered to the Custodian, the Trust has received a written
acknowledgment from the Custodian that the Custodian is holding
the instruments that constitute or evidence each Funding
Agreement solely on behalf of the Indenture Trustee;
(g) other than the security interest granted to the Indenture Trustee
for the benefit and security of the Secured Parties pursuant to
the Indenture, the Trust has not pledged, assigned, sold, granted
a security interest in, or otherwise conveyed any of the Funding
Agreements;
(h) the Trust has not authorized the filing of and is not aware of
any financing statements against the Trust that include a
description of collateral covering the Funding Agreement other
than any financing statement relating to the security interest
granted to the Indenture Trustee for the benefit and security of
the Secured Parties under the Indenture or that has been
terminated;
(i) the Trust is not aware of any judgment or tax lien filings
against the Trust; and
(j) none of the instruments that constitute or evidence the Funding
Agreements has any marks or notations indicating that they have
been pledged, assigned or otherwise conveyed to any Person other
than the Indenture Trustee for the benefit and security of the
Secured Parties.
The foregoing representations and warranties shall survive the execution
and delivery of the Notes. No party to the Indenture shall waive any of the
foregoing representations and warranties. The Trust shall maintain the
perfection and priority of the security interest in each Funding Agreement.
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SECTION 14.4 FURTHER ASSURANCES; COVENANTS.
(a) The Trust will not change its name, identity or organizational
structure in any manner unless it shall have given the Indenture
Trustee at least 30 days' prior notice thereof. The Trust will
not change the location of its chief executive office or chief
place of business unless it shall have given the Indenture
Trustee at least 30 days' prior notice thereof.
(b) The Trust will, from time to time and upon advice of counsel, at
the Trust's expense, execute, deliver, file and record any
statement, assignment, instrument, document, agreement or other
paper and take any other action, (including, without limitation,
any filings of financing or continuation statements) that from
time to time may be necessary or desirable, or that the Indenture
Trustee may reasonably request, in order to create, preserve,
perfect, confirm or validate a Security Interest or to enable the
Holders of Notes to obtain the full benefits of the Indenture, or
to enable the Indenture Trustee to exercise and enforce any of
its rights, powers and remedies under the Indenture with respect
to any Collateral. To the extent permitted by applicable law, the
Trust authorizes the Indenture Trustee to execute and file
financing statements or continuation statements without the
Trust's signature appearing thereon. The Trust agrees that a
carbon, photographic, photostatic or other reproduction of the
Indenture or of a financing statement is sufficient as a
financing statement. The Trust shall pay the costs of, or
incidental to, any recording or filing of any financing or
continuation statements concerning any Collateral.
(c) If any Collateral is at any time in the possession or control of
any warehouseman, bailee or any of the Trust's agents or
processors, the Trust shall notify such warehouseman, bailee,
agent or processor of the Security Interest created by the
Indenture and to hold all such Collateral for the Indenture
Trustee's account subject to the Indenture Trustee's
instructions.
(d) The Trust will, promptly upon request, provide to the Indenture
Trustee all information and evidence it may reasonably request
concerning the Collateral to enable the Indenture Trustee to
enforce the provisions of the Indenture.
(e) Not more than six months nor less than 30 days prior to each date
on which the Trust proposes to take any action contemplated by
Section 14.4(a), the Trust shall, at its cost and expense, cause
to be delivered to the Indenture Trustee an Opinion of Counsel,
satisfactory to the Indenture Trustee, to the effect that all
financing statements and amendments or supplements thereto,
continuation statements and other documents required to be
recorded or filed in order to perfect and protect the Security
Interest for a period, specified in such Opinion of Counsel,
continuing until a date not earlier than 18 months from the date
of such Opinion of Counsel, against all creditors of and
purchasers from the Trust have been
74
filed in each filing office necessary for such purpose and that
all filing fees and taxes, if any, payable in connection with
such filings have been paid in full.
(f) From time to time upon request by the Indenture Trustee, the
Trust shall, at its cost and expense, cause to be delivered to
the Indenture Trustee an Opinion of Counsel satisfactory to the
Indenture Trustee as to such matters relating to the Security
Interest as the Indenture Trustee or the Holder Representative
may reasonably request.
SECTION 14.5 GENERAL AUTHORITY. The Trust irrevocably appoints the
Indenture Trustee its true and lawful attorney, with full power of substitution,
in the name of the Trust, the Indenture Trustee, the Holders of Notes or
otherwise, for the sole use and benefit of the Secured Parties, but at the
Trust's expense, to the extent permitted by law to exercise, at any time and
from time to time while an Event of Default has occurred and is continuing, all
or any of the following powers with respect to all or any of the Collateral:
(a) to demand, ▇▇▇ for, collect, receive and give acquittance for any
and all monies due or to become due thereon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any action
or proceeding with respect thereto,
(c) to sell, transfer, assign or otherwise deal in or with the same
or the proceeds or avails thereof, as fully and effectually as if
the Indenture Trustee were the absolute owner thereof, and
(d) to extend the time of payment of any or all thereof and to make
any allowance and other adjustments with reference thereto;
PROVIDED that the Indenture Trustee shall give the Trust not less than 10 days'
prior notice of the time and place of any sale or other intended disposition of
any of the Collateral, except any part of the Collateral which threatens to
decline speedily in value or is of a type customarily sold on a recognized
market.
SECTION 14.6 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default has
occurred and is continuing, the Indenture Trustee may exercise on behalf of the
Holders of the Notes all rights of a secured party under applicable law and, in
addition, the Indenture Trustee may, without being required to give any notice,
except as provided in the Indenture or as may be required by mandatory
provisions of law, (i) apply all cash, if any, then held by it as all or part of
the Collateral as specified in Section 5.3 and (ii) if there shall be no such
cash or if such cash shall be insufficient to pay all the Obligations in full,
sell the Collateral (including each applicable Funding Agreement) or any part
thereof at public or private sale, for cash, upon credit or for future delivery,
and at such price or prices as the Indenture Trustee may deem satisfactory. Any
Holder may be the purchaser of any or all of the Collateral so sold at any
public sale (or, if the Collateral is of a type customarily sold in a recognized
market or is of a type which is the subject of widely distributed standard price
quotations, at any private sale). The Trust will execute and deliver such
documents and take such other action as the Indenture Trustee deems
75
necessary or advisable in order that any such sale may be made in compliance
with law. Upon any such sale the Indenture Trustee shall have the right to
deliver, assign and transfer to the purchaser thereof the Collateral so sold.
Each purchaser at any such sale shall hold the Collateral so sold to it
absolutely and free from any claim or right of whatsoever kind, including any
equity or right of redemption of the Trust which may be waived, and the Trust,
to the extent permitted by law, specifically waives all rights of redemption,
stay or appraisal which it has or may have under any law. The notice (if any) of
such sale shall (A) in the case of a public sale, state the time and place fixed
for such sale, and (B) in the case of a private sale, state the day after which
such sale may be consummated. Any such public sale shall be held at such time or
times within ordinary business hours and at such place or places as the
Indenture Trustee may fix in the notice of such sale. At any such sale the
Collateral may be sold in one lot as an entirety or in separate parcels, as the
Indenture Trustee may determine. The Indenture Trustee shall not be obligated to
make any such sale pursuant to any such notice. The Indenture Trustee may,
without notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place to which the
same may be so adjourned. In the case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so sold may be
retained by the Indenture Trustee until the selling price is paid by the
purchaser thereof, but the Indenture Trustee shall not incur any liability in
the case of the failure of such purchaser to take up and pay for the Collateral
so sold and, in the case of any such failure, such Collateral may again be sold
upon like notice. The Indenture Trustee, instead of exercising the power of sale
conferred upon it in the Indenture, may proceed by a suit or suits at law or in
equity to foreclose a Security Interest and sell any Collateral, or any portion
thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
SECTION 14.7 LIMITATION ON DUTIES OF INDENTURE TRUSTEE WITH RESPECT TO
COLLATERAL. Beyond the exercise of reasonable care in the custody thereof, the
Indenture Trustee shall have no duty as to any portion of the Collateral in its
possession or control or in the possession or control of any agent or bailee or
as to the preservation of rights against prior parties or any other rights
pertaining thereto. The Indenture Trustee shall be deemed to have exercised
reasonable care in the custody of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which it accords
property it holds in its fiduciary capacity generally, and shall not be liable
or responsible for any loss or damage to any of the Collateral, or for any
diminution in the value thereof, by reason of the act or omission of any
warehouseman, carrier, forwarding agency, consignee or other agent or bailee
selected by the Indenture Trustee in good faith.
SECTION 14.8 CONCERNING THE INDENTURE TRUSTEE. In furtherance and not in
derogation of the rights, privileges and immunities of the Indenture Trustee
specified in the Indenture:
(a) the Indenture Trustee is authorized to take all such action as is
provided to be taken by it as Indenture Trustee under this
Article and all other action reasonably incidental thereto. As to
any matters not expressly provided for in this Article
(including, without limitation, the timing and methods of
realization upon any Collateral) the Indenture Trustee shall act
or refrain from acting in accordance with written instructions
from the Holder or
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Holders of the required percentage of aggregate principal amount
of Notes for any instructions or, in the absence of such
instructions, in accordance with its discretion; and
(b) the Indenture Trustee shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Security
Interest in any of the Collateral, whether impaired by operation
of law or by reason of any action or omission to act on its part
under the Indenture.
SECTION 14.9 TERMINATION OF SECURITY INTEREST. Upon the repayment in full
of all Obligations, the Security Interest shall terminate and all rights to the
Collateral shall revert to the Trust. Upon such termination of a Security
Interest, and delivery of a certificate by the Trust to such effect, the
Indenture Trustee will, at the expense of the Trust, execute and deliver to the
Trust such documents as the Trust shall reasonably request to evidence the
termination of the Security Interest.
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EXHIBIT A-1
Form of Global Security for Secured Medium Term Notes Program
A1-1
EXHIBIT A-2
Form of Definitive Security for Secured Medium Term Notes Program
A2-1
EXHIBIT A-3
Form of Global Security for Allstate Life(SM) CoreNotes(SM) Program
A3-1
EXHIBIT A-4
Form of Definitive Security for Allstate Life(SM) CoreNotes(SM) Program
A4-1
EXHIBIT B
FORM OF CERTIFICATE OF AUTHENTICATION
This Note Certificate is one of the Note Certificates representing Notes
described in the within-mentioned Indenture and is being issued in
accordance with Section 2.5(f) of the Indenture.
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL
ASSOCIATION,
as Indenture Trustee
By:
--------------------------------
Authorized Signatory
Dated:
B-1
EXHIBIT C
FORM OF ANNUAL STATEMENT OF COMPLIANCE
I [identify the certifying individual], a duly elected and acting officer
of ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association ("Indenture Trustee"), do
hereby certify on behalf of the Indenture Trustee, that:
1. I have reviewed and examined the performance by the Indenture Trustee of
the application of trust money collected by the Indenture Trustee pursuant to
Section 5.3 of the Indenture under which the Trust's notes (the "Notes") were
issued during the fiscal year ending December 31, - (the "Relevant Year"); and
2. Based upon my review and examination described in 1 above, and except as
provided in the Independent Auditor's Report, dated -, 200-, prepared by the
Trust's independent public accountants in accordance with Section 7.5 of the
Indenture, to the best of my knowledge, the application of trust money collected
by the Indenture Trustee pursuant to Section 5.3 of the Indenture was performed
in accordance with the terms of the Indenture throughout the Relevant Year.
▇.▇. ▇▇▇▇▇▇ Trust Company, National Association, as Indenture Trustee
By:
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Name:
Title:
Date:
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C-1