EXHIBIT 4.4
[FORM OF SUBORDINATED GUARANTEED INDENTURE]
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CREDIT SUISSE GROUP FINANCE (DELAWARE) LLC I
as the Company,
CREDIT SUISSE GROUP
as the Guarantor
and
JPMORGAN CHASE BANK
as Trustee
SUBORDINATED INDENTURE
Dated as of ______________, 2002
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.................................................................................1
Section 1.02. Other Definitions...........................................................................6
Section 1.03. Incorporation by Reference of Trust Indenture Act...........................................7
Section 1.04. Rules of Construction.......................................................................7
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating.............................................................................8
Section 2.02. Execution and Authentication................................................................8
Section 2.03. Amount Unlimited; Issuable in Series........................................................9
Section 2.04. Denomination and Date of Securities; Payments of Interest..................................12
Section 2.05. Registrar and Paying Agent; Agents Generally...............................................12
Section 2.06. Paying Agent to Hold Money in Trust........................................................13
Section 2.07. Transfer and Exchange......................................................................13
Section 2.08. Replacement Securities.....................................................................16
Section 2.09. Outstanding Securities.....................................................................17
Section 2.10. Temporary Securities.......................................................................17
Section 2.11. Cancellation...............................................................................18
Section 2.12. CUSIP Numbers..............................................................................18
Section 2.13. Defaulted Interest.........................................................................18
Section 2.14. Series May Include Tranches................................................................18
Section 2.15. Computation of Interest....................................................................19
Section 2.16. ERISA......................................................................................19
ARTICLE 3
REDEMPTION
Section 3.01. Applicability of Article...................................................................19
Section 3.02. Notice of Redemption; Partial Redemptions..................................................19
Section 3.03. Payment of Securities Called for Redemption................................................20
Section 3.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption..............21
Section 3.05. Mandatory and Optional Sinking Funds.......................................................22
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ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities......................................................................24
Section 4.02. Maintenance of Office or Agency............................................................24
Section 4.03. Certificate to Trustee.....................................................................25
Section 4.04. Reports by the Company and the Guarantor...................................................25
Section 4.05. Calculation of Original Issue Discount.....................................................26
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. When the Company May Merge, Etc. ..........................................................26
Section 5.02. Successor Substituted......................................................................26
ARTICLE 6
THE GUARANTEE BY AND COVENANTS OF THE GUARANTOR
Section 6.01. Guarantee..................................................................................27
Section 6.02. When the Guarantor May Merge, Etc. ........................................................29
Section 6.03. Successor Substituted......................................................................30
ARTICLE 7
DEFAULT AND REMEDIES
Section 7.01. Events of Default..........................................................................30
Section 7.02. Acceleration...............................................................................31
Section 7.03. Other Remedies.............................................................................33
Section 7.04. Waiver of Past Defaults....................................................................33
Section 7.05. Control by Majority........................................................................33
Section 7.06. Limitation on Suits........................................................................33
Section 7.07. Rights of Holder to Receive Payment........................................................34
Section 7.08. Collection Suit by Trustee.................................................................34
Section 7.09. Trustee May File Proofs of Claim...........................................................34
Section 7.10. Application of Proceeds....................................................................35
Section 7.11. Restoration of Rights and Remedies.........................................................36
Section 7.12. Undertaking for Costs......................................................................36
Section 7.13. Rights and Remedies Cumulative.............................................................36
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TABLE OF CONTENTS
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Section 7.14. Delay or Omission Not Waiver...............................................................36
ARTICLE 8
TRUSTEE
Section 8.01. General....................................................................................36
Section 8.02. Certain Rights of Trustee..................................................................37
Section 8.03. Individual Rights of Trustee...............................................................38
Section 8.04. Trustee's Disclaimer.......................................................................39
Section 8.05. Notice of Default..........................................................................39
Section 8.06. Reports by Trustee to Holders..............................................................39
Section 8.07. Compensation and Indemnity.................................................................39
Section 8.08. Replacement of Trustee.....................................................................40
Section 8.09. Successor Trustee by Merger, Etc. .........................................................41
Section 8.10. Eligibility................................................................................41
Section 8.11. Money Held in Trust........................................................................41
ARTICLE 9
DISCHARGE OF INDENTURE
Section 9.01. Defeasance within One Year of Payment......................................................42
Section 9.02. Defeasance.................................................................................42
Section 9.03. Covenant Defeasance........................................................................43
Section 9.04. Application of Trust Money.................................................................44
Section 9.05. Repayment to Company and Guarantor.........................................................44
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.01. Without Consent of Holders.................................................................45
Section 10.02. With Consent of Holders....................................................................45
Section 10.03. Revocation and Effect of Consent...........................................................47
Section 10.04. Notation on or Exchange of Securities......................................................47
Section 10.05. Trustee to Sign Amendments, Etc. ..........................................................47
Section 10.06. Conformity with Trust Indenture Act........................................................48
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ARTICLE 11
SUBORDINATION
Section 11.01. Securities Subordinated to Senior Indebtedness.............................................48
Section 11.02. No Payment on Securities in Certain Circumstances..........................................48
Section 11.03. Securities Subordinated to Prior Payment of all Senior Indebtedness on
Dissolution, Liquidation or Reorganization of Company......................................49
Section 11.04. Securityholders to be Subrogated to Rights of Senior Indebtedness..........................50
Section 11.05. Obligations of the Company Unconditional...................................................51
Section 11.06. Trustee Entitled to Assume Payments not Prohibited in Absence of Notice....................52
Section 11.07. Application by Trustee of Assets Deposited with it.........................................52
Section 11.08. Subordination Rights not Impaired by Acts or Omissions of the Company, the
Trustee, or Holders of Senior Indebtedness.................................................52
Section 11.09. Securityholders Authorize Trustee to Effectuate Subordination of Securities................53
Section 11.10. Right of Trustee to Hold Senior Indebtedness...............................................53
Section 11.11. Article 11 Not to Prevent Events of Default................................................53
Section 11.12. No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.............................54
ARTICLE 12
SUBORDINATION OF THE GUARANTEE
Section 12.01. Guarantee Subordinated to Guarantor Senior Indebtedness....................................54
Section 12.02. No Payment on Guarantee in Certain Circumstances...........................................54
Section 12.03. Guarantee Subordinated to Prior Payment of all Guarantor Senior Indebtedness on
Dissolution, Liquidation or Reorganization of Guarantor ...................................55
Section 12.04. Securityholders to be Subrogated to Rights of Guarantor Senior Indebtedness................56
Section 12.05. Obligations of the Guarantor Unconditional.................................................57
Section 12.06. Trustee Entitled to Assume Payments not Prohibited in Absence of Notice....................57
Section 12.07. Application by Trustee of Assets Deposited with it.........................................58
Section 12.08. Subordination Rights not Impaired by Acts or Omissions of the Company, the
Trustee, or Holders of Guarantor Senior Indebtedness.......................................58
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Section 12.09. Securityholders Authorize Trustee to Effectuate Subordination of Guarantee.................59
Section 12.10. Right of Trustee to Hold Guarantor Senior Indebtedness.....................................59
Section 12.11. Article 12 Not to Prevent Events of Default................................................59
Section 12.12. No Fiduciary Duty of Trustee to Holders of Guarantor Senior Indebtedness...................59
ARTICLE 13
MISCELLANEOUS
Section 13.01. Trust Indenture Act of 1939................................................................60
Section 13.02. Notices....................................................................................60
Section 13.03. Certificate and Opinion as to Conditions Precedent.........................................61
Section 13.04. Statements Required in Certificate or Opinion..............................................61
Section 13.05. Evidence of Ownership......................................................................62
Section 13.06. Rules by Trustee, Paying Agent or Registrar................................................62
Section 13.07. Payment Date other than a Business Day.....................................................63
Section 13.08. Governing Law..............................................................................63
Section 13.09. No Adverse Interpretation of Other Agreements..............................................63
Section 13.10. Successors.................................................................................63
Section 13.11. Duplicate Originals........................................................................63
Section 13.12. Separability...............................................................................63
Section 13.13. Table of Contents, Headings, Etc. .........................................................63
Section 13.14. Incorporators, Stockholders, Officers and Directors of Company Exempt from
Individual Liability.......................................................................63
Section 13.15. Judgment Currency..........................................................................63
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SUBORDINATED INDENTURE, dated as of _________, 20__, among
Credit
Suisse Group Finance (Delaware) LLC I, a limited liability company organized
under the laws of the State of Delaware, as the Company,
Credit Suisse Group, a
company organized under the laws of Switzerland, as the Guarantor, and JPMorgan
Chase Bank, a
New York banking corporation, as the Trustee.
RECITALS OF THE COMPANY AND THE GUARANTOR
WHEREAS, the Company has duly authorized the issue from time to time
of its subordinated debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and to provide, among other things, for the authentication,
delivery and administration of the Securities, the Company has duly authorized
the execution and delivery of this Indenture;
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done and performed; and
WHEREAS, all acts and things necessary to make the Guarantee of the
Securities, as in this Indenture provided, the valid, binding and legal
obligation of the Guarantor, and to constitute a valid Guarantee and agreement
according to its terms, have been done and performed, and the execution by the
Guarantor of this Indenture has in all respects been duly authorized;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Company, the Guarantor and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities or of any and all series thereof and
of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of
New York, will, if practicable, be The Wall Street Journal (Eastern
Edition) and in the case of London, will, if practicable, be the Financial Times
(London Edition)) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of
New York or London,
as applicable. If it shall be impractical in the opinion of the Trustee to make
any publication of any
notice required hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval of the Trustee
shall constitute a sufficient publication of such notice.
"Board Resolution" means one or more resolutions of the board of
directors of the Company, the Guarantor or any authorized committee of the
Company or the Guarantor, certified by the secretary or an assistant secretary
of the Company or the Guarantor, as the case may be, to have been duly adopted
and to be in full force and effect on the date of certification, and delivered
to the Trustee.
"Business Day" means, with respect to any Security, a day that is not
a day on which banking institutions are authorized or required by law or
regulation to close, in the city (or in any of the cities, if more than one)
unless otherwise specified, in which amounts are payable, as specified in the
form of such Security.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Institutional Trust Services.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default as defined in Section 7.01.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Company pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than
2
one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Guarantee" means the guarantee of the Guarantor as endorsed on each
Security authenticated and delivered pursuant to this Indenture and shall
include the guarantee of the Guarantor set forth in Section 6.01 of this
Indenture and shall include all other obligations and covenants of the Guarantor
contained in this Indenture and any Securities.
"Guarantor" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article 6 of this
Indenture and thereafter means the successor.
"Guarantor Senior Indebtedness" means the principal of and premium, if
any, and interest on (a) all indebtedness of the Guarantor, whether outstanding
on the date of this Indenture or thereafter created, (i) for money borrowed by
the Guarantor, (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Guarantor, (iii) in
respect of letters of credit and acceptances issued or made by banks, or (iv)
constituting guarantor purchase money indebtedness, or indebtedness secured by
property included in the property, plant and equipment accounts of the Guarantor
at the time of the acquisition of such property by the Guarantor, for the
payment of which the Guarantor is directly liable and (b) all deferrals,
renewals, extensions and refundings of, and amendments, modifications and
supplements to, any such indebtedness. As used in the preceding sentence, the
term "guarantor purchase money indebtedness" means indebtedness evidenced by a
note, debenture, bond or other instrument (whether or not secured by any lien or
other security interest) issued or assumed as all or a part of the consideration
for the acquisition of property, whether by purchase, merger, consolidation or
otherwise, unless by its terms such indebtedness is subordinated to other
indebtedness of the Guarantor. Notwithstanding anything to the contrary in this
Indenture or the Guarantee, Guarantor Senior Indebtedness shall not include (i)
any indebtedness of the Guarantor which, by its terms or the terms of the
instrument creating or evidencing it, is subordinate in right of payment to or
pari passu with the Guarantee or (ii) any indebtedness of the Guarantor to a
Subsidiary of the Guarantor. [The obligations of the Guarantor under the
Guarantee shall rank pari passu with the obligations of the Guarantor, as the
Company, under the
subordinated indenture dated as of _____, between the
Guarantor, as the company, and JPMorgan Chase Bank, as the trustee.]
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.01
and 2.03.
3
"Officer" means, with respect to the Company, the president, any
vice-president, the treasurer, any deputy treasurer, any assistant treasurer,
the secretary or any assistant secretary of the Company, and with respect to
the Guarantor, the Chairman or Co-Chairman or Vice Chairman of the Group
Executive Board, the Chief Executive Officer or Co-Chief Executive Officer, the
Chief Financial Officer, the Chief Risk Officer, the Group General Counsel, the
Group Head of Capital and Funding and the Group Head of Accounting/Reporting, or
any such other officers or employees of the Guarantor exercising the same or
similar functions.
"Officers' Certificate" means a certificate by any two Officers of the
Company or of the Guarantor, as the case may be, complying with Section 13.04
and delivered to the Trustee. Each such certificate shall comply with Section
314 of the Trust Indenture Act and include (except as otherwise expressly
provided in this Indenture) the statements provided in Section 13.04.
"Opinion of Counsel" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company or to the Guarantor, or to
both, satisfactory to the Trustee and complying with Section 13.04. Each such
opinion shall comply with Section 314 of the Trust Indenture Act and include the
statements provided in Section 13.04, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 7.02.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Securities.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"Principal" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the Security.
4
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.02, and bearing the legend prescribed in Section
2.02.
"Registered Security" means any Security registered on the Security
Register (as defined in Section 2.05).
"Responsible Officer" means, when used with respect to the Trustee,
any officer within the Corporate Trust Office, including any Vice President,
Managing Director, Assistant Vice President, Secretary, Assistant Secretary or
Assistant Treasurer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge and familiarity with the
particular subject.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on (a) all indebtedness of the Company, whether outstanding on the date
of this Indenture or thereafter created, (i) for money borrowed by the Company,
(ii) for money borrowed by, or obligations of, others and either assumed or
guaranteed, directly or indirectly, by the Company, (iii) in respect of letters
of credit and acceptances issued or made by banks, or (iv) constituting purchase
money indebtedness, or indebtedness secured by property included in the
property, plant and equipment accounts of the Company at the time of the
acquisition of such property by the Company, for the payment of which the
Company is directly liable and (b) all deferrals, renewals, extensions and
refundings of, and amendments, modifications and supplements to, any such
indebtedness. As used in the preceding sentence, the term "purchase money
indebtedness" means indebtedness evidenced by a note, debenture, bond or other
instrument (whether or not secured by any lien or other security interest)
issued or assumed as all or a part of the consideration for the acquisition of
property, whether by purchase, merger, consolidation or otherwise, unless by its
terms such indebtedness is subordinated to other indebtedness of the Company.
Notwithstanding anything to the contrary in this Indenture or the Securities,
Senior Indebtedness shall not include, (i) any indebtedness of the Company
which, by its terms or the terms of the instrument creating or evidencing it, is
subordinate in right of payment to or pari passu with the Securities or (ii) any
indebtedness of the Company to a Subsidiary of the Company.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Swiss GAAP" means the accounting rules of the Swiss Federal Law on
Banks and Savings Banks and the respective Implementing Ordinance, the Federal
Banking Commission guidelines and Swiss GAAP FER Financial Reporting Standards
for the insurance businesses of the Guarantor, which collectively are the
generally accepted accounting principles for banks and insurance companies,
respectively, in Switzerland.
5
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article 8 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as it may
be amended from time to time.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or Principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depositary
receipt; PROVIDED that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or Principal
of the U.S. Government Obligation evidenced by such depositary receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Yield to Maturity" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series are
issuable from time to time, on a Security of such series, calculated at the time
of issuance of such series in the case of clause (i) or at the time of issuance
of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent redetermination of interest on such series or on such
Security, and calculated in accordance with the constant interest method or such
other accepted financial practice as is specified in the terms of such Security.
Section 1.02. OTHER DEFINITIONS. Each of the following terms is
defined in the section set forth opposite such term:
TERM SECTION
---- -------
Authenticating Agent 2.02
cash transaction 8.03
Dollars 4.02
Events of Default 7.01
Judgment Currency 13.15
mandatory sinking fund payment 3.05
optional sinking fund payment 3.05
Paying Agent 2.05
6
record date 2.04
Registrar 2.05
Required Currency 13.15
Security Register 2.05
self-liquidating paper 8.03
sinking fund payment date 3.05
tranche 2.14
Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture. The
following terms used in this Indenture that are defined by the Trust Indenture
Act have the following meanings:
"indenture securities" means the Securities and the Guarantee;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company, the Guarantor
or any other obligor on the Securities or on the Guarantee.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein. If any provision of this Indenture
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
Section 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(a) an accounting term not otherwise defined has the meaning assigned
to it in accordance with Swiss GAAP or such other generally accepted accounting
principles under which the Guarantor may in the future prepare its financial
statements;
(b) words in the singular include the plural, and words in the plural
include the singular;
(c) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(d) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
7
(e) use of masculine, feminine or neuter pronouns should not be deemed
a limitation, and the use of any such pronouns should be construed to include,
where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
Section 2.01. FORM AND DATING. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions of the
Company or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law, or
with any rules of any securities exchange or usage, all as may be determined by
the Officers executing such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered Securities shall have
coupons attached.
Section 2.02. EXECUTION AND AUTHENTICATION. The Securities (other than
coupons) and the Guarantee shall be executed on behalf of the Company and of the
Guarantor, as the case may be, by two of their respective Officers by facsimile
or manual signature in the name and on behalf of the Company and of the
Guarantor, as the case may be. If an Officer whose signature is on a Security or
the Guarantee no longer holds that office at the time the Security or the
Guarantee is authenticated, the Security or the Guarantee shall nevertheless be
valid.
The Trustee, at the expense of the Company, or if the Company shall
fail to pay such expense, the Guarantor, may appoint an authenticating agent
(the "Authenticating Agent") to authenticate Securities (other than coupons).
The Authenticating Agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such Authenticating Agent.
A Security (other than coupons) shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series having attached
thereto appropriate coupons, if any, executed by the Company, with the Guarantee
of the Guarantor endorsed thereon, to the Trustee for authentication together
with the applicable documents referred to below in this Section, and the Trustee
shall thereupon authenticate and make available for delivery such Securities to
or upon the written order of the Company. In authenticating any Securities of a
series, the Trustee shall be entitled to receive prior to the first
authentication of any Securities of such series, and shall be fully protected in
relying upon, unless and until such documents have been superseded or revoked:
8
(a) any Board Resolution of the Company and/or executed supplemental
indenture referred to in Sections 2.01 and 2.03 by or pursuant to which the
forms and terms of the Securities of that series were established;
(b) an Officers' Certificate of the Company and the Guarantor setting
forth the form or forms and terms of the Securities and the Guarantee thereof,
stating that the form or forms and terms of the Securities of such series have
been, or will be when established in accordance with such procedures as shall be
referred to therein, established in compliance with this Indenture; and
(c) an Opinion of Counsel of the Company and the Guarantor
substantially to the effect that the form or forms and terms of the Securities
of such series and the Guarantee thereof have been, or will be when established
in accordance with such procedures as shall be referred to therein, established
in compliance with this Indenture and that the supplemental indenture, to the
extent applicable, and the Securities and the Guarantee thereof have been duly
authorized and, if executed and authenticated, or in the case of the Guarantee,
if the Security on which the Guarantee shall have been endorsed shall have been
authenticated, in accordance with the provisions of the Indenture and delivered
to and duly paid for by the purchasers thereof on the date of such opinion,
would be entitled to the benefits of the Indenture and would be valid and
binding obligations of the Company and the Guarantor, as the case may be,
enforceable against the Company and the Guarantor, as the case may be, in
accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting
creditors' rights generally, general principles of equity, and such other
matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.03 that the
Securities of a series or a portion thereof are to be issued in the form of one
or more Registered Global Securities, then the Company shall execute, and the
Guarantor shall execute the Guarantee endorsed thereon, and the Trustee shall
authenticate and make available for delivery one or more Registered Global
Securities, having a Guarantee executed by the Guarantor endorsed thereon, that
(i) shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued in such form and
not yet canceled, (ii) shall be registered in the name of the Depositary for
such Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or its custodian or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect:
"Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
Section 2.03. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
9
The Securities may be issued in one or more series and each such
series shall rank junior in right of payment, to the extent provided herein, to
all Senior Indebtedness. There shall be established in or pursuant to a Board
Resolution of the Company or one or more indentures supplemental hereto, prior
to the initial issuance of Securities of any series (subject to the last
sentence of this Section 2.03):
(a) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(b) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture and any
limitation on the ability of the Company to increase such aggregate principal
amount after the initial issuance of the Securities of that series (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities of the
series pursuant hereto);
(c) the date or dates on which the Principal of the Securities of the
series is payable (which date or dates may be fixed or are subject to
extension);
(d) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall be
payable and (in the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is payable and/or the
method by which such rate or rates or date or dates shall be determined;
(e) if other than as provided in Section 4.02, the place or places
where the Principal of and any interest on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served and notice to Holders may be
published;
(f) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the price
or prices at which and the period or periods within which and any of the terms
and conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(i) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
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(j) if other than the coin or currency in which the Securities of the
series are denominated, the coin or currency in which payment of the Principal
of or interest on the Securities of the series shall be payable or if the amount
of payments of Principal of and/or interest on the Securities of the series may
be determined with reference to an index based on a coin or currency other than
that in which the Securities of the series are denominated, the manner in which
such amounts shall be determined;
(k) if payment of the Principal of and interest on the Securities of
the series shall be payable in currency or currencies other than the currency of
the United States, the manner in which any such currency shall be valued against
other currencies in which any other Securities shall be payable;
(l) whether the Securities of the series or any portion thereof will
be issuable as Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities (with or
without coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided herein, the terms
upon which Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(m) whether and under what circumstances the Company will pay
additional amounts on the Securities in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Company will
have the option to redeem such Securities rather than pay such additional
amounts;
(n) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(o) any trustees, depositaries, authenticating or paying agents,
transfer agents or the registrar or any other agents with respect to the
Securities of the series;
(p) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all Securities
of the series), which provisions may be in addition to, in substitution for, or
in modification of (or any combination of the foregoing) the provisions of
Article 9;
(q) if the Securities of the series are issuable in whole or in part
as one or more Registered Global Securities, the identity of the Depositary for
such Registered Global Security or Securities;
(r) any other events of default or covenants with respect to the
Securities of the series;
(s) whether and under what circumstances the Holders may or are
required to convert or exchange the Securities into or for other securities of
the Company or of another entity, and if so, the terms relating to such
conversion or exchange; and
11
(t) any other terms of the Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time and
may be issued from time to time, consistent with the terms of this Indenture, if
so provided by or pursuant to such Board Resolution or in any such indenture
supplemental hereto and any forms and terms of Securities to be issued from time
to time may be completed and established from time to time prior to the issuance
thereof by procedures described in such Board Resolution or supplemental
indenture.
Section 2.04. DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof.
The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the Officers of
the Company executing the same may determine, as evidenced by their execution
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by Section
2.03.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The term "record date" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as such
in the terms of the Registered Securities of such series established as
contemplated by Section 2.03, or, if no such date is so established, the
fifteenth day next preceding such interest payment date, whether or not such
record date is a Business Day.
Section 2.05. REGISTRAR AND PAYING AGENT; AGENTS GENERALLY. The
Company shall maintain an office or agency where Securities may be presented for
registration, registration of transfer or exchange (the "Registrar") and the
Company and the Guarantor shall maintain an office or agency where Securities
may be presented for payment or where, in the case of the Guarantor, Securities
may be presented for payment under the Guarantees endorsed thereon (the "Paying
Agent"), which shall be in the Borough of Manhattan, The City of
New York. The
Company shall cause the Registrar to keep a register of the Registered
Securities and of their
12
registration, transfer and exchange (the "Security Register"). The Company and
the Guarantor may have one or more additional Paying Agents or transfer agents
with respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent that is not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or if the Company or the Guarantor
fail to maintain a Paying Agent, the Trustee shall act as such. The Company or
the Guarantor may remove any Agent appointed by it upon written notice to such
Agent and the Trustee; PROVIDED that no such removal shall become effective
until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company or the
Guarantor and such successor Agent and delivered to the Trustee or (ii)
notification to the Trustee that the Trustee shall serve as such Agent until the
appointment of a successor Agent in accordance with clause (i) of this proviso.
The Company, the Guarantor or any affiliate of the Company or the Guarantor may
act as Paying Agent or Registrar; PROVIDED that neither the Company, the
Guarantor nor an affiliate of the Company or the Guarantor shall act as Paying
Agent in connection with the defeasance of the Securities or the discharge of
this Indenture under Article 9.
The Company initially appoints the Trustee as Registrar and
Authenticating Agent and the Company and the Guarantor initially appoint the
Trustee as Paying Agent. If, at any time, the Trustee is not the Registrar, the
Registrar shall make available to the Trustee ten days prior to each interest
payment date and at such other times as the Trustee may reasonably request the
names and addresses of the Holders as they appear in the Security Register.
Section 2.06. PAYING AGENT TO HOLD MONEY IN TRUST. Not later than
10:00 a.m.,
New York City time, on each due date of any Principal or interest on
any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent for
the payment of Principal of and interest on such Securities and shall promptly
notify the Trustee in writing of any default in making any such payment. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying
Agent, require such Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed. Upon doing so, the Paying Agent shall have
no further liability for the money so paid over to the Trustee. If the Company,
the Guarantor or any affiliate of the Company or the Guarantor acts as Paying
Agent, it will, on or before each due date of any Principal of or interest on
any Securities, segregate and hold in a separate trust fund for the benefit of
the Holders thereof a sum of money sufficient to pay such Principal or interest
so becoming due until such sum of money shall be paid to such Holders or
otherwise disposed of as provided in this Indenture, and will promptly notify
the Trustee in writing of its action or failure to act as required by this
Section.
13
Section 2.07. TRANSFER AND EXCHANGE. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
and tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 2.05 and upon payment, if the Company shall so require, of the
charges hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise established pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section
4.02, with, in the case of Unregistered Securities that have coupons attached,
all unmatured coupons and all matured coupons in default thereto appertaining,
and upon payment, if the Company shall so require, of the charges hereinafter
provided.
At the option of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise established pursuant to
Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.02, with, in the case of Unregistered Securities
that have coupons attached, all unmatured coupons and all matured coupons in
default thereto appertaining, and upon payment, if the Company shall so require,
of the charges hereinafter provided. Registered Securities of any series may not
be exchanged for Unregistered Securities of such series.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities, having a Guarantee executed by the Guarantor endorsed
thereon, which the Holder making the exchange is entitled to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company, the Guarantor and the Trustee duly executed by, the holder or his
attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any exchange
or registration of transfer of Securities. No service charge shall be made for
any such transaction.
14
Notwithstanding any other provision of this Section 2.07, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and make available for delivery Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, having a Guarantee executed by the Guarantor endorsed
thereon, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained in
global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will authenticate and make
available for delivery, Registered Securities of such series and tenor in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, having a Guarantee
executed by the Guarantor endorsed thereon, in exchange for such Registered
Global Securities.
Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities, having a Guarantee executed by the Guarantor endorsed
thereon, without the legend required by Section 2.02 and the Trustee agrees to
hold such Registered Securities in safekeeping until authenticated and delivered
pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with respect to
any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole or
in part for Registered Securities of the same series and tenor in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, having a Guarantee executed by the
Guarantor endorsed thereon,
15
of any authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security, having a
Guarantee executed by the Guarantor endorsed thereon, in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Registered Global Security and the aggregate principal amount
of Registered Securities authenticated and delivered pursuant to clause (i)
above.
Registered Securities issued in exchange for a Registered Global
Security, having a Guarantee executed by the Guarantor endorsed thereon,
pursuant to this Section 2.07 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Company or the Trustee in writing.
The Trustee or such agent shall deliver such Securities to or as directed in
writing by the Persons in whose names such Securities are so registered.
All Securities (including the Guarantee endorsed thereon) issued upon
any transfer or exchange of Securities shall be valid obligations of the Company
and the Guarantor, evidencing the same debt, and entitled to the same benefits
under this Indenture and the Guarantee endorsed thereon, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of the
Company or the Trustee shall be required to exchange any Unregistered Security
for a Registered Security if such exchange would result in adverse Federal
income tax consequences to the Company or to the Guarantor (such as, for
example, the imposition of any excise tax on the Company or the Guarantor) under
then applicable United States Federal income tax laws. The Trustee and any such
agent shall be entitled to rely conclusively on an Officers' Certificate or an
Opinion of Counsel in determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of 15
days before a selection of such Securities to be redeemed or (ii) to register
the transfer of or exchange any Security selected for redemption in whole or in
part.
Section 2.08. REPLACEMENT SECURITIES. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims that
its Security of any series has been lost, destroyed or wrongfully taken and
presents to the Trustee, the Company, the Guarantor and any Agent evidence to
their satisfaction of the loss, destruction or wrongful taking of such Security,
the Company shall issue and the Trustee shall authenticate a replacement
Security of such series and tenor and principal amount, having a Guarantee
executed by the Guarantor endorsed thereon, bearing a number not
contemporaneously outstanding. An indemnity bond must be furnished that is
sufficient in the judgment of the Trustee, the Company and the Guarantor to
protect the Trustee, the Company, the Guarantor and any Agent from any loss that
any of them may suffer if a Security is replaced. The Company may charge such
Holder for its
16
expenses and the expenses of the Trustee (including without limitation
attorneys' fees and expenses) in replacing a Security. In case any such
mutilated, defaced, lost, destroyed or wrongfully taken Security has become or
is about to become due and payable, the Company and the Guarantor in their
discretion may pay such Security instead of issuing a new Security (with the
Guarantee endorsed thereon) in replacement thereof.
Every replacement Security (including the Guarantee endorsed thereon)
is an additional obligation of the Company and the Guarantor and shall be
entitled to the benefits of this Indenture equally and proportionately with any
and all other Securities of such series and the Guarantee endorsed thereon duly
authenticated and delivered hereunder.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
Section 2.09. OUTSTANDING SECURITIES. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those Securities canceled by it, those Securities delivered to it for
cancellation, those paid pursuant to Section 2.08 and those Securities described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee, the Company and the Guarantor receive
proof satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company, the Guarantor or an
affiliate of the Company or the Guarantor) holds on the maturity date or any
redemption date or date for repurchase of the Securities money sufficient to pay
Securities payable or to be redeemed or repurchased on such date, then on and
after such date such Securities shall cease to be outstanding and interest on
them shall cease to accrue.
A Security does not cease to be outstanding because the Company, the
Guarantor or one of the affiliates of the Company or the Guarantor holds such
Security, PROVIDED, HOWEVER, that, in determining whether the Holders of the
requisite principal amount of the outstanding Securities shall have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company, the Guarantor or any affiliate of the Company
or the Guarantor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities as to which a Responsible Officer of the Trustee has received written
notice to be so owned shall be so disregarded. Any Securities so owned which are
pledged by the Company, the Guarantor, or any affiliate of the Company or the
Guarantor, as security for loans or other obligations, otherwise than to another
such affiliate of the Company or the Guarantor, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the terms of its pledge
agreement and is free to exercise in its discretion the right to vote such
securities, uncontrolled by the Company, the Guarantor or any such affiliate.
17
Section 2.10. TEMPORARY SECURITIES. Until definitive Securities of any
series are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities of such series, having the Guarantee of the
Guarantor endorsed thereon. Temporary Securities of any series shall be
substantially in the form of definitive Securities of such series but may have
insertions, substitutions, omissions and other variations determined to be
appropriate by the Officers of the Company and the Guarantor executing the
temporary Securities or the Guarantee endorsed thereon, as evidenced by their
execution of such temporary Securities or Guarantee, as applicable. If temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series, having the Guarantee of the Guarantor endorsed
thereon, to be prepared without unreasonable delay. After the preparation of
definitive Securities of any series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series and tenor upon
surrender of such temporary Securities at the office or agency of the Company
designated for such purpose pursuant to Section 4.02, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities
of any series the Company shall execute and the Trustee shall authenticate and
make available for delivery in exchange therefor a like principal amount of
definitive Securities of such series and tenor and authorized denominations,
having a Guarantee executed by the Guarantor endorsed thereon. Until so
exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series.
Section 2.11. CANCELLATION. The Company or the Guarantor at any time
may deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company or the Guarantor may
have acquired in any manner whatsoever, and may deliver to the Trustee for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold. The Registrar, any transfer agent and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
transfer, exchange, payment or cancellation and shall deliver such canceled
Securities to the Company or the Guarantor, as applicable. The Company may not
issue new Securities to replace Securities it has paid in full or delivered to
the Trustee for cancellation.
Section 2.12. CUSIP NUMBERS. The Company in issuing the Securities may
use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee shall
use CUSIP numbers or CINS numbers, as the case may be, in notices of redemption
or exchange as a convenience to Holders and no representation shall be made as
to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or exchange.
Section 2.13. DEFAULTED INTEREST. If the Company defaults in a payment
of interest on the Securities, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest plus (to the extent lawful) any interest payable on the defaulted
interest (as may be specified in the terms thereof, established pursuant to
Section 2.03) to the Persons who are Holders on a subsequent special record
date, which shall mean the 15th day next preceding the date fixed by the Company
for the payment of defaulted interest, whether or not such day is a Business
Day. At least 15 days before such special record date, the Company shall mail to
each Holder and to the Trustee a
18
notice that states the special record date, the payment date and the amount of
defaulted interest to be paid.
Section 2.14. SERIES MAY INCLUDE TRANCHES. A series of Securities may
include one or more tranches (each a "tranche") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections
2.02 (other than the fourth paragraph thereof) through 2.04, 2.07, 2.08, 2.10,
3.01 through 3.05, 4.02, 7.01 through 7.14, 9.01 through 9.05 and 10.02, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to Section 2.03. In particular, and without
limiting the scope of the next preceding sentence, any of the provisions of such
sections which provide for or permit action to be taken with respect to a series
of Securities shall also be deemed to provide for and permit such action to be
taken instead only with respect to Securities of one or more tranches within
that series (and such provisions shall be deemed satisfied thereby), even if no
comparable action is taken with respect to Securities in the remaining tranches
of that series.
Section 2.15. COMPUTATION OF INTEREST. Except as otherwise specified
pursuant to Section 2.03 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 2.16. ERISA. No Securities may be sold or otherwise
transferred unless the purchaser or transferee of such Securities represents,
or is deemed to represent, that on each day from the date of acquisition
through and including the date of disposition either (i) it is not an
employee benefit plan or other plan subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended, a governmental or other plan
subject to substantially similar federal, state or local law ("Similar Law"),
an entity whose underlying assets include "plan assets" by reason of any such
plan's investment in the entity or otherwise (each, a "Plan") or acting on
behalf of or investing the assets of any such Plan or (ii) it is eligible for
the exemptive relief available under Prohibited Transaction Class Exemption
96-23, 95-60, 91-38, 90-1 or 84-14 (or similar exemption from Similar Law)
with respect to the acquisition, holding and disposition of the Securities.
ARTICLE 3
REDEMPTION
Section 3.01. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
Section 3.02. NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Company shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Registered Securities of such series at their last addresses as they shall
appear upon the Security Register of the Company. Notice of redemption to the
Holders of Unregistered Securities of any series to be redeemed as a whole or in
part, who have filed their names and addresses with the Trustee pursuant to
Section 313(c)(2) of the Trust Indenture Act, shall be given by mailing notice
of such redemption, by first class mail, postage prepaid, at least 30 days and
not more than 60 days prior to the date fixed for redemption, to such Holders at
such addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Company, the Trustee shall make such information available
to the Company for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed
19
as a whole or in part shall be published in an Authorized Newspaper in The City
of
New York and in an Authorized Newspaper in London, in each case, once in each
of three successive calendar weeks, the first publication to be not less than 30
days nor more than 60 days prior to the date fixed for redemption. Any notice
which is mailed or published in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice to the Holder of any
Security of a series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security
of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP and CINS numbers of the Securities to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and, in
the case of Securities with coupons attached thereto, of all coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series and
tenor in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m.,
New York City time, on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.06) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 10 days prior to the
last date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.02 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating that all such
Securities are to be redeemed.
If less than all the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 15 days prior to the
last date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.02 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating the aggregate
principal amount of such Securities to be redeemed. In case of a redemption at
the election of the Company prior to the expiration of any restriction on such
redemption, the Company shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such redemption is not prohibited by such
20
restriction. If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company and the Guarantor in writing of
the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
Section 3.03. PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after such
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to such date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured coupons, if any, appertaining thereto shall be void
and, except as provided in Sections 8.11 and 9.04, such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit under
this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption.
On presentation and surrender of such Securities at a place of payment
specified in said notice, together with all coupons, if any, appertaining
thereto maturing after the date fixed for redemption, said Securities or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption; PROVIDED that payment of interest becoming due on or prior
to the date fixed for redemption shall be payable in the case of Securities with
coupons attached thereto, to the Holders of the coupons for such interest upon
surrender thereof, and in the case of Registered Securities, to the Holders of
such Registered Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.04 and 2.13 hereof. If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the Principal shall, until paid or duly provided for, bear interest
from the date fixed for redemption at the rate of interest or Yield to Maturity
(in the case of an Original Issue Discount Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after the
date fixed for redemption, the surrender of such missing coupon or coupons may
be waived by the Company, the Guarantor and the Trustee, if there be furnished
to each of them such security or indemnity as they may require to save each of
them harmless.
Upon presentation of any Security of any series redeemed in part only,
the Company shall execute and the Trustee shall authenticate and make available
for delivery to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities
21
of such series and tenor (with any unmatured coupons attached), each having a
Guarantee executed by the Guarantor endorsed thereon, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Security so presented.
Section 3.04. EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an Officer of the Company and delivered
to the Trustee at least 60 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company, (b) the Guarantor or (c) an
entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or the Guarantor.
Section 3.05. MANDATORY AND OPTIONAL SINKING FUNDS. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.11, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Company
through any optional sinking fund payment. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, or such shorter period as shall be acceptable to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Company intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Company intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Company to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.11 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall
22
be irrevocable and, upon its receipt by the Trustee, the Company shall become
unconditionally obligated to make all the cash payments or delivery of
Securities therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Company, on or before any such sixtieth day,
to deliver such Officers' Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Company (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof and (ii) that the Company
will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Company shall so request with respect to
the Securities of any series), such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at the
sinking fund redemption price thereof together with accrued interest thereon to
the date fixed for redemption. If such amount shall be $50,000 (or such lesser
sum) or less and the Company makes no such request then it shall be carried over
until a sum in excess of $50,000 (or such lesser sum) is available. The Trustee
shall select, in the manner provided in Section 3.02, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be, and shall (if requested in
writing by the Company) inform the Company of the serial numbers of the
Securities of such series (or portions thereof) so selected. Securities shall be
excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers' Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment date
as being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Company, (b) the Guarantor or (c) an entity specifically
identified in such Officers' Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
the Guarantor. The Trustee, in the name and at the expense of the Company (or
the Company, if it shall so request the Trustee in writing) shall cause notice
of redemption of the Securities of such series to be given in substantially the
manner provided in Section 3.02 (and with the effect provided in Section 3.03)
for the redemption of Securities of such series in part at the option of the
Company. The amount of any sinking fund payments not so applied or allocated to
the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the Principal of, and interest on, the Securities of such series at
maturity.
On or before 10:00 a.m.,
New York City time, on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for redemption
on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a series
with sinking fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking fund during the continuance of a Default in
payment of
23
interest on such Securities or of any Event of Default except that, where the
mailing of notice of redemption of any Securities shall theretofore have been
made, the Trustee shall redeem or cause to be redeemed such Securities, PROVIDED
that it shall have received from the Company a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any such Default or Event of Default shall occur, and any
moneys thereafter paid into the sinking fund, shall, during the continuance of
such default or Event of Default, be deemed to have been collected under Article
7 and held for the payment of all such Securities. In case such Event of Default
shall have been waived as provided in Section 7.04 or the Default cured on or
before the sixtieth day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of such
Securities.
ARTICLE 4
COVENANTS
Section 4.01. PAYMENT OF SECURITIES. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of
any series to the contrary, if the Company and a Holder of any Registered
Security so agree or if expressly provided pursuant to Section 2.03, payments of
interest on, and any portion of the Principal of, such Holder's Registered
Security (other than interest payable at maturity or on any redemption or
repayment date or the final payment of Principal on such Security) shall be made
by the Paying Agent, upon receipt from the Company of immediately available
funds by 11:00 a.m.,
New York City time (or such other time as may be agreed to
between the Company and the Paying Agent), directly to the Holder of such
Security (by Federal funds wire transfer or otherwise) if the Holder has
delivered written instructions to the Trustee 15 days prior to such payment date
requesting that such payment will be so made and designating the bank account to
which such payments shall be so made and in the case of payments of Principal
surrenders the same to the Trustee in exchange for a Security or Securities
aggregating the same principal amount as the unredeemed principal amount of the
Securities surrendered. The Trustee shall be entitled to rely on the last
instruction delivered by the Holder pursuant to this Section 4.01 unless a new
instruction is delivered 15 days prior to a payment date. The Company will
indemnify and hold each of the Trustee and any Paying Agent harmless against any
loss, liability or expense
24
(including attorneys' fees) resulting from any act or omission to act on the
part of the Company or any such Holder in connection with any such agreement or
from making any payment in accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of
New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served; and the
Guarantor will maintain in the Borough of Manhattan, The City of New York, an
office or agency where Securities may be presented for payment under the
Guarantees endorsed thereon and where notices and demands to or upon the
Guarantor in respect of the Guarantee and this Indenture may be served. The
Company and the Guarantor hereby initially designate the Corporate Trust Office
of the Trustee, located in the Borough of Manhattan, The City of New York, as
such office or agency of the Company and the Guarantor. The Company and the
Guarantor will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Company
or the Guarantor shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 13.02.
The Company and the Guarantor will maintain one or more agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Securities of any series are listed) where the
Unregistered Securities, if any, of each series and coupons, if any,
appertaining thereto may be presented for payment or for payment under the
Guarantees endorsed thereon, as the case may be. No payment on any Unregistered
Security or coupon or the Guarantee endorsed thereon will be made upon
presentation of the same at an agency of the Company or the Guarantor within the
United States nor will any payment be made by transfer to an account in, or by
mail to an address in, the United States unless, pursuant to applicable United
States laws and regulations then in effect, such payment can be made without
adverse tax consequences to the Company or the Guarantor. Notwithstanding the
foregoing, if full payment in United States Dollars ("Dollars") at each agency
maintained by the Company or the Guarantor outside the United States for payment
on such Unregistered Securities or coupons appertaining thereto or the
Guarantees endorsed thereon, as the case may be, is illegal or effectively
precluded by exchange controls or other similar restrictions, payments in
Dollars of Unregistered Securities of any series, coupons appertaining thereto
or the Guarantee endorsed thereon which are payable in Dollars may be made at an
agency of the Company or the Guarantor maintained in the Borough of Manhattan,
The City of New York.
The Company and the Guarantor may also from time to time designate one
or more other offices or agencies where the Securities of any series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; PROVIDED that no such designation or rescission shall
in any manner relieve either the Company or the Guarantor of its obligation to
maintain an office or agency in the Borough of Manhattan,
25
The City of New York for such purposes. The Company or the Guarantor, as
applicable, will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 4.03. CERTIFICATE TO TRUSTEE. The Company and the Guarantor
each will furnish to the Trustee annually, on or before a date not more than
four months after the end of its fiscal year (which, on the date hereof, in the
case of each of the Company and the Guarantor, is a calendar year), a brief
certificate (which need not contain the statements required by Section 13.04)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company or the Guarantor, as the case may be,
with all conditions and covenants under this Indenture (such compliance to be
determined without regard to any period of grace or requirement of notice
provided under this Indenture) which certificate shall comply with the
requirements of the Trust Indenture Act.
Section 4.04. REPORTS BY THE COMPANY AND THE GUARANTOR. The Company
and the Guarantor each covenant to file with the Trustee, within 15 days after
the Company or the Guarantor is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
which the Company or the Guarantor may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act. Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the compliance of the Company and of the Guarantor with any
of the covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
Section 4.05. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The Company
shall file with the Trustee promptly at the end of each calendar year a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on outstanding Securities as of the end of such
year.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. WHEN THE COMPANY MAY MERGE, ETC. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than with or into the Guarantor) or
permit any Person to merge with or into the Company unless:
(a) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or that acquired or leased such property and assets of the
Company shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Company on all of the
Securities and under this Indenture and the Company shall have delivered to the
Trustee an Opinion of Counsel stating that such consolidation, merger or
transfer and such supplemental indenture complies with this provision and that
all conditions precedent provided
26
for herein relating to such transaction have been complied with and that such
supplemental indenture constitutes the legal, valid and binding obligation of
the Company or such successor enforceable against such entity in accordance with
its terms, subject to customary exceptions; and
(b) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that immediately after giving effect to such
transaction, no Default shall have occurred and be continuing and an Opinion of
Counsel as to the matters set forth in Section 5.01(a)(y).
Section 5.02. SUCCESSOR SUBSTITUTED. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein.
ARTICLE 6
THE GUARANTEE BY AND COVENANTS OF THE GUARANTOR
Section 6.01. GUARANTEE. The Guarantor by its execution of this
Indenture hereby agrees with each Holder of the Securities authenticated and
delivered by the Trustee, and with the Trustee, on behalf of each such Holder,
to be unconditionally bound by the terms and provisions of the Guarantee set
forth below and authorizes the Trustee to confirm such Guarantee to the Holder
of each such Security by its execution and delivery of each such Security, with
such Guarantee endorsed thereon, authenticated and delivered by the Trustee.
The Guarantee to be endorsed on the Securities shall be in
substantially the form set forth below:
SUBORDINATED GUARANTEE
OF
CREDIT SUISSE GROUP
For value received,
Credit Suisse Group, a company organized under the laws of
Switzerland, having its principal executive offices at ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇.▇. ▇▇▇
▇, ▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (herein called the "Guarantor," which term
includes any Person as a successor Guarantor under the Indenture referred to in
the Security upon which this Guarantee is endorsed), subject to the prior
payment in full of all its existing and future Guarantor Senior Indebtedness and
to the subordination provisions contained in Article 12 of the Indenture, hereby
fully and unconditionally guarantees to the Holder of the Security upon which
this Guarantee is endorsed and to the Trustee on behalf of each such Holder the
due and punctual payment of the Principal of and interest on such Security and
the due and punctual payment of the sinking fund or
27
analogous payments referred to therein, if any, when and as the same shall
become due and payable, whether on the stated maturity date, by declaration of
acceleration, call for redemption or otherwise, according to the terms thereof
and of the Indenture referred to therein. In case of the failure of
Credit
Suisse Group Finance (Delaware) LLC I, a limited liability company organized
under the laws of the State of Delaware (herein called the "Borrower", which
term includes any successor Person under such Indenture), to punctually make any
such payment of Principal or interest or any such sinking fund or analogous
payment, the Guarantor hereby agrees, subject to the subordination provisions
contained in Article 12 of the Indenture, to cause any such payment to be made
punctually when and as the same shall become due and payable, whether on the
stated maturity date or by declaration of acceleration, call for redemption or
otherwise, and as if such payment were made by the Borrower.
The indebtedness evidenced by this Guarantee is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Guarantor Senior Indebtedness, and this Guarantee is issued subject
to the subordination provisions of Article 12 of the Indenture with respect
thereto. The Holder of the Security upon which this Guarantee is endorsed, by
accepting the same, (i) agrees to and shall be bound by, such provisions, (ii)
authorizes and directs the Trustee on his, her or its behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (iii) appoints the Trustee his, her or its
attorney-in-fact for any and all such purposes. The Holder hereof, by his, her
or its acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Guarantor Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
Subject to the subordination provisions of Article 12 of the Indenture, the
Guarantor hereby agrees that its obligations hereunder shall be as if it were
the principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture, any failure
to enforce the provisions of such Security or such Indenture, or any waiver,
modification or indulgence granted to the Borrower with respect thereto, by the
Holder of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge of a surety or Guarantor;
provided, however, that, notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent of the Guarantor, increase
the Principal amount of such Security, or increase the interest rate thereon, or
alter the stated maturity date thereof, or increase the principal amount of any
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Article 7 of
such Indenture. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Borrower, any right to require a proceeding first against the Borrower,
protest or notice with respect to such Security or the indebtedness evidenced
thereby or with respect to any sinking fund or analogous payment required under
such Security and all demands whatsoever, and covenants that this Guarantee will
not be discharged except by payment in full of the Principal of and interest on
such Security. This Guarantee is a guarantee of payment and not of collection.
The Guarantor shall be subrogated to all rights of the Holder of such Security
and the Trustee
28
against the Borrower in respect of any amounts paid to such Holder by the
Guarantor pursuant to the provisions of this Guarantee; provided, however, that
the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon such right of subrogation until the Principal of
and interest on all Securities of the same series issued under such Indenture
shall have been paid in full.
No reference herein to such Indenture and no provision of this Guarantee or of
such Indenture shall alter or impair the guarantees of the Guarantor, which,
subject to the subordination provisions of Article 12 of the Indenture, are
absolute and unconditional, of the due and punctual payment of the Principal of
and interest on, and any sinking fund or analogous payments with respect to, the
Security upon which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication of such Security shall have been manually executed
by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall have
the meanings assigned to them in such Indenture.
This Guarantee shall be governed by and construed in accordance with the laws of
the State of New York.
Executed and dated the date on the face hereof.
CREDIT SUISSE GROUP,
as the Guarantor
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
Section 6.02. WHEN THE GUARANTOR MAY MERGE, ETC. The Guarantor shall
not consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or
29
substantially all of its property and assets (as an entirety or substantially as
an entirety in one transaction or a series of related transactions) to, any
Person (other than with or into the Company) or permit any Person to merge with
or into the Guarantor unless:
(a) either (x) the Guarantor shall be the continuing Person or (y) the
Person (if other than the Guarantor) formed by such consolidation or into which
the Guarantor is merged or that acquired or leased such property and assets of
the Guarantor shall expressly assume, by a supplemental indenture, executed and
delivered to the Company and to the Trustee, all of the obligations of the
Guarantor on the Guarantee and under this Indenture and the Guarantor shall have
delivered to the Trustee an Opinion of Counsel stating that such consolidation,
merger or transfer and such supplemental indenture complies with this provision
and that all conditions precedent provided for herein relating to such
transaction have been complied with and that such supplemental indenture
constitutes the legal, valid and binding obligation of the Guarantor or such
successor enforceable against such entity in accordance with its terms, subject
to customary exceptions; and
(b) the Guarantor shall have delivered to the Trustee an Officers'
Certificate to the effect that immediately after giving effect to such
transaction, no Default shall have occurred and be continuing and an Opinion of
Counsel as to the matters set forth in Section 6.02(a)(y).
Section 6.03. SUCCESSOR SUBSTITUTED. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Guarantor in accordance with
Section 6.02 of this Indenture, the successor Person formed by such
consolidation or into which the Guarantor is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Guarantor
under this Indenture with the same effect as if such successor Person had been
named as the Guarantor herein.
ARTICLE 7
DEFAULT AND REMEDIES
Section 7.01. EVENTS OF DEFAULT. An "Event of Default" shall mean any
one of the following events with respect to the Securities of any series:
(a) default in the payment of all or any part of the Principal of any
Security of such series when the same becomes due and payable at maturity, upon
acceleration, redemption or mandatory repurchase, including as a sinking fund
installment, or otherwise;
(b) default in the payment of any interest on any Security of such
series when the same becomes due and payable, and such default continues for a
period of 30 days;
(c) a default or breach of any other covenant or agreement of the
Company or the Guarantor in this Indenture with respect to any Security of such
series or in the Securities of such series and such default or breach continues
for a period of 60 days after written notice thereof has been given to the
Company and the Guarantor by the Trustee or to the Company, the Guarantor and
the Trustee by the Holders of 25% or more in aggregate principal amount of the
Securities of all series affected thereby;
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(d) commencement of an involuntary case or other proceeding against
the Company, with respect to the Company or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of the Company or for any substantial part of the property and assets
of the Company, 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 Company, under any bankruptcy, insolvency or other
similar law now or hereafter in effect;
(e) commencement by the Company of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or the Company's consent to the entry of an order for relief in an
involuntary case under any such law, or its consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or for all or substantially all
of the property and assets of the Company, or any general assignment by the
Company for the benefit of creditors;
(f) commencement of an involuntary case or other proceeding against
the Guarantor, with respect to the Guarantor or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of the Guarantor or for any substantial part of the property and assets
of the Guarantor, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days, except that the issuance of a
writ of payment under the Swiss debt enforcement and bankruptcy laws shall not
constitute such involuntary case or proceeding for the purpose of this clause;
or an order for relief shall be entered against the Guarantor, under any
bankruptcy, insolvency or other similar law now or hereafter in effect;
(g) commencement by the Guarantor of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or the Guarantor's consent to the entry of an order for relief in an
involuntary case under any such law, or its consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or for all or substantially all
of the property and assets of the Company, or any general assignment by the
Guarantor for the benefit of creditors; or
(h) any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
Section 7.02. ACCELERATION. (a) If an Event of Default described in
Section 7.01(a) or (b) with respect to the Securities of any series then
outstanding occurs and is continuing, then, and in each and every such case,
except for any series of Securities the Principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any such affected series then
outstanding hereunder (each such series treated as a separate class) by notice
in writing to the Company and to the Guarantor (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the Securities
of any such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series
31
established pursuant to Section 2.03) of all Securities of such affected series,
and the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable.
(b) If an Event of Default described in Section 7.01(c) or (h) with
respect to the Securities of one or more but not all series then outstanding,
occurs and is continuing, then, and in each and every such case, except for any
series of Securities the Principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount (or, if the Securities of any such series are Original Issue
Discount Securities, the amount thereof that may be accelerated under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company and to
the Guarantor (and to the Trustee if given by Securityholders), may declare the
entire principal amount (or, if the Securities of any such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series established pursuant to Section 2.03) of
all Securities of all such affected series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.
(c) If an Event of Default described in Section 7.01(d), (e), (f) or
(g) occurs and is continuing, then the principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the Principal as may be
specified in the terms thereof established pursuant to Section 2.03) of all the
Securities then outstanding and interest accrued thereon, if any, shall be and
become immediately due and payable, without any notice or other action by any
Holder or the Trustee, to the full extent permitted by applicable law.
(d) If an Event of Default described in Section 7.01(c) or (h) with
respect to the Securities of all series then outstanding, occurs and is
continuing, then, and in each and every such case, either the Trustee or the
Holders of not less than 25% in aggregate principal amount (or, if the
Securities of any outstanding series are Original Issue Discount Securities, the
amount thereof accelerable under this Section) of all Securities of any series
then outstanding hereunder except for any series of Securities the Principal of
which shall have already become due and payable (treated as a single class) by
notice in writing to the Company and to the Guarantor (and to the Trustee if
given by Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series
established pursuant to Section 2.03) of all Securities of any series then
outstanding, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal amount (or, if the Securities are Original
Issue Discount Securities, such portion of the Principal as may be specified in
the terms thereof established pursuant to Section 2.03) of the Securities of any
series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company or the Guarantor shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of each such series (or of all the Securities, as the case may be)
32
and the Principal of any and all Securities of each such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such Principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of each
such series to the date of such payment or deposit) and such amount as shall be
sufficient to cover all amounts owing to the Trustee under Section 8.07, and if
any and all Events of Default under this Indenture, other than the non-payment
of the Principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein, then and
in every such case the Holders of a majority in aggregate principal amount of
all the then outstanding Securities of all such series that have been
accelerated (voting as a single class), by written notice to the Company, to the
Guarantor and to the Trustee, may waive all defaults with respect to all such
series (or with respect to all the Securities, as the case may be) 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.
For all purposes under this Indenture, if a portion of the Principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the Principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the Principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section 7.03. OTHER REMEDIES. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
Section 7.04. WAIVER OF PAST DEFAULTS. Subject to Sections 7.02, 7.07
and 10.02, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the Principal
as is then accelerable under Section 7.02) of the outstanding Securities of all
series affected (voting as a single class), by notice to the Trustee, may waive
an existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of Principal of or
interest on any Security as specified in Section 7.01(a) or (b) or in respect of
a covenant or provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series arising therefrom shall be deemed
to have
33
been cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Section 7.05. CONTROL BY MAJORITY. Subject to Sections 8.01 and
8.02(e), the Holders of at least a majority in aggregate principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 7.02) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; PROVIDED, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and PROVIDED FURTHER, that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this Section
7.05.
Section 7.06. LIMITATION ON SUITS. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities of such series, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice of
a continuing Event of Default with respect to the Securities of such series;
(b) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request; (d) the Trustee for 60
days after its receipt of such notice, request and offer of indemnity has failed
to institute any such proceeding; and
(e) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities of all such affected series have
not given the Trustee a direction that is inconsistent with such written
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
Section 7.07. RIGHTS OF HOLDER TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of or interest, if any, on such Holder's Security
on or after the respective due dates expressed on such Security, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
34
Section 7.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in Section 7.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company and the Guarantor for the whole amount (or such portion thereof as
specified in the terms established pursuant to Section 2.03 of Original Issue
Discount Securities) of Principal of, and accrued interest remaining unpaid on,
together with interest on overdue Principal of, and, to the extent that payment
of such interest is lawful, interest on overdue installments of interest on, the
Securities of such series, in each case at the rate or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such Securities, and
such further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 8.07.
Section 7.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 8.07) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), the Guarantor, the creditors of the Company or the Guarantor, or
the property of the Company or the Guarantor and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
under Section 8.07. Nothing herein contained shall be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder,
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities, the Guarantee or the rights of any Holder under the Securities or
the Guarantee, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.
Section 7.10. APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under Section
8.07 applicable to the Securities of such series in respect of which moneys
have been collected;
SECOND: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same
35
rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in such Securities, such payments to
be made ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for Principal and interest,
with interest upon the overdue Principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such Principal and interest or Yield to Maturity,
without preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over Principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such Principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company, or to
the extent the Trustee collects any amount pursuant to the Guarantee, the
Guarantor, or any other person lawfully entitled thereto.
Section 7.11. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then,
and in every such case, subject to any determination in such proceeding, the
Company, the Guarantor, the Trustee and the Holders shall be restored to their
former positions hereunder and thereafter all rights and remedies of the
Company, the Guarantor, Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 7.12. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, in either case in respect to
the Securities of any series, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant (other than the Trustee) in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 7.12 does not apply to a suit by a
Holder pursuant to Section 7.07 or a suit by Holders of more than 10% in
principal amount of the outstanding Securities of such series.
Section 7.13. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right
36
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 7.14. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article 7 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
ARTICLE 8
TRUSTEE
Section 8.01. GENERAL. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity satisfactory to it
against any loss, liability or expense. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Article 8. The Trustee, prior to the occurrence of an Event
of Default of which a Responsible Officer of the Trustee has actual knowledge
and after the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture and no implied covenants or obligations shall be read
into this Indenture against the Trustee. If an Event of Default to the actual
knowledge of a Responsible Officer of the Trustee has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
Section 8.02. CERTAIN RIGHTS OF TRUSTEE. Subject to Trust Indenture
Act Sections 315(a) through (d):
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any Officers' Certificate, Opinion of
Counsel (or both), resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper person or persons. The
Trustee need not investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(b) before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to
Section 13.04. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such certificate or opinion. Subject to
Sections 8.01 and 8.02, whenever in the administration of the
37
trusts of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting to take
any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted to be taken by
it under the provisions of this Indenture upon the faith thereof;
(c) the Trustee may act through its attorneys, Agents, custodians and
nominees not regularly in its employ and shall not be responsible for the
misconduct or negligence of any Agent, attorney, custodian and nominee appointed
with due care;
(d) any request, direction, order or demand of the Company or the
Guarantor mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein specifically
prescribed); and any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Company or
the Guarantor, as the case may be;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request, order
or direction;
(f) the Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its rights or
powers or for any action it takes or omits to take in accordance with the
direction of the Holders in accordance with Section 7.05 relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture;
(g) the Trustee may consult with counsel of its selection and the
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 hereunder in good faith and in reliance thereon;
(h) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, Officers' Certificate, Opinion of Counsel, Board Resolution,
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 Holders of not less than a
majority in aggregate principal amount of the Securities of all series affected
then outstanding; PROVIDED that, if the payment within a reasonable time to the
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 Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may
38
require indemnity satisfactory to it against such expenses or liabilities as a
condition to proceeding; and
(i) if the Trustee is acting as Paying Agent or Transfer Agent and
Registrar herein the rights and protections afforded the Trustee under this
Article 8 shall also be afforded to such Paying Agent or Transfer Agent and
Registrar.
Section 8.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company, the Guarantor or their respective
affiliates with the same rights it would have if it were not the Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to Trust
Indenture Act Sections 310(b) and 311. For purposes of Trust Indenture Act
Section 311(b)(4) and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, ▇▇▇▇ of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company or the Guarantor for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company or the Guarantor
arising from the making, drawing, negotiating or incurring of the draft, ▇▇▇▇ of
exchange, acceptance or obligation.
[For purposes of clause (i) of the first proviso to Trust Indenture
Act Section 310(b), the following indenture is hereby excluded: the
subordinated
indenture dated ________ between
Credit Suisse Group, as the company, and
JPMorgan Chase Bank, as the trustee.]
Section 8.04. TRUSTEE'S DISCLAIMER. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall be
taken as statements of the Company or the Guarantor and not of the Trustee and
the Trustee assumes no responsibility for the correctness of the same. Neither
the Trustee nor any of its agents (i) makes any representation as to the
validity or adequacy of this Indenture, the Securities or the Guarantees and
(ii) shall be accountable for the Company's or the Guarantor's use or
application of the proceeds from the Securities or for monies paid over to the
Company or the Guarantor pursuant to the Indenture.
Section 8.05. NOTICE OF DEFAULT. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer of the Trustee, the Trustee
shall give to each Holder of Securities of such series notice of such Default
within 90 days after it occurs (i) if any Unregistered Securities of such series
are then outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in
39
an Authorized Newspaper in London and (ii) to all Holders of Securities of such
series in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, unless such Default shall have been cured or waived before the
mailing or publication of such notice; PROVIDED, HOWEVER, that, except in the
case of a Default in the payment of the Principal of or interest on any
Security, the Trustee shall be fully protected in withholding such notice if the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders.
Section 8.06. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each
May 1, beginning with May 1, 20__, the Trustee shall mail to each Holder as and
to the extent provided in Trust Indenture Act Section 313(c) a brief report
dated as of such May 1, if required by Trust Indenture Act Section 313(a).
Section 8.07. COMPENSATION AND INDEMNITY. The Company, or failing
which, the Guarantor, shall pay to the Trustee such compensation as shall be
agreed upon in writing from time to time for its services. The compensation of
the Trustee shall not be limited by any law on compensation of a Trustee of an
express trust. The Company, or failing which, the Guarantor, shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by the Trustee. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents, counsel and other
persons not regularly in its employ.
The Company, or failing which, the Guarantor, shall indemnify the
Trustee and its officers, directors, employees and Agents for, and hold it and
them harmless against, any and all loss, damage, claim or liability or expense
(including legal fees and expenses) including taxes (other than taxes based on
the income of the Trustee) incurred by it or them without negligence or bad
faith on its part arising out of or in connection with the acceptance or
administration of this Indenture and the Securities or the issuance of the
Securities or a series thereof or the trusts hereunder and the performance of
its duties under this Indenture and the Securities, including the costs and
expenses of defending itself against or investigating any claim or liability and
of complying with any process served upon it or any of its officers in
connection with the exercise or performance of any of its powers or duties under
this Indenture and the Securities.
To secure the Company's and the Guarantor's payment obligations in
this Section 8.07, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay Principal of, and interest on
particular Securities.
The obligations of the Company and the Guarantor under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the rejection or
termination of this Indenture under bankruptcy, insolvency or similar law or the
earlier resignation or removal of the Trustee. Such additional indebtedness
shall be a senior claim to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Securities or coupons, and the Securities
are hereby subordinated to such senior claim. If the
40
Trustee renders services and incurs expenses following an Event of Default under
Section 7.01(d), (e), (f) or (g) hereof, the parties hereto and the Holders by
their acceptance of the Securities hereby agree that such expenses are intended
to constitute expenses of administration under any bankruptcy, insolvency or
similar law.
Section 8.08. REPLACEMENT OF TRUSTEE. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and appointment
of a successor Trustee as Trustee with respect to the Securities of any series
shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 8.08.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the Company and the Guarantor in writing.
The Holders of a majority in principal amount of the outstanding Securities of
any series may remove the Trustee as Trustee with respect to the Securities of
such series by so notifying the Trustee in writing and may appoint a successor
Trustee with respect thereto with the consent of the Company. The Company may
remove the Trustee as Trustee with respect to the Securities of any series if:
(i) the Trustee is no longer eligible under Section 8.10 of this Indenture; (ii)
the Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other
public officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the outstanding Securities of such series may appoint a successor
Trustee in respect of such Securities to replace the successor Trustee appointed
by the Company. If the successor Trustee with respect to the Securities of any
series does not deliver its written acceptance required by the next succeeding
paragraph of this Section 8.08 within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect thereto.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee, to the
Company and to the Guarantor. Immediately after the delivery of such written
acceptance, subject to the lien provided for in Section 8.07 and subject to the
payment of any and all amounts then due and owing to the retiring Trustee, (i)
the retiring Trustee shall transfer all property held by it as Trustee in
respect of the Securities of such series to the successor Trustee, (ii) the
resignation or removal of the retiring Trustee in respect of the Securities of
such series shall become effective and (iii) the successor Trustee shall have
all the rights, powers and duties of the Trustee in respect of the Securities of
such series under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in the preceding paragraph.
41
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee in respect of the Securities of such series to all Holders
of Securities of such series. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office. Notwithstanding
replacement of the Trustee with respect to the Securities of any series pursuant
to this Section 8.08, the Company's and the Guarantor's obligations under
Section 8.07 shall continue for the benefit of the retiring Trustee.
Section 8.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein; PROVIDED that such successor Trustee shall be otherwise qualified and
eligible under this Article 8.
Section 8.10. ELIGIBILITY. This Indenture shall always have a Trustee
who satisfies the requirements of Trust Indenture Act Section 310(a). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition.
Section 8.11. MONEY HELD IN TRUST. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law and except for money held in
trust under Article 9 of this Indenture.
ARTICLE 9
DISCHARGE OF INDENTURE
Section 9.01. DEFEASANCE WITHIN ONE YEAR OF PAYMENT. Except as
otherwise provided in this Section 9.01, the Company or the Guarantor may
terminate the obligations of the Company and the Guarantor under the Securities
of any series, the Guarantee and this Indenture with respect to Securities of
such series if:
(a) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of such
series that have been replaced or paid or Securities of such series that are
paid pursuant to Section 4.01 or Securities of such series for whose payment
money or securities have theretofore been held in trust and thereafter repaid to
the Company or the Guarantor, as provided in Section 9.05) have been delivered
to the Trustee for cancellation and the Company (or the Guarantor pursuant to
the Guarantee) has paid all sums payable by it hereunder; or
(b) (i) the Securities of such series mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (ii) the
Company or the Guarantor irrevocably deposits in trust with the Trustee, as
trust funds solely for the benefit of the Holders of such Securities for that
purpose, money or U.S. Government Obligations or a combination thereof
sufficient (unless such funds
42
consist solely of money, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment, to pay the
Principal of and interest on the Securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder, and (iii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of this
Indenture with respect to the Securities of such series have been complied with.
With respect to the foregoing clause (a) only the Company's and the
Guarantor's obligations under Section 8.07 in respect of the Securities of such
series shall survive. With respect to the foregoing clause (b), only the
obligations of the Company and the Guarantor in Sections 2.02 through 2.12,
4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, in respect of the Securities of
such series and the Guarantee thereof shall survive until such Securities of
such series are no longer outstanding. Thereafter, only the obligations of the
Company and the Guarantor in Sections 8.07, 9.04 and 9.05, as applicable, in
respect of the Securities of such series and the Guarantee thereof shall
survive. After any such irrevocable deposit, the Trustee upon written request
shall acknowledge in writing the discharge of the obligations of the Company and
the Guarantor under the Securities of such series, the Guarantee thereof and
this Indenture with respect to the Securities of such series except for those
surviving obligations specified above.
Section 9.02. DEFEASANCE. Except as provided below, the Company will
be deemed to have paid and the Company and the Guarantor will be discharged from
any and all obligations in respect of the Securities of any series and the
Guarantee thereof, and the provisions of this Indenture will no longer be in
effect with respect to the Securities of such series and the Guarantee thereof
(and the Trustee, at the expense of the Company and the Guarantor, shall execute
proper instruments acknowledging the same); PROVIDED that the following
conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust
with the Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and interest on the
Securities of such series, money or U.S. Government Obligations or a combination
thereof sufficient (unless such funds consist solely of money, in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration of
any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to pay
and discharge the Principal of and accrued interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the case may
be;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company or the Guarantor, as the case may be, is a party
or by which it is bound;
(c) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
43
(d) the Company shall have delivered to the Trustee either (x) a
ruling directed to the Trustee received from the Internal Revenue Service to the
effect that the Holders of the Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
discharge under this Section 9.02 and will be subject to federal income tax on
the same amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred or (y) an Opinion of
Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section 9.02
of the Securities of such series have been complied with.
The obligations of the Company and the Guarantor in Sections 2.02
through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to
the Securities of such series and the Guarantee thereof shall survive until such
Securities are no longer outstanding. Thereafter, only the obligations of the
Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall
survive.
Section 9.03. COVENANT DEFEASANCE. The Company and the Guarantor may
omit to comply with any specific covenant relating to such series provided for
in a Board Resolution or supplemental indenture pursuant to Section 2.03 which
may by its terms be defeased pursuant to this Section 9.03, and such omission
shall be deemed not to be an Event of Default under Section 7.01(c) or (h), with
respect to the outstanding Securities of a series if:
(a) the Company or the Guarantor has irrevocably deposited in trust
with the Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and interest, if any,
on the Securities of such series, money or U.S. Government Obligations or a
combination thereof in an amount sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee) without consideration of any reinvestment and after payment of all
federal, state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, to pay and discharge the Principal of and
interest on the outstanding Securities of such series to maturity or earlier
redemption (irrevocably provided for under arrangements satisfactory to the
Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company or the Guarantor, as the case may be, is a party
or by which it is bound;
(c) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(d) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that such Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and covenant defeasance and will
be subject to federal income tax on the
44
same amount and in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the covenant defeasance contemplated by this
Section 9.03 of the Securities of such series have been complied with.
Section 9.04. APPLICATION OF TRUST MONEY. Subject to Section 9.05, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 9.01, 9.02 or 9.03, as the case may be, in
respect of the Securities of any series and shall apply the deposited money and
the proceeds from deposited U.S. Government Obligations in accordance with the
Securities of such series and this Indenture to the payment of Principal of and
interest on the Securities of such series; but such money need not be segregated
from other funds except to the extent required by law. The Company, and failing
which, the Guarantor, agrees to pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 9.01, 9.02 or 9.03 or the Principal or
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Securities.
Section 9.05. REPAYMENT TO COMPANY AND GUARANTOR. Subject to Sections
8.07, 9.01, 9.02 and 9.03, the Trustee and the Paying Agent shall promptly pay
to the Company or to the Guarantor, as the case may be, upon request set forth
in an Officers' Certificate any money originally paid by a party making such
request held by them at any time and not required to make payments hereunder and
thereupon shall be relieved from all liability with respect to such money. The
Trustee and the Paying Agent shall pay to the Company or to the Guarantor, as
the case may be, upon written request any money originally paid by a party
making such request held by them and required to make payments hereunder that
remains unclaimed for two years; PROVIDED that the Trustee or such Paying Agent
before being required to make any payment may cause to be published at the
expense of the Company or to the Guarantor, as the case may be, once in an
Authorized Newspaper in The City of New York and once in an Authorized Newspaper
in London or mail to each Holder entitled to such money at such Holder's address
(as set forth in the Security Register) notice that such money remains unclaimed
and that after a date specified therein (which shall be at least 30 days from
the date of such publication or mailing) any unclaimed balance of such money
then remaining will be repaid to the Company or to the Guarantor, as the case
may be. After payment to the Company or to the Guarantor, Holders entitled to
such money must look to the Company or to the Guarantor, as the case may be, for
payment as general creditors unless an applicable law designates another Person,
and all liability of the Trustee and such Paying Agent with respect to such
money shall cease.
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.01. WITHOUT CONSENT OF HOLDERS. The Company, the Guarantor and the
Trustee may amend or supplement this Indenture, the Guarantee or the Securities
of any series without notice to or the consent of any Holder:
45
(a) to cure any ambiguity, defect or inconsistency in this Indenture;
PROVIDED that such amendments or supplements shall not materially and adversely
affect the interests of the Holders;
(b) to comply with Section 5.01, 5.02, 6.01 and 6.02;
(c) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act;
(d) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a successor
Trustee;
(e) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted by Section
2.03;
(f) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose;
(g) to provide for a further guarantee from a third party on
outstanding Securities of any series and the Securities of any series that may
be issued under this Indenture; or
(h) to make any change that does not materially and adversely affect
the rights of any Holder.
Section 10.02. WITH CONSENT OF HOLDERS. Subject to Sections 7.04 and
7.07, without prior notice to any Holders, the Company, the Guarantor and the
Trustee may amend this Indenture, the Guarantee and the Securities of any series
with the written consent of the Holders of a majority in principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
Principal as may then be accelerated under Section 7.02) of the outstanding
Securities of all series affected by such amendment (all such series voting as
one class), and the Holders of a majority in principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the Principal
as may then be accelerated under Section 7.02) of the outstanding Securities of
all series affected thereby (all such series voting as one class) by written
notice to the Trustee may waive future compliance by the Company and the
Guarantor with any provision of this Indenture, the Guarantee or the Securities
of such series.
Notwithstanding the provisions of this Section 10.02, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 7.04, may not:
(a) extend the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security, or
reduce the Principal thereof or the rate of interest thereon (including any
amount in respect of original issue discount), or adversely affect the rights of
such Holder under any mandatory redemption or repurchase provision or any right
of redemption or repurchase at the option of such Holder, or reduce the amount
of the Principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section 7.02 or
the amount thereof provable in bankruptcy, insolvency or similar proceeding, or
change any place of payment where, or the
46
currency in which, any Principal or the interest thereon is payable, modify any
right to convert or exchange such Holder's Security for another security to the
detriment of the Holder, or impair the right to institute suit for the
enforcement of any such payment on or after the due date therefor;
(b) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required for
any such supplemental indenture, or for any waiver of compliance with certain
provisions of this Indenture or certain Defaults and their consequences provided
for in this Indenture;
(c) waive a Default in the payment of Principal of or interest on any
Security of such Holder; or
(d) modify any of the provisions of this Section 10.02, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the coupons appertaining to
such Securities.
It shall not be necessary for the consent of any Holder under this
Section 10.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 10.02
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
Section 10.03. REVOCATION AND EFFECT OF CONSENT. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to its Security or portion of its
Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective with
respect to any Securities affected thereby on receipt by the Trustee of written
consents from the requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the solicitation
of consents) for the purpose of determining the Holders of the Securities of any
series affected entitled to consent to any
47
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the immediately preceding paragraph, those Persons who were such
Holders at such record date (or their duly designated proxies) and only those
Persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such Persons continue to
be such Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of
clauses(a) through (d) of Section 10.02. In case of an amendment or waiver of
the type described in clauses (a) through (d) of Section 10.02, the amendment or
waiver shall bind each such Holder who has consented to it and every subsequent
Holder of a Security that evidences the same indebtedness as the Security of the
consenting Holder.
Section 10.04. NOTATION ON OR EXCHANGE OF SECURITIES. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may require
the Holder thereof to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security of
such series thereafter authenticated. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security of the same series and tenor that
reflects the changed terms.
Section 10.05. TRUSTEE TO SIGN AMENDMENTS, ETC.. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 10 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company and the Guarantor,
enforceable against the Company and the Guarantor in accordance with its terms,
subject to customary exceptions. Subject to the preceding sentence, the Trustee
shall sign such amendment, supplement or waiver if the same does not adversely
affect the rights of the Trustee. The Trustee may, but shall not be obligated
to, execute any such amendment, supplement or waiver that affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
Section 10.06. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article 10 shall conform to the requirements
of the Trust Indenture Act as then in effect.
ARTICLE 11
SUBORDINATION
Section 11.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS. The
Company, for itself and its successors, and each Holder, by his or her
acceptance of Securities, agrees that the payment of the Principal of and
interest on the Securities is subordinated, to the extent and in the manner
provided in this Article 11, to the right of payment in full to all present and
future Senior
48
Indebtedness, and that these subordination provisions are for the benefit of the
holders of Senior Indebtedness. The provisions of this Article 11 are for the
benefit of the holders of the Senior Indebtedness from time to time (and their
successors and assigns) and shall be enforceable directly by them and their
respective representatives directly against the Company, the Trustee and the
Holders (and their successors and assigns). The provisions of this Article 11
shall be a continuing agreement and shall be irrevocable and shall remain in
full force and effect until payment in the full of the Senior Indebtedness in
cash or cash equivalents, and shall constitute a continuing and irrevocable
offer to all Persons who become holders of, or continue to hold, Senior
Indebtedness (whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities), each of which holders shall be deemed for
the purposes hereof to have acquired Senior Indebtedness in reliance upon the
provisions of this Article 11. The provision of this Article 11 shall survive
the commencement of any reorganization or other proceedings with respect to the
Company or any other Person and the discharge of any claim in connection with
such reorganization or other proceedings, including, without limitation, the
discharge of any Senior Indebtedness.
The holders of the Senior Indebtedness and their respective
representatives are hereby authorized to demand specific performance of the
provisions of this Article 11 at any time when the Company or any Holder shall
have failed to comply with any provision of this Article 11 applicable to it,
and the Company and each Holder hereby irrevocably waives any defense based on
the adequacy of a remedy at law that might be asserted as a bar to the remedy of
specific performance hereof in any action brought therefor by the holders of the
Senior Indebtedness and their respective representatives.
Section 11.02. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES. (a)
No payment shall be made by or on behalf of the Company on account of any
obligation or, to the extent the subordination thereof is permitted by
applicable law, claim in respect of the Securities, including the Principal of
or interest on the Securities, or to redeem (or make a deposit in redemption
of), defease (other than payments made by the Trustee pursuant to Article 9 with
respect to a defeasance permitted by this Indenture, including the subordination
provisions herein) or acquire any of the Securities for cash, property or
securities, (i) upon the maturity of the Senior Indebtedness with an aggregate
principal amount in excess of $100 million by lapse of time, acceleration or
otherwise, unless and until all principal of, premium, if any, and interest on
such Senior Indebtedness and all other obligations in respect thereof shall
first be paid in full in cash or cash equivalents or such payment is duly
provided for, or unless and until any such maturity by acceleration has been
rescinded or waived or (ii) in the event of default in payment of any principal
of, premium, if any, or interest on or any other amount payable in respect of
the Senior Indebtedness with an aggregate principal amount in excess of $100
million when it becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration or otherwise, unless and until such payment
default has been cured or waived or has otherwise ceased to exist.
(b) In the event that, notwithstanding the foregoing provision of this
Section 11.02, any payment or distribution of assets of the Company from any
source, whether in cash, property or securities, shall be received by the
Trustee or the Holders on account of any obligation or claim in respect of the
Securities at a time when such payment or distribution is prohibited by the
foregoing provision, such payment or distribution (subject to the provisions of
49
Sections 11.06 and 11.07) shall be held in trust for the benefit of the holders
of Senior Indebtedness, and shall be paid or delivered by the Trustee or such
Holders, as the case may be, to the holders of the Senior Indebtedness remaining
unpaid or unprovided for or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay or to
provide for the payment in full in cash or cash equivalents of all such Senior
Indebtedness, after giving effect to any concurrent payment or distribution and
all provisions therefor to the holders of such Senior Indebtedness, but only to
the extent that as to any holder of Senior Indebtedness, as promptly as
practicable following notice from the Trustee to the holders of Senior
Indebtedness that such prohibited payment has been received by the Trustee or
Holder(s), such holder (or a representative therefor) notifies the Trustee in
writing of the amounts then due and owing on the Senior Indebtedness, if any,
held by such holder and only the amounts specified in such notices to the
Trustee shall be paid to the holders of Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any acceleration
under any Senior Indebtedness or under any agreement pursuant to which Senior
Indebtedness may have been issued.
Section 11.03. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION OF COMPANY. Upon any
distribution of assets of the Company upon any dissolution, winding up, total or
partial liquidation or reorganization or readjustment of the Company, whether
voluntary or involuntary, in bankruptcy, insolvency or similar proceeding or
upon assignment for the benefit of creditors, or any other marshaling of the
assets and liabilities of the Company or otherwise:
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full in cash or cash equivalents (or have such payment duly
provided for) of the principal, premium, if any, and interest payable in respect
thereof before the Holders would be entitled to receive any payment on account
of the Principal of and interest on the Securities;
(b) any payment or distribution of assets of the Company of any kind
or character, from any source, whether in cash, property or securities, to which
the Holders or the Trustee on behalf of the Holders shall be entitled, except
for the subordination provisions of this Article 11, would be paid by the
liquidating trustee or agent or other person making such a payment or
distribution directly to the holders of Senior Indebtedness remaining unpaid or
unprovided for or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any of
such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness held or
represented by each, for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay or provide for the payment in
full in cash or cash equivalents of all such Senior Indebtedness, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness; and
50
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company from any source, whether in cash, property
or securities, shall be received by the Trustee or the Holders on account of
Principal of or interest on the Securities before all Senior Indebtedness is
paid in full in cash or cash equivalents (or such payment is duly provided for),
such payment or distribution (subject to the provision of Sections 11.06 and
11.07) shall be held in trust by the Trustee or such Holders for the benefit of
the holders of Senior Indebtedness, and shall be paid or delivered by the
Trustee or such Holders, as the case may be, to the holders of the Senior
Indebtedness remaining unpaid or unprovided for, or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate amounts remaining unpaid on account
of the Senior Indebtedness held or represented by each, for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay or provide for the payment in full in cash or cash equivalents of all such
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness, but only to the extent
that as to any holder of Senior Indebtedness, as promptly as practicable
following notice from the Trustee to the holders of Senior Indebtedness that
such prohibited payment has been received by the Trustee or Holder(s), such
holder (or a representative therefor) notifies the Trustee in writing of the
amounts then due and owing on the Senior Indebtedness, if any, held by such
holder and only the amounts specified in such notices to the Trustee shall be
paid to the holders of Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or
assignment for the benefit of creditors by the Company.
Section 11.04. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF SENIOR
INDEBTEDNESS. Subject to the payment in full in cash or cash equivalents of all
Senior Indebtedness (or provision made for its payment), the Holders of
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until all amounts owing on the Securities
shall be paid in full, in cash or cash equivalents and for the purpose of such
subrogation no such payments or distributions to the holders of Senior
Indebtedness by or on behalf of the Company, or by or on behalf of the Holders
by virtue of this Article 11, which otherwise would have been made to the
Holders shall, as between the Company and the Holders, be deemed to be payment
by the Company to or on account of the Senior Indebtedness, it being understood
that the provisions of this Article 11 are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of Senior Indebtedness, on the other hand. If any payment or
distribution to which the Holders would otherwise have been entitled but for the
provisions of this Article 11 shall have been applied, pursuant to the
provisions of this Article 11, to the payment of amounts payable under Senior
Indebtedness, then the Holders shall be entitled to receive from the holders of
such Senior Indebtedness any payments or distributions received by such holders
of Senior Indebtedness in excess of the amount sufficient to pay all amounts
payable under or in respect of the Senior Indebtedness in full in cash or cash
equivalents.
Section 11.05. OBLIGATIONS OF THE COMPANY UNCONDITIONAL. Nothing
contained in this Article 11 or elsewhere in this Indenture or in the Securities
is intended to or shall impair, as
51
between the Company and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the Principal of and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article 11, of the holders of Senior Indebtedness in respect of cash, property
or securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article 11 or elsewhere in this
Indenture or in the Securities, upon any distribution of assets of the Company
referred to in this Article 11, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceeding is
pending, or a certificate of the liquidating trustee or agent or other person
making any distribution to the Trustee or to the Holders for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 11.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a representative of such holder or a trustee under any
indenture under which any instruments evidencing any such Senior Indebtedness
may have been issued) to establish that such notice has been given by a holder
of such Senior Indebtedness or such representative or trustee on behalf such
holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the right of
such Person under this Article, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment or distribution.
Except as otherwise provided in this Section 11.05, in the event of
any inconsistency between the provisions of this Article 11, on the one hand,
and any other provision of this Indenture or any provision of the Securities, on
the other hand, the provisions of this Article 11 shall govern.
Section 11.06. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN
ABSENCE OF NOTICE. The Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Trustee unless and until a Responsible Officer of the Trustee shall
have received, no later than three Business Days prior to such payment, written
notice thereof from the Company or from one or more holders of Senior
Indebtedness or from any representative therefor and, prior to the receipt of
any such written notice, the Trustee shall be entitled in all respects
conclusively to assume that no such fact exists.
52
Section 11.07. APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT.
Money or U.S. Government Obligations deposited in trust with the Trustee
pursuant to and in accordance with Section 9.01, 9.02 or 9.03 shall be for the
sole benefit of Securityholders and, to the extent (i) the making of such
deposit by the Company shall not have been in contravention of any term or
provision of any agreement creating or evidencing Senior Indebtedness and (ii)
allocated for the payment of Securities, shall not be subject to the
subordination provisions of this Article 10. Otherwise, any deposit of assets by
the Company with the Trustee or any Paying Agent (whether or not in trust) for
the payment of Principal of or interest on any Securities shall be subject to
the provisions of Sections 11.01, 11.02, 11.03 and 11.04; PROVIDED, that, if
prior to the second Business Day preceding the date on which by the terms of
this Indenture any such assets may become distributable for any purpose
(including without limitation, the payment of either Principal of or interest on
any Securities) the Trustee or such Paying Agent shall not have received with
respect to such assets the written notice provided for in Section 11.06, then
the Trustee or such Paying Agent shall have full power and authority to receive
such assets and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary which may be received by
it on or after such date.
Section 11.08. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF THE COMPANY, THE TRUSTEE, HOLDERS OF SENIOR INDEBTEDNESS OR SECURITYHOLDERS.
No act, or failure to act, of any holder of the Senior Indebtedness or their
respective representatives (including, without limitation, any action referred
to in this Section 11.08), the Company, the Trustee, any Holder or any other
Person in accordance with the terms, covenants or the provisions of this Article
11 (regardless of any knowledge thereof which any such holder of the Senior
Indebtedness may have or otherwise be charged with) or any reorganization or
similar proceeding with respect to the Company shall affect the provisions of
this Article 11, the obligations owed by the Company, the Trustee or any Holder
to the holders of the Senior Indebtedness under this Article 11 or the rights of
any holder of Senior Indebtedness under this Article 11.
The Company, the Trustee and each Holder hereby agree that the taking
of any of the following actions, with or without notice, by the holders of the
Senior Indebtedness and their respective representatives, will not in any way
affect the provisions of this Article 11: (i) changing the manner, place or
terms of payment or extending the time of payment of, or renewing or altering,
any agreement or instrument creating, evidencing or governing any Senior
Indebtedness, or consenting to any amendment or change of any terms of any such
agreement or instrument, each as amended from time to time; (ii) granting
extensions or renewals of any such agreement or instrument and any other
indulgence with respect thereto, or effecting any release, compromise or
settlement with respect thereto; (iii) releasing any Person liable in any manner
for the payment or collection of any Senior Indebtedness; (iv) substituting,
exchanging or releasing or otherwise disposing of any item of security at any
time securing any Senior Indebtedness, whether or not the collateral, if any,
received upon the exercise of such power shall be of a character or value the
same as or different from the character or value of the item of security
released; (v) exercising or refraining from exercising any rights or remedies
against the Company or any other Person; and (vi) taking any other action, or
refraining from taking any action, that, in the absence of authority granted
hereby, could have the effect of impairing, invalidating or rendering
unenforceable, in whole or in part, or otherwise affecting, any of the
provisions of this Article 11.
53
Section 11.09. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES. Each Holder of the Securities by his or her
acceptance thereof authorizes and expressly directs the Trustee on his or her
behalf to take such action in accordance with the terms of this Indenture as may
be necessary or appropriate to effectuate the subordination provisions contained
in this Article 11 and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his or her attorney-in-fact for such
purpose, including, in the event of any dissolution, winding up, liquidation or
any reorganization or similar preceding with respect to the Company (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company) tending towards liquidation of the business and assets of the Company,
the immediate filing of a claim for the unpaid balance of his or her Securities
in the form required in said proceedings and cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days before the expiration of the time to file
such claim or claims, then the holders of the Senior Indebtedness or their
respective representatives are hereby authorized to have the right to file and
are hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness or their respective
representatives to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their respective
representatives to vote in respect of the claim of any Securityholder in any
such proceeding.
Section 11.10. RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS. The
Trustee shall be entitled to all of the rights set forth in this Article 11 in
respect of any Senior Indebtedness at any time held by it to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
Section 11.11. ARTICLE 11 NOT TO PREVENT EVENTS OF DEFAULT. The
failure to make a payment on account of Principal of or interest on the
Securities by reason of any provision of this Article 11 shall not be construed
as preventing the occurrence of a Default or an Event of Default under Section
7.01 or in any way prevent the Holders from exercising any right hereunder other
than the right to receive payment on the Securities.
Section 11.12. NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct, bad faith or negligence) if it shall in
good faith mistakenly pay over or distribute to the Holders of Securities or the
Company or any other person, cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article 11 or
otherwise. Nothing in this Section 11.12 shall affect the obligation of any
other such person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness or their representative.
54
ARTICLE 12
SUBORDINATION OF THE GUARANTEE
Section 12.01. GUARANTEE SUBORDINATED TO GUARANTOR SENIOR
INDEBTEDNESS. The Guarantor, for itself and its successors, and each Holder, by
his or her acceptance of Securities, agrees that the obligations of the
Guarantor under the Guarantee are subordinated, to the extent and in the manner
provided in this Article 12, to the right of payment in full to all present and
future Guarantor Senior Indebtedness, and that these subordination provisions
are for the benefit of the holders of Guarantor Senior Indebtedness. The
provisions of this Article 12 are for the benefit of the holders of the
Guarantor Senior Indebtedness from time to time (and their successors and
assigns) and shall be enforceable directly by them and their respective
representatives directly against the Guarantor, the Trustee and the Holders (and
their successors and assigns). The provisions of this Article 12 shall be a
continuing agreement and shall be irrevocable and shall remain in full force and
effect until payment in the full of the Guarantor Senior Indebtedness in cash or
cash equivalents, and shall constitute a continuing and irrevocable offer to all
Persons who become holders of, or continue to hold, Guarantor Senior
Indebtedness (whether such Guarantor Senior Indebtedness was created or acquired
before or after the issuance of the Securities), each of which holders shall be
deemed for the purposes hereof to have acquired Guarantor Senior Indebtedness in
reliance upon the provisions of this Article 12. The provision of this Article
12 shall survive the commencement of any reorganization or other proceedings
with respect to the Guarantor or any other Person and the discharge of any claim
in connection with such reorganization or other proceedings, including, without
limitation, the discharge of any Guarantor Senior Indebtedness.
The holders of the Guarantor Senior Indebtedness and their respective
representatives are hereby authorized to demand specific performance of the
provisions of this Article 12 at any time when the Guarantor or any Holder shall
have failed to comply with any provision of this Article 12 applicable to it,
and the Guarantor and each Holder hereby irrevocably waives any defense based on
the adequacy of a remedy at law that might be asserted as a bar to the remedy of
specific performance hereof in any action brought therefor by the holders of the
Guarantor Senior Indebtedness and their respective representatives.
Section 12.02. NO PAYMENT ON GUARANTEE IN CERTAIN CIRCUMSTANCES. (a)
No payment shall be made by or on behalf of the Guarantor on account of any
obligation or, to the extent the subordination thereof is permitted by
applicable law, claim in respect of the Guarantee, including the Principal of or
interest on the Securities, or to redeem (or make a deposit in redemption of),
defease (other than payments made by the Trustee pursuant to Article 9 with
respect to a defeasance permitted by this Indenture, including the subordination
provisions herein) or acquire any of the Securities for cash, property or
securities, (i) upon the maturity of the Guarantor Senior Indebtedness with an
aggregate principal amount in excess of $100 million by lapse of time,
acceleration or otherwise, unless and until all principal of, premium, if any,
and interest on such Guarantor Senior Indebtedness and all other obligations in
respect thereof shall first be paid in full in cash or cash equivalents or such
payment is duly provided for, or unless and until any such maturity by
acceleration has been rescinded or waived or (ii) in the event of default in
payment of any principal of, premium, if any, or interest on or any other amount
payable in respect of the Guarantor Senior Indebtedness with an aggregate
principal amount in
55
excess of $100 million when it becomes due and payable, whether at maturity or
at a date fixed for prepayment or by declaration or otherwise, unless and until
such payment default has been cured or waived or has otherwise ceased to exist.
(b) In the event that, notwithstanding the foregoing provision of this
Section 12.02, any payment or distribution of assets of the Guarantor from any
source whether in cash, property or securities, shall be received by the Trustee
or the Holders on account of any obligation or claim in respect of the Guarantee
at a time when such payment or distribution is prohibited by the foregoing
provision, such payment or distribution (subject to the provisions of Sections
12.06 and 12.07) shall be held in trust for the benefit of the holders of
Guarantor Senior Indebtedness, and shall be paid or delivered by the Trustee or
such Holders, as the case may be, to the holders of the Guarantor Senior
Indebtedness remaining unpaid or unprovided for or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Guarantor Senior Indebtedness may
have been issued, ratably according to the aggregate amounts remaining unpaid on
account of the Guarantor Senior Indebtedness held or represented by each, for
application to the payment of all Guarantor Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full in
cash or cash equivalents of all such Guarantor Senior Indebtedness, after giving
effect to any concurrent payment or distribution and all provisions therefor to
the holders of such Guarantor Senior Indebtedness, but only to the extent that
as to any holder of Guarantor Senior Indebtedness, as promptly as practicable
following notice from the Trustee to the holders of Guarantor Senior
Indebtedness that such prohibited payment has been received by the Trustee or
Holder(s), such holder (or a representative therefor) notifies the Trustee in
writing of the amounts then due and owing on the Guarantor Senior Indebtedness,
if any, held by such holder and only the amounts specified in such notices to
the Trustee shall be paid to the holders of Guarantor Senior Indebtedness.
The Guarantor shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any acceleration
under any Guarantor Senior Indebtedness or under any agreement pursuant to which
Guarantor Senior Indebtedness may have been issued.
Section 12.03. GUARANTEE SUBORDINATED TO PRIOR PAYMENT OF ALL
GUARANTOR SENIOR INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION OF
GUARANTOR. Upon any distribution of assets of the Guarantor upon any
dissolution, winding up, total or partial liquidation or reorganization or
readjustment of the Guarantor, whether voluntary or involuntary, in bankruptcy,
insolvency or similar proceeding or upon assignment for the benefit of
creditors, or any other marshaling of the assets and liabilities of the
Guarantor or otherwise:
(a) the holders of all Guarantor Senior Indebtedness would first be
entitled to receive payment in full in cash or cash equivalents (or have such
payment duly provided for) of the principal, premium, if any, and interest
payable in respect thereof before the Holders would be entitled to receive any
payment under the Guarantee in respect of the Principal of and interest on the
Securities;
(b) any payment or distribution of assets of the Guarantor of any kind
or character, from any source, whether in cash, property or securities to which
the Holders or the
56
Trustee on behalf of the Holders would be entitled, except for the subordination
provisions of this Article 12, would be paid by the liquidating trustee or agent
or other person making such a payment or distribution directly to the holders of
Guarantor Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Guarantor
Senior Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the Guarantor Senior Indebtedness held or
represented by each, for application to the payment of all Guarantor Senior
Indebtedness remaining unpaid, to the extent necessary to pay or provide for the
payment in full in cash or cash equivalents of all such Guarantor Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of such Guarantor Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Guarantor from any source, whether in cash,
property or securities, shall be received by the Trustee or the Holders under
the Guarantee before all Guarantor Senior Indebtedness is paid in full in cash
or cash equivalents (or such payment is duly provided for), such payment or
distribution (subject to the provisions of Sections 12.06 and 12.07) shall be
held in trust by the Trustee or such Holders for the benefit of the holders of
the Guarantor Senior Indebtedness, and shall be paid or delivered by the Trustee
or such Holders, as the case may be, to the holders of Guarantor Senior
Indebtedness remaining unpaid or unprovided for, or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any such Guarantor Senior Indebtedness may have
been issued, ratably according to the respective amounts remaining unpaid on
account of the Guarantor Senior Indebtedness held or represented by each, for
application to the payment of all Guarantor Senior Indebtedness remaining
unpaid, to the extent necessary to make payment in full (except as such payment
otherwise shall have been provided for) of all Guarantor Senior Indebtedness
remaining unpaid after giving effect to all concurrent payments and
distributions and all provisions therefor to the holders of such Guarantor
Senior Indebtedness, but only to the extent that as to any holder of Guarantor
Senior Indebtedness, as promptly as practicable following notice from the
Trustee to the holders of Guarantor Senior Indebtedness that such prohibited
payment has been received by the Trustee or Holder(s), such holder (or a
representative therefor) notifies the Trustee in writing of the amounts then due
and owing on the Guarantor Senior Indebtedness, if any, held by such holder and
only the amounts specified in such notices to the Trustee shall be paid to the
holders of Guarantor Senior Indebtedness.
The Guarantor shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Guarantor or
assignment for the benefit of creditors by the Guarantor.
Section 12.04. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF GUARANTOR
SENIOR INDEBTEDNESS. Subject to the payment in full in cash or cash equivalents
of all Guarantor Senior
57
Indebtedness (or provision made for its payment), the
holders of the Guarantee endorsed on the Securities shall be subrogated to the
rights of the holders of such Guarantor Senior Indebtedness to receive payments
or distributions of assets of the Guarantor applicable to the Guarantor Senior
Indebtedness until all amounts owing on the Securities shall be paid in full, in
cash or cash equivalents and for the purpose of such subrogation no such
payments or distributions to the holders of Guarantor Senior Indebtedness by or
on behalf of the Guarantor, or by or on behalf of the Holders by virtue of this
Article 12, which otherwise would have been made to the Holders shall, as
between the Guarantor and the Holders, be deemed to be payment by the Guarantor
to or on account of the Guarantor Senior Indebtedness, it being understood that
the provisions of this Article 12 are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
Guarantor Senior Indebtedness, on the other hand. If any payment or distribution
to which the Holders would otherwise have been entitled but for the provisions
of this Article 12 shall have been applied, pursuant to the provisions of this
Article 12, to the payment of amounts payable under Guarantor Senior
Indebtedness, then the Holders shall be entitled to receive from the holders of
such Guarantor Senior Indebtedness any payments or distributions received by
such holders of Guarantor Senior Indebtedness in excess of the amount sufficient
to pay all amounts payable under or in respect of the Guarantor Senior
Indebtedness in full in cash or cash equivalents.
Section 12.05. OBLIGATIONS OF THE GUARANTOR UNCONDITIONAL. Nothing
contained in this Article 12 or elsewhere in this Indenture or in the Securities
or the Guarantee is intended to or shall impair, as between the Guarantor and
the Holders, the obligation of the Guarantor, which is absolute and
unconditional, to pay to the Holders any payment due under the Guarantee in
respect of the Principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders and creditors of the
Guarantor other than the holders of the Guarantor Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 12, of the holders
of Guarantor Senior Indebtedness in respect of cash, property or securities of
the Guarantor received upon the exercise of any such remedy. Notwithstanding
anything to the contrary in this Article 12 or elsewhere in this Indenture or in
the Securities or in the Guarantee, upon any distribution of assets of the
Guarantor referred to in this Article 12, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceeding is pending, or a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Guarantor Senior Indebtedness and other
indebtedness of the Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 12.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Guarantor
Senior Indebtedness (or a representative of such holder or a trustee under any
indenture under which any instruments evidencing any such Guarantor Senior
Indebtedness may have been issued) to establish that such notice has been given
by a holder of such Guarantor Senior Indebtedness or such representative or
trustee on behalf such holder. In the event that the Trustee determines in good
faith that further evidence is
58
required with respect to the right of any Person as a holder of Guarantor Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Guarantor Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
right of such Person under this Article, and, if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment or distribution.
Except as otherwise provided in this Section 12.05, in the event of
any inconsistency between the provisions of this Article 12, on the one hand,
and any other provision of this Indenture or any provision of the Securities or
the Guarantee, on the other hand, the provisions of this Article 12 shall
govern.
Section 12.06. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN
ABSENCE OF NOTICE. The Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Trustee unless and until a Responsible Officer of the Trustee shall
have received, no later than three Business Days prior to such payment, written
notice thereof from the Guarantor or from one or more holders of Guarantor
Senior Indebtedness or from any representative therefor and, prior to the
receipt of any such written notice, the Trustee shall be entitled in all
respects conclusively to assume that no such fact exists.
Section 12.07. APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT.
Money or U.S. Government Obligations deposited in trust with the Trustee
pursuant to and in accordance with Section 9.01, 9.02 or 9.03 shall be for the
sole benefit of Securityholders and, to the extent (i) the making of such
deposit by the Guarantor shall not have been in contravention of any term or
provision of any agreement creating or evidencing Guarantor Senior Indebtedness
and (ii) allocated for the payment under the Securities (pursuant to the
Guarantee), shall not be subject to the subordination provisions of this Article
12. Otherwise, any deposit of assets by the Guarantor with the Trustee or any
Paying Agent (whether or not in trust) for the payment under the Guarantee of
Principal of or interest on the Securities shall be subject to the provisions of
Sections 12.01, 12.02, 12.03 and 12.04; PROVIDED, that, if prior to the second
Business Day preceding the date on which by the terms of this Indenture any such
assets may become distributable for any purpose (including without limitation,
the payment of either Principal of or interest on any Securities) the Trustee or
such Paying Agent shall not have received with respect to such assets the
written notice provided for in Section 12.06, then the Trustee or such Paying
Agent shall have full power and authority to receive such assets and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such date.
Section 12.08. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF THE GUARANTOR, THE COMPANY, THE TRUSTEE, HOLDERS OF GUARANTOR SENIOR
INDEBTEDNESS OR SECURITYHOLDERS. No act, or failure to act, of any holder of the
Guarantor Senior Indebtedness or their respective representatives (including,
without limitation, any action referred to in this Section 12.08), the
Guarantor, the Trustee, any Holder or any other Person in accordance with the
terms, covenants or the provisions of this Article 12 (regardless of any
knowledge thereof
59
which any such holder of the Guarantor Senior Indebtedness may have or otherwise
be charged with) or any reorganization or similar proceeding with respect to the
Guarantor shall affect the provisions of this Article 12, the obligations owed
by the Guarantor, the Trustee or any Holder to the holders of the Guarantor
Senior Indebtedness under this Article 12 or the rights of any holder of
Guarantor Senior Indebtedness under this Article 12.
The Guarantor, the Trustee and each Holder hereby agree that the
taking of any of the following actions, with or without notice, by the holders
of the Guarantor Senior Indebtedness and their respective representatives, will
not in any way affect the provisions of this Article 12: (i) changing the
manner, place or terms of payment or extending the time of payment of, or
renewing or altering, any agreement or instrument creating, evidencing or
governing any Guarantor Senior Indebtedness, or consenting to any amendment or
change of any terms of any such agreement or instrument, each as amended from
time to time; (ii) granting extensions or renewals of any such agreement or
instrument and any other indulgence with respect thereto, or effecting any
release, compromise or settlement with respect thereto; (iii) releasing any
Person liable in any manner for the payment or collection of any Guarantor
Senior Indebtedness; (iv) substituting, exchanging or releasing or otherwise
disposing of any item of security at any time securing any Guarantor Senior
Indebtedness, whether or not the collateral, if any, received upon the exercise
of such power shall be of a character or value the same as or different from the
character or value of the item of security released; (v) exercising or
refraining from exercising any rights or remedies against the Guarantor or any
other Person; and (vi) taking any other action, or refraining from taking any
action, that, in the absence of authority granted hereby, could have the effect
of impairing, invalidating or rendering unenforceable, in whole or in part, or
otherwise affecting, any of the provisions of this Article 12.
Section 12.09. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF GUARANTEE. Each holder of the Guarantee endorsed on the
Securities by his or her acceptance thereof authorizes and expressly directs the
Trustee on his or her behalf to take such action in accordance with the terms of
this Indenture as may be necessary or appropriate to effectuate the
subordination provisions contained in this Article 12 and to protect the rights
of the Holders pursuant to this Indenture, and appoints the Trustee his or her
attorney-in-fact for such purpose, including, in the event of any dissolution,
winding up, liquidation or any reorganization or similar preceding with respect
to the Guarantor (whether in bankruptcy, insolvency or receivership proceedings
or upon an assignment for the benefit of creditors or any other marshalling of
assets and liabilities of the Guarantor) tending towards liquidation of the
business and assets of the Guarantor, the immediate filing of a claim for the
unpaid balance of his or her Securities in the form required in said proceedings
and cause said claim to be approved. If the Trustee does not file a proper claim
or proof of debt in the form required in such proceeding prior to 30 days before
the expiration of the time to file such claim or claims, then the holders of the
Guarantor Senior Indebtedness or their respective representatives are hereby
authorized to have the right to file and are hereby authorized to file an
appropriate claim for and on behalf of the holders of the Guarantee endorsed on
the Securities. Nothing herein contained shall be deemed to authorize the
Trustee or the holders of Guarantor Senior Indebtedness or their respective
representatives to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Guarantee, the Securities or the rights of any Holder
thereof, or to authorize the Trustee or the
60
holders of Guarantor Senior Indebtedness or their respective representatives to
vote in respect of the claim of any Securityholder in any such proceeding.
Section 12.10. RIGHT OF TRUSTEE TO HOLD GUARANTOR SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all of the rights set forth in this Article 12
in respect of any Guarantor Senior Indebtedness at any time held by it to the
same extent as any other holder of Guarantor Senior Indebtedness, and nothing in
this Indenture shall be construed to deprive the Trustee of any of its rights as
such holder.
Section 12.11. ARTICLE 12 NOT TO PREVENT EVENTS OF DEFAULT. The
failure to make a payment under the Guarantee on account of Principal of or
interest on the Securities by reason of any provision of this Article 12 shall
not be construed as preventing the occurrence of a Default or an Event of
Default under Section 7.01 or in any way prevent the Holders from exercising any
right hereunder other than the right to receive payment under the Guarantee on
the Securities.
Section 12.12. NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF GUARANTOR
SENIOR INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Guarantor Senior Indebtedness, and shall not be liable to any
such holders (other than for its willful misconduct, bad faith or negligence) if
it shall in good faith mistakenly pay over or distribute to the holders of the
Guarantee endorsed on the Securities or the Guarantor or any other person, cash,
property or securities to which any holders of Guarantor Senior Indebtedness
shall be entitled by virtue of this Article 12 or otherwise. Nothing in this
Section 12.12 shall affect the obligation of any other such person to hold such
payment for the benefit of, and to pay such payment over to, the holders of
Guarantor Senior Indebtedness or their representative.
ARTICLE 13
MISCELLANEOUS
Section 13.01. TRUST INDENTURE ACT OF 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
Section 13.02. NOTICES. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person, when received or
(b) if mailed by first class mail, 5 days after mailing, or (c) as between any
two of the Company, the Guarantor and the Trustee if sent by facsimile
transmission, when transmission is confirmed, in each case addressed as follows:
if to the Company:
Credit Suisse Group Finance (Delaware) LLC I
Helvetia Court
South Esplanade
St. ▇▇▇▇▇ Port
Guernsey, Channel Islands GYI 3WF
Facsimile No.: ▇▇▇-▇▇▇▇-▇▇▇-▇▇▇
Attention: CS Group New Business Dept.
61
with a copy to the Guarantor at the address indicated below
if to the Guarantor:
Credit Suisse Group
▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇.▇. ▇▇▇ ▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇-▇-▇▇▇-▇▇▇▇
Attention: General Counsel
if to the Trustee:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Company, the Guarantor or the Trustee by written notice to the
other may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper in The City of New York and at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act at such addresses as were so furnished to the Trustee and to Holders of
Registered Securities by mailing to such Holders at their addresses as they
shall appear on the Security Register. Notice mailed shall be sufficiently given
if so mailed within the time prescribed. Copies of any such communication or
notice to a Holder shall also be mailed to the Trustee and each Agent at the
same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 13.02, it is duly given, whether or not the
addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. In case it shall be impracticable to give notice as
herein contemplated, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
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Section 13.03. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or the Guarantor to the Trustee
to take any action under this Indenture, the Company or the Guarantor, as the
case may be, shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 13.04. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such certificate
or opinion is based;
(c) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; PROVIDED, HOWEVER,
that, with respect to matters of fact, an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
Section 13.05. EVIDENCE OF OWNERSHIP. The Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the Trustee may deem and
treat the Holder of any Unregistered Security and the Holder of any coupon as
the absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes, and neither
the Company, the Guarantor, the Trustee, nor any agent of the Company, the
Guarantor or the Trustee shall be affected by any notice to the contrary. The
fact of the holding by any Holder of an Unregistered Security, and the
identifying number of such Security and the date of his holding the same, may be
proved by the production of such Security or by a certificate executed by any
trust company, bank, banker or recognized securities dealer wherever situated
satisfactory to the Trustee, if such certificate shall be deemed by the Trustee
to be satisfactory.
Each such certificate shall be dated and shall state that on the date
thereof a Security bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer by
the person named in such certificate. Any such certificate may be issued in
respect of one or more Unregistered Securities specified therein. The holding by
the person named in any such certificate of any Unregistered Securities
63
specified therein shall be presumed to continue for a period of one year from
the date of such certificate unless at the time of any determination of such
holding (a) another certificate bearing a later date issued in respect of the
same Securities shall be produced or (b) the Security specified in such
certificate shall be produced by some other Person, or (c) the Security
specified in such certificate shall have ceased to be outstanding. Subject to
Article 8, the fact and date of the execution of any such instrument and the
amount and numbers of Securities held by the Person so executing such instrument
may also be proven in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in any other manner which the Trustee may
deem sufficient.
The Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor, or the Trustee may deem and treat the person in whose name any
Registered Security shall be registered upon the Security Register for such
series as the absolute owner of such Registered Security (whether or not such
Registered Security 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 and, subject to the provisions of this Indenture,
interest on such Registered Security and for all other purposes; and neither the
Company, the Guarantor, the Trustee nor any agent of the Company, the Guarantor
or the Trustee shall be affected by any notice to the contrary.
Section 13.06. RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
Section 13.07. PAYMENT DATE OTHER THAN A BUSINESS DAY. If any date for
payment of Principal or interest on any Security shall not be a Business Day at
any place of payment, then payment of Principal of or interest on such Security,
as the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect
as if made on such date and no interest shall accrue in respect of such payment
for the period from and after such date.
Section 13.08. GOVERNING LAW. The laws of the State of New York
(without regard to conflicts of laws principles thereof) shall govern this
Indenture, the Guarantee and the Securities.
Section 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company, the Guarantor or any Subsidiary of the Company or the
Guarantor. Any such indenture or agreement may not be used to interpret this
Indenture.
Section 13.10. SUCCESSORS. All agreements of the Company and the
Guarantor in this Indenture, the Guarantee and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 13.11. DUPLICATE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
64
Section 13.12. SEPARABILITY. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 13.13. TABLE OF CONTENTS, HEADINGS, ETC.. The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
Section 13.14. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
COMPANY EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Company, of the Guarantor or of
any successor, either directly or through the Company, the Guarantor or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities and the coupons appertaining thereto by the holders
thereof and as part of the consideration for the issue of the Securities and the
coupons appertaining thereto.
Section 13.15. JUDGMENT CURRENCY. The Company and the Guarantor
severally agree, to the fullest extent that they may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum due in respect of the Principal of or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a Business Day in The
City of New York, 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 Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the Business Day in The City of New York
preceding the day on which a final unappealable judgment is entered and (b)
their obligations under this Indenture to make payments in the Required 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 Required 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 Required 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 Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Indenture.
65
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
CREDIT SUISSE GROUP FINANCE
(DELAWARE) LLC I,
as the Company
By:
------------------------------------
Name:
Title:
CREDIT SUISSE GROUP,
as the Guarantor
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Trustee
By:
------------------------------------
Authorized Signatory
66