Exhibit 4.200
STB Draft 10/19/03
FORM OF SUBORDINATED INDENTURE
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PEABODY ENERGY CORPORATION
ISSUER
and
US BANK NATIONAL ASSOCIATION
TRUSTEE
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SUBORDINATED INDENTURE
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DATED AS OF ________, 2003
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PEABODY ENERGY CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of ________, 2003
TRUST INDENTURE ACT SECTION INDENTURE SECTION
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Section 310 (a)(1)...................................... 6.09
(a)(2)...................................... 6.09
(a)(3)...................................... Not Applicable
(a)(4)...................................... Not Applicable
(b)......................................... 6.08
6.10
Section 311 (a)......................................... 6.13(a)
(b)......................................... 6.13(b)
Section 312 (a)......................................... 7.01
7.02(a)
(b)......................................... 7.02(b)
(c)......................................... 7.02(c)
Section 313 (a)......................................... 7.03(a)
(b)......................................... 7.03(b)
(c)......................................... 7.03(a)
7.03(b)
(d)......................................... 7.03(c)
Section 314 (a)......................................... 7.04
(c)(1)...................................... 1.02
(c)(2)...................................... 1.02
(c)(3)...................................... Not Applicable
(d)......................................... Not Applicable
(e)......................................... 1.02
Section 315 (a)......................................... 6.01(a)
(b)......................................... 6.02
(c)......................................... 6.01(b)
(d)......................................... 6.01(c)
(d)(1)...................................... 6.01(c)
(d)(2)...................................... 6.01(c)(2)
(d)(3)...................................... 6.01(c)(3)
(e)......................................... 5.09
Section 316 (a)......................................... 5.08
(a)(1)(A)................................... 5.08
(a)(1)(B)................................... 5.02
5.08
(a)(2)...................................... Not Applicable
(b)......................................... 5.05
Section 317 (a)(1)...................................... 5.03
(a)(2)...................................... 5.03
(b)......................................... 10.03
Section 318 (a)......................................... 1.07
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Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
PAGE
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........................................... 1
SECTION 1.01. Definitions............................................................................... 1
SECTION 1.02. Acts of Holders........................................................................... 7
ARTICLE TWO SECURITY FORMS.................................................................................... 8
SECTION 2.01. Forms Generally........................................................................... 8
SECTION 2.02. Form of Trustee's Certificate of Authentication........................................... 8
SECTION 2.03. Securities in Global Form................................................................. 8
ARTICLE THREE THE SECURITIES.................................................................................. 9
SECTION 3.01. Amount Unlimited; Issuable in Series...................................................... 9
SECTION 3.02. Denominations............................................................................. 10
SECTION 3.03. Authentication and Dating................................................................. 11
SECTION 3.04. Execution of Securities................................................................... 12
SECTION 3.05. Exchange and Registration of Transfer of Securities....................................... 12
SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities........................................... 13
SECTION 3.07. Temporary Securities...................................................................... 13
SECTION 3.08. Payment of Interest; Interest Rights Preserved............................................ 15
SECTION 3.09. Persons Deemed Owners..................................................................... 16
SECTION 3.10. Cancellation.............................................................................. 17
SECTION 3.11. Computation of Interest................................................................... 17
SECTION 3.12. CUSIP Numbers............................................................................. 17
ARTICLE FOUR SATISFACTION AND DISCHARGE....................................................................... 17
SECTION 4.01. Satisfaction and Discharge of Indenture................................................... 17
SECTION 4.02. Application of Trust Money................................................................ 18
ARTICLE FIVE REMEDIES ........................................................................................ 18
SECTION 5.01. Events of Default......................................................................... 18
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment........................................ 20
SECTION 5.03. Payment of Securities on Default; Suit Therefor........................................... 21
SECTION 5.04. Application of Moneys Collected by Trustee................................................ 22
SECTION 5.05. Proceedings by Holders.................................................................... 23
SECTION 5.06. Proceedings by Trustee.................................................................... 24
SECTION 5.07. Remedies Cumulative and Continuing........................................................ 24
SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders.................... 24
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SECTION 5.09. Undertaking to Pay Costs.................................................................. 24
ARTICLE SIX THE TRUSTEE ...................................................................................... 25
SECTION 6.01. Certain Duties and Responsibilities....................................................... 25
SECTION 6.02. Notice of Defaults........................................................................ 26
SECTION 6.03. Certain Rights of Trustee................................................................. 26
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.................................... 28
SECTION 6.05. May Hold Securities....................................................................... 28
SECTION 6.06. Money Held in Trust....................................................................... 28
SECTION 6.07. Compensation and Reimbursement............................................................ 28
SECTION 6.08. Disqualification; Conflicting Interests................................................... 29
SECTION 6.09. Corporate Trustee Required; Eligibility................................................... 29
SECTION 6.10. Resignation and Removal; Appointment of Successor......................................... 30
SECTION 6.11. Acceptance of Appointment by Successor.................................................... 31
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business............................... 32
SECTION 6.13. Preferential Collection of Claims Against Company......................................... 32
SECTION 6.14. Appointment of Authenticating Agent....................................................... 36
ARTICLE SEVEN HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY............................................... 37
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders................................. 37
SECTION 7.02. Preservation of Information; Communications to Holders.................................... 38
SECTION 7.03. Reports by Trustee........................................................................ 39
SECTION 7.04. Reports by Company........................................................................ 40
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE................................................ 41
SECTION 8.01. Consolidations and Mergers of Company and Conveyances Permitted Subject to Certain
Conditions ............................................................................. 41
SECTION 8.02. Rights and Duties of Successor Corporation................................................ 41
SECTION 8.03. Officers' Certificate and Opinion of Counsel.............................................. 42
ARTICLE NINE SUPPLEMENTAL INDENTURES.......................................................................... 42
SECTION 9.01. Supplemental Indentures without Consent of Holders........................................ 42
SECTION 9.02. Supplemental Indentures with Consent of Holders........................................... 44
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures.................... 45
SECTION 9.04. Notation on Securities.................................................................... 45
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee.................. 45
ARTICLE TEN COVENANTS ........................................................................................ 45
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SECTION 10.01. Payment of Principal and Interest........................................................ 45
SECTION 10.02. Maintenance of Office or Agency.......................................................... 46
SECTION 10.03. Money for Security Payments to be Held in Trust.......................................... 46
SECTION 10.04. Payment of Taxes and Other Claims........................................................ 47
SECTION 10.05. Maintenance of Properties................................................................ 47
SECTION 10.06. Statement as to Default.................................................................. 48
SECTION 10.07. Corporate Existence...................................................................... 48
SECTION 10.08. Waiver of Certain Covenants.............................................................. 48
SECTION 10.09. Calculation of Original Issue Discount................................................... 48
SECTION 10.10. Reports.................................................................................. 48
ARTICLE ELEVEN REDEMPTION OF SECURITIES....................................................................... 49
SECTION 11.01. Applicability of Article................................................................. 49
SECTION 11.02. Notice of Redemption; Selection of Securities............................................ 49
SECTION 11.03. Payment of Securities Called for Redemption.............................................. 50
ARTICLE TWELVE SINKING FUNDS.................................................................................. 50
SECTION 12.01. Applicability of Article................................................................. 50
SECTION 12.02. Satisfaction of Mandatory Sinking Fund Payments with Securities.......................... 50
SECTION 12.03. Redemption of Securities for Sinking Fund................................................ 51
ARTICLE THIRTEEN DEFEASANCE..................................................................................... 55
SECTION 13.01. Applicability of Article................................................................. 55
SECTION 13.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations......................... 55
SECTION 13.03. Deposited Moneys and U.S. Government Obligations to Be Held in Trust..................... 57
SECTION 13.04. Repayment to Company..................................................................... 57
ARTICLE FOURTEEN SUBORDINATION.................................................................................. 58
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SECTION 14.01. Agreement to Subordinate................................................................. 58
SECTION 14.02. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities... 58
SECTION 14.03. No Payment on Securities in Event of Default on Senior Indebtedness...................... 59
SECTION 14.04. Payments on Securities Permitted......................................................... 59
SECTION 14.05. Trustee to Effectuate Subordination...................................................... 60
SECTION 14.06. Notices to Trustee....................................................................... 60
SECTION 14.07. Trustee as Holder of Senior Indebtedness................................................. 60
SECTION 14.08. Modification of Terms of Senior Indebtedness............................................. 61
SECTION 14.09. Reliance on Judicial Order or Certificate of Liquidation Agent........................... 61
ARTICLE FIFTEEN SUBORDINATED GUARANTEE....................................................................... 61
SECTION 15.01. Applicability of Article................................................................. 61
SECTION 15.02. Guarantee................................................................................ 61
SECTION 15.03. Guarantee Subordinated to Senior Debt of the Guarantor................................... 63
SECTION 15.04. Guarantors Not to Make Payments With Respect to Securities in Certain Circumstances...... 64
SECTION 15.05. Guarantee Subordinated to Prior Payment of All Senior Debt of a Guarantor on Dissolution,
Winding Up, Liquidation or Reorganization of the Guarantor............................. 66
SECTION 15.06. Holders to be Subrogated to Rights of Holders of Senior Debt of each Guarantor........... 68
SECTION 15.07. Obligations of the Guarantor Unconditional............................................... 68
SECTION 15.08. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice.................. 69
SECTION 15.09. Application by Trustee of Monies Deposited with It....................................... 69
SECTION 15.10. Subordination Rights Not Impaired by Acts or Omissions of a Guarantor or Holders of
Senior Debt of such Guarantor.......................................................... 69
SECTION 15.11. Holders Authorize Trustee to Effectuate Subordination of Securities...................... 70
SECTION 15.12. Right of Trustee to Hold Senior Debt of a Guarantor...................................... 70
SECTION 15.13. Trustee Not Fiduciary for Holders of Senior Debt of a Guarantor.......................... 70
SECTION 15.14. Article Fifteen Not To Prevent Events of Default......................................... 70
SECTION 15.15. Execution and Delivery of Guarantee...................................................... 71
ARTICLE SIXTEEN MISCELLANEOUS................................................................................ 71
SECTION 16.01. Form of Documents Delivered to Trustee................................................... 71
SECTION 16.02. Notices.................................................................................. 71
SECTION 16.03. Notice to Holders; Waiver................................................................ 73
SECTION 16.04. Trust Indenture Act Controls............................................................. 73
SECTION 16.05. Certificate and Opinion as to Conditions Precedent....................................... 73
SECTION 16.06. Statements Required in Certificate or Opinion............................................ 74
SECTION 16.07. Table of Contents, Headings, etc......................................................... 74
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SECTION 17.08. Successors and Assigns................................................................... 74
SECTION 17.09. Separability Clause...................................................................... 74
SECTION 17.10. Benefits of Indenture.................................................................... 74
SECTION 17.11. Rules by Trustee and Agents.............................................................. 75
SECTION 17.12. No Personal Liability of Directors, Officers, Employees and Stockholders................. 75
SECTION 17.13. Governing Law............................................................................ 75
SECTION 17.14. Legal Holidays........................................................................... 75
SECTION 17.15. Indenture and Securities Solely Corporate Obligations.................................... 75
SECTION 17.16. No Security Interest Created............................................................. 75
SECTION 17.17. Counterpart Originals.................................................................... 76
SECTION 17.18. No Adverse Interpretation of Other Agreements............................................ 76
v
FORM OF SUBORDINATED INDENTURE, dated as of ________, 2003 between Peabody
Energy Corporation, a Delaware corporation (hereinafter called the "Company"),
and US Bank National Association, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities"), as in this Indenture provided, up to
such principal amount or amounts as may from time to time be authorized in or
pursuant to one or more Board Resolutions; and
WHEREAS, all things necessary to make this Indenture a valid and legally
binding agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of
such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
2
"Act" when used with respect to any Holder has the meaning specified in
Section 1.02.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with") when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of 10%
or more of the Voting Stock of a Person shall be deemed to be control.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 6.14.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board or any director or directors and/or
officer or officers of the Company to whom that board or committee shall have
duly delegated its authority.
"Board Resolution" means (1) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, or (2) a certificate signed by the director or directors and/or
officer or officers to whom the Board of Directors or any duly authorized
committee of that board shall have duly delegated its authority, in each case
delivered to the Trustee for the Securities of any series.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York are
authorized or required by law or executive order to be closed.
"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 instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Company" means Peabody Energy Corporation, and any and all successors
thereto.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman of the Board,
the President or a Vice President (any reference to a Vice President of the
Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or a word or words added before or after
the title "Vice President"), and by the Chief Financial Officer, Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Corporate Trust Office" of the Trustee means the principal corporate
trust office of the Trustee at which at any particular time its corporate trust
business shall be principally
3
administered, which office as of the date hereof is located at Goodwin Square,
225 Asylum Street, Hartford, Connecticut 06103, Attention: Corporate Trust
Services.
"Covenant Defeasance Option" has the meaning specified in Section 13.02.
"Default" means any event that is, or after notice or lapse of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.08.
"Discharged" has the meaning specified in Section 13.02.
"Eligible Guarantors" means the Company's domestic Subsidiaries.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Security" means a Security evidencing all or part of a series of
Securities, including, without limitation, any temporary or permanent Global
Securities.
"Guarantee" has the meaning specified in Section 15.02.
"Guarantor" has the meaning specified in Section 3.01.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the form and terms of particular series of Securities established as
contemplated hereunder; provided, however, that if at any time more than one
Person is acting as Trustee under this instrument, "Indenture" shall mean with
respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such person is Trustee established as
contemplated by Section 3.01, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"interest" when used with respect to non-interest bearing Securities means
interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Security (in the case of an interest-bearing Security).
"Legal Defeasance Option" has the meaning specified in Section 13.02.
4
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Officer" of the Company means the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Financial Officer, the Treasurer,
the Controller, any Vice President or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Chief Financial Officer,
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel who is reasonably
acceptable to the Trustee, who may (except as otherwise expressly provided in
this Indenture) be counsel for the Company. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.02.
"Outstanding" when used with respect to Securities means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and aggregated
in trust by the Company (if the Company shall act as its own Paying
Agent), for the Holders of such Securities, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture;
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities that a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee established to the satisfaction of the Trustee the pledgee's right
so to
5
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purpose shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of the acceleration of the
maturity thereof pursuant to Section 5.02.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof, and shall include any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Exchange Act.
"Redemption Date" when used with respect to any Security to be redeemed
means the date fixed for such redemption by or pursuant to the Board Resolution
or supplemental indenture establishing the series of Securities of which the
Security to be redeemed is a member.
"Redemption Price" when used with respect to any Security to be redeemed
means the price at which it is to be redeemed pursuant to the Board Resolution
or supplemental indenture establishing the series of Securities of which the
Security to be redeemed is a member.
"Regular Record Date" for the interest payable on any Interest Payment
Date (in the case of an interest-bearing Security) means such date or dates as
may be fixed for such purpose in the Board Resolution or supplemental indenture
establishing the series of Securities of which the Security is a member.
"Responsible Officer" when used with respect to the Trustee means any
officer in the Corporate Trust Office of the Trustee and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture; provided, however, that if at any time there is more than one
Person acting as Trustee under this instrument, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this instrument and shall more particularly mean Securities
authenticated and delivered under this instrument, exclusive, however of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar", have the meanings specified
in Section 3.05.
"Senior Indebtedness" means the principal of (and premium, if any) and
unpaid interest on (i) indebtedness of the Company, whether outstanding on the
date of this Indenture or
6
thereafter created, incurred, assumed or guaranteed, for money borrowed (other
than the indebtedness evidenced by the Securities of any series), unless in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding it is provided that such indebtedness is not senior or prior in
right of payment to the Securities, and (ii) renewals, extensions, modifications
and refundings of any such indebtedness
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date of
this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.08.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subordinated Indebtedness" means any indebtedness that ranks pari passu
in right of payment to the Securities.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the outstanding
voting stock is owned, directly or indirectly, by the Company or by one or more
Subsidiaries, or by the Company and one or more Subsidiaries and (ii) any
partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are such Person or of one or more Subsidiaries of such Person
(or any combination thereof). For the purposes of this definition only, "voting
stock" means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee; provided, however, that if at any time there is more
than one such person, "Trustee" as used with respect to the Securities of any
series shall mean only the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, as in force and effect at the date as of
which this instrument was executed, except as provided in Section 9.03.
"United States" means the United States excluding its territories and
possessions.
"U.S. Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall in
either case be designated by the Corporation pursuant to Section 3.01, until a
successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is
7
more than one such Person, "U.S. Depositary" as used with respect to the
Securities of any series shall mean the U.S. Depositary with respect to the
Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section 13.02.
"Voting Stock" of a corporation means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
"Yield to Maturity" means the yield to maturity, calculated at the time of
issuance of a series of Securities or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
accepted financial practice.
SECTION 1.02. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01) conclusive in favor of the Trustee and the Company
and any agent of the Trustee or the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a
partnership or an official of a public or governmental body, on behalf of such
corporation, association, partnership, or public or governmental body or by a
fiduciary, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or suffered to be done by the Trustee, any Security Registrar, any Paying Agent,
any Authenticating Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Securities.
8
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities of each series shall be in
substantially such form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with any law or with any rules made pursuant
thereto or with any rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
US Bank National Association,
as Trustee
By:___________________________________
Authorized Signatory
Dated: ______________________________
SECTION 2.03. Securities in Global Form. If any Security of a series is
issuable in global form, such Global Security may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee and in such manner as shall be specified in
such Global Security. Any instructions by the Company with respect to a Global
Security, after its initial issuance, shall be in writing but need not comply
with Sections 15.05 or 15.06.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
9
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each such series shall rank equally and pari passu with the Securities of each
other series, but all Securities issued hereunder shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in Article
Fourteen, to all Senior Indebtedness of the Issuer. There shall be established
in or pursuant to a Board Resolution or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series, including CUSIP
Numbers (which shall distinguish the Securities of the series from all
other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.05, 3.06, 3.07, 9.04 or
11.03);
(3) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, or the method by which such rate or rates shall be
determined, if any, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined, the
interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is payable;
(5) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee, where the principal of (and
premium, if any) and interest on Securities of the series shall be
payable; the extent to which, or the manner in which, any interest payable
on any Global Security on an Interest Payment Date will be paid, if other
than in the manner provided in Section 3.08; and the manner in which any
principal of, or premium, if any, on, any Global Security will be paid, if
other than as set forth elsewhere herein;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any 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 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;
10
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
5.02 or provable in bankruptcy pursuant to Section 5.03;
(10) any Events of Default with respect to the Securities of a
particular series, if not set forth herein or if other than as set forth
herein;
(11) the extent to which the defeasance provisions of this Indenture
do not apply to the Securities of the series;
(12) whether the Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case,
the U.S. Depositary for such Global Security or Securities; the manner in
which and the circumstances under which Global Securities representing
Securities of the series may be exchanged for Securities in definitive
form, if other than, or in addition to, the manner and circumstances
specified in Section 3.07;
(13) the ranking of the Securities of such series, if other than on
a parity with all other unsecured, unsubordinated indebtedness of the
Company;
(14) provisions, if any, with regard to the conversion or exchange
of the Securities of such series, at the option of the Holders thereof or
the Company, as the case may be, for or into new Securities of a different
series or common stock or other securities of the Company;
(15) which, if any, of the Eligible Guarantors shall guarantee the
Securities on the terms set forth in Article Fifteen (each of the Eligible
Guarantors that guarantee the Debt Securities set forth in Article
Fifteen, if any, a "Guarantor");
(16) the ranking of the obligations of each Guarantor under its
respective Guarantee, if other than on parity with all other unsecured,
unsubordinated indebtedness of such Guarantor;
(17) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such resolution of the Board of Directors or in any such indenture supplemental
hereto.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in registered form without coupons in such denominations as shall be
specified as contemplated by
11
Section 3.01. In the absence of any such specification with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Authentication and Dating. At any time and from time to time
after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for
authentication. Except as otherwise provided in this Article Three, the Trustee
shall thereupon authenticate and deliver said Securities to or upon a Company
Order, signed by two Officers of the Company by manual or facsimile signature.
In authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall receive,
and (subject to Section 6.01) shall be fully protected in relying upon:
(1) a copy of any Board Resolution relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant
secretary of the Company;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate; and
(4) an Opinion of Counsel, which shall also state:
(a) that the form of such Securities has been established by
or pursuant to a Board Resolution or by a supplemental indenture as
permitted by Section 2.01 in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities have been established by
or pursuant to a Board Resolution or by a supplemental indenture as
permitted by Section 3.01 in conformity with the provisions of this
Indenture;
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general
equity principles; and
(d) that all laws and requirements in respect of the execution
and delivery by the Company of the Securities have been complied
with and that authentication and delivery of the Securities by the
Trustee will not violate the terms of the Indenture.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith shall determine that such action would expose the Trustee to personal
liability to existing Holders.
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Each Security shall be dated the date of its authentication.
Reference is made to Section 15.15 concerning execution and delivery of
the Guarantees.
SECTION 3.04. Execution of Securities. The Securities shall be signed in
the name and on behalf of the Company by the manual or facsimile signatures of
two Officers of the Company (which may be printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise). Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Security executed by the Company shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
In case any Officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Securities nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Securities had not ceased to be
such officer of the Company; and any Security may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such an officer.
Reference is made to Section 15.15 concerning execution and delivery of
the Guarantees.
SECTION 3.05. Exchange and Registration of Transfer of Securities.
Securities of any series may be exchanged for a like aggregate principal amount
of Securities of the same series of other authorized denominations. Securities
to be exchanged shall be surrendered at the office or agency to be maintained by
the Company, as provided in Section 10.02. The Trustee is hereby appointed
"Security Registrar" for the purpose of the registration of Securities and of
transfer of Securities in the Security Register as herein provided. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee a register
for each series of Securities issued hereunder (hereinafter collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations at it may prescribe, the Company shall provide for the registration
of Securities and the transfer of Securities as in this Article Three provided.
The Security Register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. Upon due presentment
for registration of transfer of any Security of any series at such office or
agency, the Company shall execute and the Trustee shall register, authenticate
and deliver in the name of the transferee or transferees a new Security or
Securities of the same series for an equal aggregate principal amount.
All Securities presented for registration of transfer or for exchange,
redemption or payment shall (if so required by the Company or the Security
Registrar) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the registered Holder or his attorney duly
authorized in writing.
13
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Company shall not be required to exchange or register the transfer of
(a) any Securities of any series for a period of 15 days preceding the first
mailing or publication of notice of redemption of Securities of such series to
be redeemed, or (b) any Securities selected, called or being called for
redemption except, in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed.
SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities. In case any
temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Company in the case of a mutilated Security shall, and in the case
of a lost, stolen or destroyed Security may in its discretion, execute, and upon
its request the Trustee shall authenticate and deliver, a new Security of the
same series bearing a number, letter or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen, or if any such Security shall have matured or shall be about to
mature, instead of issuing a substituted Security, the Company may pay or
authorize the payment of the same without surrender thereof (except in the case
of a mutilated Security). In every case the applicant for a substituted Security
shall furnish to the Company and to the Trustee such security or indemnity as
may be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
to the Trustee evidence to their satisfaction of the destruction, loss or theft
of such Security and of the ownership thereof.
The Trustee may authenticate any such substituted Security and deliver the
same upon the written request or authorization of any Officer of the Company.
Upon the issuance of any substituted Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith
and in addition a further sum not exceeding two dollars for each Security so
issued in substitution.
Every substituted Security issued pursuant to the provisions of this
Section 3.06 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and shall preclude
(to the extent lawful) any and all other rights or remedies with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 3.07. Temporary Securities. Pending the preparation of definitive
Securities of any series the Company may execute and the Trustee shall
authenticate and deliver temporary Securities (printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination and
substantially in the form of the definitive Securities but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every such temporary Security shall be
executed by the Company
14
and shall be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Securities. Without unreasonable delay the Company will execute and deliver to
the Trustee definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange therefore, at
the Corporate Trust Office of the Trustee, and the Trustee shall authenticate
and deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities. Such exchange shall be made by the
Company at its own expense and without any charge therefor except that in case
of any such exchange involving any registration of transfer the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities authenticated and delivered
hereunder.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 3.03 and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the U.S. Depositary for such Global Security or
Securities or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "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, unless and until this Security is exchanged in
whole or in part for Securities in definitive form" and such other legend as may
be required by the U.S. Depositary.
Notwithstanding any other provision of this Section or Section 3.05,
unless and until it is exchanged in whole or in part for Securities in
definitive form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the U.S.
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 U.S. Depositary for such
series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as U.S. Depositary for
the Securities of such series or if at any time the U.S. Depositary for
Securities of a series shall no longer be a clearing agency registered and in
good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary with respect to the Securities of such series. If a successor U.S.
Depositary for the Securities of such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such series in exchange for such
Global Security or Securities.
15
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive
form and in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such series in exchange for such
Global Security or Securities.
If the Securities of any series shall have been issued in the form of one
or more Global Securities and if an Event of Default with respect to the
Securities of such series shall have occurred and be continuing, the Company
will promptly execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
If specified by the Company pursuant to Section 3.01 with respect to
Securities of a series, the U.S. Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series in definitive form on such terms as are
acceptable to the Company and such depositary. Thereupon, the Company shall
execute and the Trustee shall authenticate and deliver, without charge:
(1) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series, of any authorized denomination
as requested by such Person in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global Security;
and
(2) to the U.S. Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
Upon the exchange of a Global Security in whole for Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Securities so issued in exchange for a Global Security shall be registered in
such names and in such authorized denominations as the U.S. Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are so registered.
SECTION 3.08. Payment of Interest; Interest Rights Preserved. Interest on
any Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date or within 30 days thereafter
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder; and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
16
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Security Register not less than 10 days prior
to such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in a newspaper, customarily published in the
English language on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, but such publication shall not
be a condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Securities are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.09. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee, the
Authenticating Agent and any agent of the Company or the Trustee may treat the
Person in whose name the Security is registered as the owner of such Security
for the purpose of receiving payment of principal of, and (subject to Section
3.08) interest on, such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the Trustee, the
Authenticating Agent nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
17
SECTION 3.10. Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Securities and Securities surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in its customary manner.
SECTION 3.11. Computation of Interest. Except as otherwise specified as
contemplated by Section 3.01 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 3.12. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when:
(1) either:
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 10.03) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation:
(i) have become due and payable, or
18
(ii) will become due and payable at their Stated
Maturities within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any)
and interest to the date of such deposit (in the case of Securities
that have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and the obligations
of the Trustee to any Authenticating Agent under Section 6.14 shall survive such
satisfaction and discharge.
SECTION 4.02. Application of Trust Money. All money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default.
"Events of Default", wherever used herein with respect to Securities of
any series, means any one of the following events and such other events as may
be established with respect to the Securities of that series as contemplated by
Section 3.01 hereof (whatever the reasons for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
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(a) default in the payment of any installment of interest upon any
Security of that series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(b) default in the payment of any of the principal of and premium,
if any, on any Security of that series as and when the same shall become
due and payable, either at Maturity, upon redemption, by declaration,
repayment or otherwise; or
(c) default in the payment or satisfaction of any sinking fund
installment as and when the same shall become due and payable by the terms
of a Security of that series; or
(d) failure on the part of the Company or a Guarantor duly to
observe or perform any other of the covenants or agreements on the part of
the Company or a Guarantor in this Indenture (other than those set forth
exclusively in the terms of any particular series of Securities
established as contemplated in this Indenture) continued for a period of
60 days after the date on which written notice of such failure, requiring
the Company or a Guarantor to remedy the same, shall have been given to
the Company or a Guarantor by the Trustee, or to the Company or a
Guarantor and the Trustee by the Holders of at least 25 percent in
aggregate principal amount of the Securities of such series at the time
Outstanding, and stating that such notice is a "Notice of Default"
hereunder; or
(e) the commencement by the Company or any Significant Subsidiary of
the Company or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary of a voluntary case or proceeding
under any applicable U.S. federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by the Company or
any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary to the
entry of a decree or order for relief in respect of the Company or any
Significant Subsidiary of the Company or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary in an
involuntary case or proceeding under any applicable U.S. federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
the Company or any Significant Subsidiary of the Company or any group of
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary, or the filing by the Company or any Significant Subsidiary of
the Company or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable U.S. federal or
state law, or the consent by the Company or any Significant Subsidiary of
the Company or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary to the filing of such petition or to
the appointment of or the taking possession by a custodian of the Company
or any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary or of
any substantial part of their properties, or the making by the Company or
any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary of an
assignment for the benefit of creditors, or the admission by
20
the Company or any Significant Subsidiary of the Company or any group of
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary in writing of their inability to pay its debts generally as
they become due, or the taking of corporate action by the Company or any
Significant Subsidiary of the Company or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary expressly in
furtherance of any such action; or
(f) a Guarantee of a Security of that series (other than in
accordance with the terms of the Guarantee) shall be held in any judicial
proceeding to be unenforceable or invalid.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in Section 5.01 (other than in clause (e)
with respect to the Company) or established pursuant to Section 3.01 with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then and in each and every such case, unless the principal of all
the Securities of such series shall have already become due and payable, either
the Trustee or the Holders of not less than 25 percent in aggregate principal
amount of the Securities of such series then Outstanding hereunder, by notice in
writing to the Company (and to the Trustee if given by Holders), may declare the
principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the Securities of such series plus accrued and
unpaid interest to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities of such series contained to the contrary
notwithstanding. If an Event of Default described in clause (e) in respect of
the Company occurs and is continuing, then and in each and every such case,
unless the principal of all the Securities shall have already become due and
payable, the principal amount of all the Securities of each series then
Outstanding hereunder (or, if any Securities are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms thereof) plus any accrued and unpaid interest shall become immediately due
and payable. The foregoing provisions are, however, subject to the condition
that if, at any time after the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amounts as may be specified in the terms of that series) of the Securities of
any series (or of all the Securities, as the case may be) shall have been
declared or become 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 shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of such series (or of all the Securities, as the case may be) and the principal
of and premium, if any, on any and all Securities of such series (or of all the
Securities, as the case may be) that shall have become due otherwise than by
acceleration (with interest on overdue installments of interest, to the extent
that payment of such interest is enforceable under applicable law, and on such
principal and premium, if any, at the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) borne by the Securities of such
series (or at the rates of interest or Yields to Maturity of all the Securities,
as the case may be), to the date of such payment or deposit) and the reasonable
expenses of the Trustee, and any and all defaults under this Indenture, other
than the nonpayment of principal of or premium, if any, or accrued interest on
Securities of such series (or of all the Securities, as the case may be) which
shall have become due by acceleration, shall have been cured or waived pursuant
to Section 5.08,
21
then and in every such case the Holders of a majority in aggregate principal
amount of the Securities of such series (or of all the Securities, as the case
may be) then Outstanding, by written notice to the Company and to the Trustee,
may waive all defaults with respect to that series (or with respect to all
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.
In case the Trustee or any Holder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or to such Holder, then and
in every such case the Company and the Trustee and the Holders shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee and the Holders shall
continue as though no such proceeding had been taken.
SECTION 5.03. Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any of the Securities of any series
as and when the same shall become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of the principal of and premium, if any, on any of the Securities of any
series as and when the same shall become due and payable, whether at maturity of
the Securities of that series or upon redemption or by declaration, repayment or
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the Holders of the Securities of that series, the
whole amount that then shall have become due and payable on all such Securities
of that series for principal and premium, if any, or interest, or both, as the
case may be, with interest upon the overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case of
Original Issue Discount Securities) borne by the Securities of that series; and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to the
Trustee, its agents, attorneys and counsel, and any expenses or liabilities
incurred by the Trustee hereunder other than through its negligence or bad
faith.
In case the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor upon such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Securities of any
series under any applicable bankruptcy, insolvency or similar law, or in case a
receiver or trustee shall have been appointed for the property of the Company or
such other obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor upon the Securities of any series, or
to the
22
creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Securities of any series shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.03 shall be entitled and empowered, by intervention
in such proceedings or otherwise, to file and prove a claim or claims for the
whole amount of principal (and premium, if any) and interest (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) owing
and unpaid in respect of the Securities of any series and, in case of any
judicial proceedings, to 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 and
of the Holders allowed in such judicial proceedings relative to the Company or
any other obligor on the Securities of any series, its or their creditors, or
its or their property, and to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the Holders to make
such payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for compensation and expenses, including counsel fees and
expenses incurred by it up to the date of such distribution. To the extent that
such payment of reasonable compensation, expenses and counsel fees and expenses
out of the estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any
and all distributions, dividends, moneys, securities and other property which
the Holders of the Securities of any series may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the Holders of all
the Securities in respect of which such action was taken.
SECTION 5.04. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee under this Article Five shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith;
SECOND: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall not have become due
and be unpaid, to the payment of interest on the Securities of that
series, 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 rate or Yield to
23
Maturity (in the case of Original Issue Discount Securities) borne by the
Securities of that series, such payments to be made ratably to the persons
entitled thereto;
THIRD: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing
and unpaid upon the Securities of that series for principal and premium,
if any, and interest, with interest on the overdue principal and premium,
if any, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Securities) borne by the
Securities of that series; and in case such moneys shall be insufficient
to pay in full the whole amounts so due and unpaid upon the Securities of
that series, then to the payment of such principal and premium, if any,
and interest without preference or priority of principal and premium, if
any, over interest, or of interest over principal and premium, if any, or
of any installment of interest over any other installment of interest, or
of any Security of that series over any other Security of that series,
ratably to the aggregate of such principal and premium, if any, and
accrued and unpaid interest; and
FOURTH: Any surplus then remaining shall be paid to the Company, its
successors or assigns, or to whomsoever may be entitled to receive the
same.
SECTION 5.05. Proceedings by Holders. No Holder of any Security of any
series shall have any right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than
25 percent in aggregate principal amount of the Securities of that series then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such indemnity reasonably satisfactory to the Trustee as
it may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and during such 60-day period, no
direction inconsistent with such written request has been given to the Trustee
by the Holders of a majority in aggregate principal amount of the Securities of
that series then Outstanding (or such amount as shall have acted at a meeting
pursuant to the provisions of this Indenture), it being understood and intended,
and being expressly covenanted by the taker and Holder of every Security with
every other taker and Holder and the Trustee, that no one or more Holders shall
have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all such
Holders.
Notwithstanding any other provisions in this Indenture, but subject to
Article Fourteen, the right of any Holder of any Security to receive payment of
the principal of and premium, if any, and interest on such Security, on or after
the respective due dates expressed in such Security, or
24
to institute suit for the enforcement of any such payment on or after such
respective dates shall not be impaired or affected without the written consent
of such Holder.
SECTION 5.06. Proceedings by Trustee. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem necessary to protect and enforce any of such rights,
either by suit in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in
this Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 5.07. Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Holders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Holders, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any Holder to exercise any right or power accruing
upon any default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 5.05, every
power and remedy given by this Article Five or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.
SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority
of Holders. The Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series; provided, however, that
(subject to the provisions of Section 6.01) the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
determines that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith shall determine that the action or proceedings
so directed would involve the Trustee in personal liability. Subject to Section
5.02, the Holders of a majority in aggregate principal amount of the Securities
of that series at the time Outstanding may on behalf of the Holders of all of
the Securities of that series waive any past default or Event of Default
described in Section 5.01, or any other Event of Default for such series
specified in the terms thereof as contemplated by Section 3.01, and its
consequences except a default in the payment of interest, or premium, if any,
on, or the principal of any of the Securities or a default which, under Section
9.02, cannot be modified or amended without the consent of each Holder of each
Security affected by such waiver. Upon any such waiver the Company, the Trustee
and the Holders of the Securities of that series shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 5.08, said default or Event
of Default shall for all purposes of the Securities of that series and this
Indenture be deemed to have been cured and to be not continuing.
SECTION 5.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court
25
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.09 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder of the Securities of any
series or group of such Holders, holding in the aggregate more than ten percent
in principal amount of the Outstanding Securities of that series or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
or premium, if any, or interest on any Security against the Company on or after
the due date expressed in such Security.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Indenture or the Trust
Indenture Act, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they substantially conform to the requirements of this Indenture (but
needs not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).
(b) In case an Event of Default actually known to a Responsible Officer of
the Trustee with respect to the Securities of a series has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture with respect to such series, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
26
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.08 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; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers.
(d) The Trustee shall not be obligated to pay interest on any money or
other assets received by it unless otherwise agreed with the Company. Assets
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults.
Within 90 days after the occurrence of any default with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of that Series, as their names and addresses appear in the Security
Register, notice of all defaults with respect to that Series actually known to a
Responsible Officer of the Trustee, unless such defaults shall have been cured
or waived before the giving of such notice; provided, however, that, except in
the case of a default in the payment of the principal of or premium, if any, or
interest on any of the Securities of such series or in the making of any sinking
fund payment with respect to such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default.
SECTION 6.03. Certain Rights of Trustee.
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
27
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with the counsel of its own 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
by it hereunder in good faith and in reliance thereon;
(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 or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in complying with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the expense of the Company
and shall incur no liability of any kind by reason of such inquiry or
investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee pursuant to Section 16.02, and such notice references
the Securities and this Indenture; and
(i) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder.
(j) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be
28
signed by any person authorized to sign an Officers' Certificate, including any
person specified as so authorized in any such certificate previously delivered
and not superseded.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the statements of the Company,
and the Trustee and any Authenticating Agent assume no responsibility for their
correctness. The Trustee and any Authenticating Agent make no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the Company of
the Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent or
any other agent of the Company or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.08 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar, Authenticating
Agent or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as shall be determined by a court of competent
jurisdiction to have been caused by its own negligence or willful
misconduct; and
(3) to fully indemnify the Trustee, any predecessor Trustee and
their agents for, and to hold them harmless against, any and all loss,
liability, claim, damage, taxes (other than taxes based upon the income of
the Trustee) or expense (including legal fees and expenses) incurred
without negligence or willful misconduct on their part, arising out of or
in connection with the acceptance or administration of this trust,
including the costs and expenses of defending themselves against any claim
(whether asserted by the
29
Company, or any Holder or any other Person) or liability in connection
with the exercise or performance of any of their powers or duties
hereunder and shall not be subordinate to the payment of Senior
Indebtedness pursuant to Article Fourteen.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on
Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(e), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
SECTION 6.08. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time required
thereby. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded Securities
of any particular series of Securities other than that series.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(1) a corporation organized and doing business under the laws of the
United States of America, any state thereof, or the District of Columbia,
authorized under such laws to exercise corporate trust powers, and subject
to supervision or examination by Federal or State authority, or
(2) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as a Trustee
pursuant to a rule, regulation, or other order of the Commission,
authorized under such laws to exercise corporate trust powers, and subject
to supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustee,
having a combined capital and surplus of at least $50,000,000 and having its
Corporate Trust Office in the Borough of Manhattan, the City of New York, or
such other city as contemplated by Section 3.01 with respect to any series of
Securities. If such corporation publishes reports of condition at least
annually, pursuant to law or to requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of
30
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. Neither the Company
nor any Person directly or indirectly controlling, controlled by, or under the
common control with the Company shall serve as Trustee for the Securities. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereunder specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to one or more or all
series of Securities by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of one or more series (each series voting as a class) or all series
at the time Outstanding may at any time remove the Trustee with respect to the
applicable series or all series, as the case may be, and by written notice of
such action to the Company, the Trustee and the successor Trustee, nominate with
respect to the applicable series or all series, as the case may be, a successor
Trustee, which shall be deemed appointed as successor Trustee with respect to
the applicable series unless within ten days after such nomination the Company
objects thereto, in which case the Trustee so removed or any Holder of
Securities of the applicable series who has been a bona fide holder of a
Security or the applicable series for at least six months may, subject to the
provisions of Section 5.09 on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 6.08 hereof after written request
therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, unless the Trustee's duty to resign
is stayed in accordance with the provisions of Section 310(b) of the Trust
Indenture Act, or
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting, or a decree or
order for relief by a court having jurisdiction in the premises shall have
been entered in respect of the Trustee in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State, bankruptcy, insolvency or similar law; or a
decree or order by a court having jurisdiction in the premises for the
appointment of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy
31
or insolvency of the Trustee or of its property, or for the winding up of
its affairs shall have been entered, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, or shall consent
to the appointment of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its property, or shall
make an assignment for the benefit of creditors, or shall fail generally
to pay its debts as they become due, or corporate action shall be taken by
the Trustee in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.09, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee to the vacated office. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and supersede the successor Trustee appointed by the Company. If
no successor Trustee shall have been so appointed by the Company or the Holders
and accepted appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property
32
and money held by such retiring Trustee hereunder, subject nevertheless to its
lien, if any, provided for in Section 6.07. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
predecessor Trustee and each successor Trustee with respect to the Securities of
any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such trustees, co-trustees of
the same trust and that each trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such trustee.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Security shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right
33
of set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third Person, and (iii) distributions
made in cash, securities or other property in respect of claims
filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal bankruptcy
laws, as now or hereafter constituted, or any other Federal or State
bankruptcy, insolvency or similar law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held
prior to the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter or mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received
as security therefor simultaneously with the creation thereof, and
if the Trustee shall sustain the burden of proving that at the time
such property was so received the Trustee had no reasonable cause to
believe that a default as defined in Subsection (c) of this Section
would occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in paragraph (B) or (C), as the case may be,
to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to set aside and hold such a special
account, the funds and property held in such special account and the proceeds
thereof shall be apportioned between the Trustee, the Holders and the holders of
other indenture securities in such manner that the Trustee, the Holders and the
holders of other indenture securities realize, as a result of payments
34
from such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or similar law, the
same percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the Company
of the funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, but after crediting
thereon receipts on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from funds and
property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
similar law, whether such distribution is made in cash, securities, or other
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion between the Trustee and the Holders and the
holders of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee and the Holders and the holders
of other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provision of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
three-month period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such
three-months period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from:
35
(1) the ownership or acquisition of securities issued under any
indenture, or any securities or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving any property that shall at any time be subject to the lien of
this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the time and in
the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the Company
or an obligor under the Securities; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations that fall within the
classification of self-liquidating paper as defined in Subsection (c) of
this Section.
(c) For the purpose of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due
and payable.
(2) The term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account.
(3) The term "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.
(4) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company 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
36
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 arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the Securities.
SECTION 6.14. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee may
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon exchange, transfer
or partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a bank or trust company or corporation organized and doing business and
in good standing under the laws of the United States of America, or of any
State, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $1,500,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
case at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail notice of such
appointment to all Holders, as their names and addresses appear on the Security
Register. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating
37
Agent herein. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities shall
have endorsed thereon, in addition to the Trustee's Certificate, an alternate
Trustee's Certificate in the following form:
This is one of the Securities described in the within-mentioned Indenture.
US Bank National Association,
as Trustee
By________________________________
Authenticating Agent
By________________________________
Authorized Signatory
Dated:____________________________
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually (and not more than 15 days after each Regular
Record Date of each series of Securities having such a Regular Record
Date), a list, in such form as the Trustee may reasonable require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished,
excluding from any such list names and addresses received by the Trustee in the
capacity of Security Registrar if the Trustee is then acting in such capacity.
38
SECTION 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in the capacity of Security
Registrar if the Trustee is then acting in such capacity. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a
new list so furnished.
(b) If three or more Holders (hereinafter referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the receipt of
such application, at its election, either:
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
7.02(a), and as to the approximate cost of mailing to such Holders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 7.02(a), a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in
39
accordance with Section 7.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.02(b).
SECTION 7.03. Reports by Trustee.
(a) Within 60 days after __________ of each year commencing with the year
20__, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report dated as of __________
with respect to any of the following events which may have occurred within the
prior 12 months (but if no such event has occurred within such period no report
need be transmitted):
(1) any change to its eligibility under Section 6.09 and its
qualifications under Section 6.08;
(2) the creation of any material change to a relationship specified
in Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture
Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state the circumstances surrounding the making thereof) made
by the Trustee (as such) that remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount of the
Outstanding Securities on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2), (3),
(4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder that it has not previously reported and that in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 6.02.
(b) The Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
execution of this
40
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee, and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Outstanding Securities at such time, such
report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which the
Securities are listed and also with the Commission. The Company will notify the
Trustee when the Securities are listed on any securities exchange.
SECTION 7.04. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company files
them with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; provided, however, that the Company shall not be
required to deliver to the Trustee any materials for which the Company has
sought and obtained confidential treatment from the Commission; or, if the
Company is not required to file information, documents or reports pursuant
to either of said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a National Securities Exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Registrar, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
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,
41
including the Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
SECTION 8.01. Consolidations and Mergers of Company and Conveyances
Permitted Subject to Certain Conditions.
The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in the event that the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and, if the entity
surviving such transaction or transferee entity is not the Company, then
such surviving or transferee entity shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all the
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) at the time of consummation of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 8.02. Rights and Duties of Successor Corporation.
Upon any consolidation or merger by the Company with or into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety to any Person, in accordance with
Section 8.01, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease to another
42
Person, the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
SECTION 8.03. Officers' Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Section 6.01, shall be provided
with an Officers' Certificate and an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale or conveyance, and any such
assumption, complies with the provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Holders. The
Company, when authorized by a Board Resolution, Guarantors, if any, when
authorized by a Board Resolution, Guarantors, if any, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
hereunder and the Securities or the Guarantees, if any; or
(b) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities any property or assets which the Company
may desire; or
(c) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of all or any
series of Securities (and if such covenants are to be for the benefit of
less than all series of Securities stating that such covenants are
expressly being included solely for the benefit of such series) as the
Board of Directors of the Company and the Trustee shall consider to
43
be for the protection of the Holders of such Securities, and to make the
occurrence, or the occurrence and continuance, of a default in any of such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default; or
(d) to provide for the issuance under this Indenture of Securities
in coupon form (including Securities registrable as to principal only) and
to provide for exchangeability of such Securities with the Securities
issued hereunder in fully registered form and to make all appropriate
changes for such purpose; or
(e) to establish the form or terms of Securities or the Guarantees,
if any, of any series as permitted by Sections 2.01 and 3.01; or
(f) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture that may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture that shall not adversely
affect the interests of any Holder in any material respect; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant
to the requirements of Section 6.11; or
(h) to surrender any right or power herein conferred upon the
Company;
(i) to comply with the requirements of the Commission in order to
maintain the qualification of this Indenture under the Trust Indenture
Act; or
(j) to add or modify any other provisions with respect to matters or
questions arising under this Indenture which the Company and the Trustee
may deem necessary or desirable; provided, however, that such action
pursuant to this clause (j) does not, in the good faith opinion of the
Board of Directors of the Company (as evidenced by a Board Resolution) and
the Trustee, adversely affect the interests of any Holder of Securities in
any material respect; or
(k) to modify the covenants or Events of Default solely in respect
of, or add new covenants or Events of Default that apply solely to,
Securities not Outstanding on the date of such supplemental indenture; or
(l) to provide for Guarantees of the Securities of any series and/or
to specify the ranking of the obligations of each Guarantor under its
respective Guarantee.
44
The Trustee is hereby authorized to join with the Company and the
Guarantors, if any, in the execution of any such supplemental indenture, to make
any further appropriate agreements and stipulations which may be therein
contained and to accept the conveyance, transfer, assignment, mortgage or pledge
of any property thereunder, but the Trustee shall not be obligated to, but may
in its discretion, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed by the Company, the Guarantors, if any, and the Trustee
without the consent of the Holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With the
consent (evidenced as provided in Section 1.02) of the Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of each
series affected by such supplemental indenture (each series voting separately as
a class), the Company, when authorized by a Board Resolution, the Guarantors, if
any, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series; provided,
however, that no such supplemental indenture shall (i) change the Stated
Maturity of any Security, or reduce the rate or change the time of payment of
interest thereon, or reduce the principal amount thereof or any premium thereon,
or make the principal thereof or interest or premium thereon payable in any coin
or currency other than that provided in the Securities 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 5.02 or
the amount thereof provable in bankruptcy pursuant to Section 5.03 or impair the
right to institute suit for enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or adversely affect the right of repayment, if any, at the
option of the Holder without the consent of the Holder of each Security so
affected, (ii) reduce the aforesaid percentage of Securities, the Holders of
which are required to consent to any such supplemental indenture, or the Holders
of which are required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, (iii) modify the obligation of the Company to maintain an
office or agency pursuant to Section 10.02, (iv) release any Guarantor from its
obligations under its Guarantee (other than in accordance with the terms
thereof) without the consent of the Holder of each Security so affected, or (v)
modify any of the provisions of this Indenture relating to the subordination of
the Securities in a manner adverse to the Holders. A supplemental indenture
which changes or eliminates any covenant or other provision of this Indenture
which has expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence
45
of the consent of Holders as aforesaid, the Trustee shall join with the Company
and the Guarantors, if any, in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Nine shall comply with the Trust Indenture Act of 1939, as then in
effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Nine, this Indenture shall be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company, and the Holders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 9.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Nine may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Section 6.01, shall be provided
with an Officers' Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant hereto complies with the
requirements of this Article Nine.
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal and Interest.
The Company will duly and punctually pay or cause to be paid the principal
of, premium, if any, and interest, if any, on the Securities in accordance with
the terms of the Securities and this Indenture.
46
SECTION 10.02. Maintenance of Office or Agency.
The Company shall maintain an office or agency where Securities may be
presented or surrendered for payment and an office or agency where Securities
may be surrendered for transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The Corporate Trust Office of the Trustee shall be such office of the Company,
and the Trustee shall be the agent of the Company for all of the foregoing
purposes, unless the Company shall designate and maintain some other office or
agency for such purposes and give the Trustee written notice of the location
thereof. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency, the Corporate Trust
Office of the Trustee shall be conclusively deemed to be the agency of the
Company for all such purposes.
SECTION 10.03. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of or premium, if any, or interest on,
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or premium, if
any, or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents it will, prior
to 10:00 am on each due date of the principal of or interest on, any Securities,
deposit with a Paying Agent a sum sufficient to pay the principal or premium, if
any, or interest, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal or premium, if any, or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of or
premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal or premium, if any, or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent,
47
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal or premium, if any or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 10.04. Payment of Taxes and Other Claims.
The Company will, and will cause any Significant Subsidiary to, promptly
pay and discharge or cause to be paid and discharged all material taxes,
assessments and governmental charges or levies lawfully imposed upon it or upon
its income or profits or upon any of its property, real or personal, or upon any
part thereof, as well as all material claims for labor, materials and supplies
which, if unpaid, might by law become a lien or charge upon its property;
provided, however, that neither the Company nor any Significant Subsidiary shall
be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge, levy, or claim if the amount, applicability or validity
thereof shall currently be contested in good faith by appropriate proceedings
and if the Company or such Significant Subsidiary, as the case may be, shall
have set aside on its books reserves deemed by it adequate with respect thereto.
SECTION 10.05. Maintenance of Properties.
The Company will maintain and keep its properties and every part thereof
in such repair, working order and condition, and make or cause to be made all
such needful and proper repairs, renewals and replacements thereto, as in the
judgment of the Company are necessary in the interests of the Company; provided,
however, that nothing contained in this Section shall prevent the Company from
selling, abandoning or otherwise disposing of any of its properties or
discontinuing a part of its business from time to time if, in the judgment of
the Company, such sale, abandonment, disposition or discontinuance is advisable
and does not materially adversely affect the interests or business of the
Company.
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SECTION 10.06. Statement as to Default.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company (which as of the date hereof is December 31), an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company, they would normally have
knowledge of any failure by the Company to comply with all conditions, or any
Default by the Company with respect to any covenants, under this Indenture, and
further stating whether or not they have knowledge of any such failure or
Default and, if so, specifying each such failure or Default and the nature
thereof. In the event an Officer of the Company comes to have actual knowledge
of a Default, regardless of the date, the Company shall deliver an Officers'
Certificate to the Trustee specifying such Default and the nature and status
thereof.
SECTION 10.07. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company determines that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 10.08. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 10.04, 10.05 and 10.07 or any
covenant added for the benefit of any series of Securities as contemplated by
Section 3.01, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Securities of such series at the
time Outstanding shall, by Act of such Holders, waive such compliance in such
instance, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
SECTION 10.09. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) 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 and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
SECTION 10.10. Reports.
(a) The Company shall deliver to the Trustee within 15 days after it files
them with the Commission copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act; provided, however, the Company shall not be required
49
to deliver to the Trustee any materials for which the Company has sought and
received confidential treatment by the Commission. The Company also shall comply
with the other provisions of Section 314(a) of the Trust Indenture Act.
(b) 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 Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on Officers' Certificates).
(c) If at any time the Company is not subject to Section 13 or 15(d) of
the Exchange Act, upon the request of a Holder of a Security, the Company will
promptly furnish or cause to be furnished to such Holder or to a prospective
purchaser of such Security designated by such Holder, as the case may be, the
information, if any, required to be delivered by it pursuant to Rule 144A(d)(4)
under the Securities Act of 1933, as amended, to permit compliance with Rule
144A in connection with the resale of such Security.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
SECTION 11.02. Notice of Redemption; Selection of Securities. In case the
Company shall desire to exercise the right to redeem all, or, as the case may
be, any part of the Securities of any series in accordance with their terms, it
shall fix a date for redemption and shall mail or cause to be mailed a notice of
such redemption at least 30 and not more than 60 days prior to the date fixed
for redemption to the Holders of Securities of such series so to be redeemed as
a whole or in part at their last addresses as the same appear on the Security
Register. Such mailing shall be by first class mail. The notice if mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, failure to give
such 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.
Each such notice of redemption shall include CUSIP numbers and specify the
date fixed for redemption, the redemption price at which Securities of such
series are to be redeemed, the place or places of payment, that payment will be
made upon presentation and surrender of such Securities, that any interest
accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date any interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the Securities of
a series are to be redeemed the notice of redemption shall specify the numbers
of the Securities of that series to be redeemed. 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 that series in principal amount equal to the
unredeemed portion thereof will be issued.
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Prior to 10:00 am on the redemption date specified in the notice of
redemption given as provided in this Section 11.02, the Company will deposit
with the Trustee or with one or more paying agents an amount of money sufficient
to redeem on the redemption date all the Securities or portions thereof so
called for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption.
If all or less than all the Securities of a series are to be redeemed, the
Company will give the Trustee notice not less than 60 days prior to the
redemption date as to the aggregate principal amount of Securities to be
redeemed and the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate, the Securities of that series or portions thereof (in
multiples of $1,000, except as otherwise set forth in the applicable form of
Security) to be redeemed.
SECTION 11.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as provided in Section 11.02 or Section 12.03, the
Securities or portions of Securities of the series with respect to which such
notice has been given shall become due and payable on the date and at the place
or places stated in such notice at the applicable redemption price, together
with any interest accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Securities at
the applicable redemption price, together with any interest accrued to said
date) any interest on the Securities or portions of Securities of any series so
called for redemption shall cease to accrue. On presentation and surrender of
such Securities at a place of payment in said notice specified, the said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with any interest accrued
thereon to the date fixed for redemption.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities of such series, of
authorized denominations, in principal amount equal to the unredeemed portion of
the Security so presented.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of 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 Securities of any series is herein referred to as an "optional sinking
fund payment".
SECTION 12.02. Satisfaction of Mandatory Sinking Fund Payments with
Securities. In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series theretofore
purchased or otherwise acquired by the Company, or (b) receive credit for the
principal amount of Securities of that series which have been previously
delivered by the
51
Trustee to the Company which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee a certificate signed by the Treasurer or any
Assistant Treasurer of the Company specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering or crediting
Securities of that series pursuant to Section 12.02 (which Securities will, if
not previously delivered, accompany such certificate) and whether the Company
intends to exercise its right to make a permitted optional sinking fund payment
with respect to such series. Such certificate shall also state that no Event of
Default has occurred and is continuing with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate (or to deliver the Securities
specified in this paragraph), the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 12.02 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Securities at the Redemption Price specified in such Securities for
operation of the sinking fund together with accrued interest to the date fixed
for redemption. Any sinking fund moneys not so applied or allocated by the
Trustee to the redemption of Securities shall be added to the next cash sinking
fund payment received by the Trustee for such series and, together with such
payment, shall be applied in accordance with the provisions of this Section
12.03. Any and all sinking fund moneys with respect to the Securities of any
particular series held by the Trustee on the last sinking fund payment date with
respect to Securities of such series and not held for the payment or redemption
of particular Securities shall be applied by the Trustee, together with other
moneys, if necessary, to be deposited sufficient for the purpose, to the payment
of the principal of the Securities of that series at maturity.
The Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in the last paragraph of Section 11.02
and the Company shall cause notice of the redemption thereof to be given in the
manner provided in Section 11.02 except that the notice of redemption shall also
state that the Securities are being redeemed by operation of
52
the sinking fund. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section
11.03.
Prior to 10:00 am on each sinking fund payment date, the Company shall pay
to the Trustee in cash a sum equal to any interest accrued to the date fixed for
redemption of Securities or portions thereof to be redeemed on such sinking fund
payment date pursuant to this Section.
The Trustee shall not redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of such Securities by operation of the
sinking fund for such series during the continuance of a default in payment of
interest on such Securities or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to such
Securities, except that if the notice of redemption of any such Securities shall
theretofore have been mailed in accordance with the provisions hereof, the
Trustee shall redeem such Securities if cash sufficient for that purpose shall
be deposited with the Trustee for that purpose in accordance with the terms of
this Article. Except as aforesaid and subject to Article Fourteen, 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 such sinking fund shall,
during the continuance of such default or Event of Default, be held as security
for the payment of such Securities; provided, however, that in case such Event
of Default or default shall have cured or waived as provided herein, such moneys
shall thereafter be applied on the next sinking fund payment date for such
Securities on which such moneys may be applied pursuant to the provisions of
this Section.
55
ARTICLE THIRTEEN
DEFEASANCE
SECTION 13.01. Applicability of Article. The provisions of this Article
shall be applicable to Securities of a series except as otherwise specified
pursuant to Section 3.01 for Securities of such series.
SECTION 13.02. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations. At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its obligations with respect to
Securities of any series ("Legal Defeasance Option") or (b) the Company shall
cease to be under any obligation to comply with any term, provision or condition
set forth in Sections 8.01, 10.04 and 10.05 with respect to Securities of any
series (and, if so specified pursuant to Section 3.01, any other obligation of
the Company or restrictive covenant added for the benefit of such series
pursuant to Section 3.01) ("Covenant Defeasance Option") at any time after the
applicable conditions set forth below have been satisfied:
56
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
the Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below) which through the payment of
interest and principal in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient, in
the opinion (with respect to (i) and (ii)) of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of
principal (including any mandatory sinking fund payments) of and premium,
if any, and interest on, the Outstanding Securities of such series on the
dates such installments of interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 6.08 and for purposes of the Trust Indenture Act with respect to
the Securities of any series;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event (including such deposit) which,
with notice or lapse of time or both, would become an Event of Default
with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit and, with respect to the legal
defeasance option only, no Event of Default under Section 5.01(e) or event
which with the giving of notice or lapse of time, or both, would become an
Event of Default under Section 5.01(e) or Section 5.01(f) shall have
occurred and be continuing on the 91st day after such date; and
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel or a ruling 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 deposit,
defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant
defeasance option and an Event of Default under Section 5.01(e) or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under Section 5.01(e) shall have occurred and be continuing on the 91st
day after the date of such deposit, the obligations of the Company referred to
under the definition of covenant defeasance option with respect to such
Securities shall be reinstated. Money and securities held in trust pursuant to a
legal defeasance shall not be subject to Article Fourteen.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive,
from the trust fund described in clause (1) above, payment of the principal of
(and premium, if any) and interest on
57
such Securities when such payments are due, (B) the Company's obligations with
respect to the Securities of such series under Sections 3.05, 3.06, 3.07, 10.02
and 13.03 and to the Trustee under Section 6.07 and (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository 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 depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 13.03. Deposited Moneys and U.S. Government Obligations to Be Held
in Trust. All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 13.02 in respect of Securities of a series shall be held in
trust and applied by it, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon for principal (and premium, if any) and interest, if any, but such money
need not be segregated from other funds except to the extent required by law.
SECTION 13.04. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium or interest
on any Security and remaining unclaimed for two years after such principal and
premium, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in The
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
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ARTICLE FOURTEEN
SUBORDINATION
SECTION 14.01. Agreement to Subordinate. The Company, for itself, its
successors and assigns, covenants and agrees, and each Holder of Securities by
his acceptance thereof, likewise covenants and agrees, that the payment of the
principal of (and premium, if any) and interest on each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness. The Securities shall in all respects rank pari passu with
all other Subordinated Indebtedness of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities. Upon any distribution of assets of
the Company upon any dissolution, winding up, liquidation or reorganization of
the Company, whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or otherwise (subject
to the power of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the Securities and the
Holders thereof by a plan of reorganization under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be entitled to receive
payment in full of the principal thereof (and premium, if any) and interest due
thereon before the Holders of the Securities are entitled to receive any payment
upon the principal (and premium, if any) or interest on indebtedness evidenced
by the Securities; and
(b) any payment or distribution of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled except for the provisions of this Article
Fourteen shall be paid by the liquidating trustee or agent or other person
making such payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of (and premium, if any)
and interest on the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or the Holders of the
Securities before all Senior Indebtedness is paid in full, such payment or
distribution shall be paid over, upon written notice to the Trustee, to the
holder of such Senior Indebtedness or their representative or representatives or
to the trustee or trustees under any indenture under which instrument evidencing
any of such Senior Indebtedness may have been issued, ratably as aforesaid, for
application to payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness.
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Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Indebtedness until the principal
of (and premium, if any) and interest on the Securities shall be paid in full
and no such payments or distributions to the Holders of the Securities of cash,
property, or securities otherwise distributable to the holders of Senior
Indebtedness shall, as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Securities be deemed to be a
payment by the Company to or on account of the Securities. It is understood that
the provisions of this Article Fourteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on the
one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing
contained in this Article Fourteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or to affect the relative rights of the Holders
of the Securities and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or in the Securities prevent the Trustee
or the Holder of any Security from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Fourteen of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy. Upon any payment or distribution of assets of the
Company referred to in this Article Fourteen, the Trustee, subject to the
provisions of Sections 6.01 and 6.03, shall be entitled to rely upon a
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent to
this Article Fourteen.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. The Trustee shall not be liable to any such
holder if it shall pay or distribute to or on behalf of Holders of Securities or
the Company moneys or assets to which any holder of Senior Indebtedness shall be
entitled by virtue of this Article Fourteen.
If the Trustee or any Holder of Securities does not file a proper claim or
proof of debt in the form required in any proceeding referred to above prior to
30 days before the expiration of the time to file such claim in such proceeding,
then the holder of any Senior Indebtedness is hereby authorized, and has the
right, to file an appropriate claim or claims for or on behalf of such Holder of
Securities.
SECTION 14.03. No Payment on Securities in Event of Default on Senior
Indebtedness. No payment by the Company on account of principal (or premium, if
any), sinking funds or interest on the Securities shall be made unless full
payment of amounts then due for principal, premium, if any, sinking funds, and
interest on Senior Indebtedness has been made or duly provided for.
SECTION 14.04. Payments on Securities Permitted. Nothing contained in this
Indenture or in any of the Securities shall (a) affect the obligation of the
Company to make, or prevent the
60
Company from making, at any time except as provided in Sections 14.02 and 14.03,
payments of principal (and premium, if any) or interest of the Securities or (b)
prevent the application by the Trustee of any moneys deposited with it hereunder
to the payment of or on account of the principal of (and premium, if any) or
interest on the Securities, unless the Trustee shall have received at its
Corporate Trust Office written notice of any event prohibiting the making of
such payment more than two Business Days prior to the date fixed for such
payment.
SECTION 14.05. Trustee to Effectuate Subordination. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article Fourteen and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 14.06. Notices to Trustee. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities. Failure
to give such notice shall not affect the subordination of the Securities to
Senior Indebtedness. Notwithstanding the provisions of this Article or any other
provisions of this Indenture, neither the Trustee nor any Paying Agent (other
than the Company) shall be charged with knowledge of the existence of any Senior
Indebtedness or of any event which would prohibit the making of any payment of
moneys to or by the Trustee or such Paying Agent, unless and until the Trustee
or such Paying Agent shall have received (in the case of the Trustee, at its
Corporate Trust Office) written notice thereof from the Company or from the
holder of any Senior Indebtedness or from the trustee for any such holder,
together with proof satisfactory to the Trustee of such holding of Senior
Indebtedness or of the authority of such trustee; provided, however, that if at
least two Business Days prior to the date upon which by the terms hereof any
such moneys may become payable for any purpose (including, without limitation,
the payment of either the principal (and premium, if any) or interest on any
Security) the Trustee shall not have received with respect to such moneys the
notice provided for in this Section 14.06, then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys 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 within two Business Days prior to such date. 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 trustee on
behalf of such holder) to establish that such a notice has been given by a
holder of Senior Indebtedness or a trustee on behalf of any 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 Fourteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Fourteen and, if such evidence is not furnished,
the Trustee may defer any payment to such person pending judicial determination
as to the right of such person to receive such payment.
SECTION 14.07. Trustee as Holder of Senior Indebtedness. The Trustee in
its individual capacity shall be entitled to all the rights set forth in this
Article Fourteen 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.
61
Nothing in this Article shall apply to claims, of, or payments to, the
Trustee under or pursuant to Section 6.07.
SECTION 14.08. Modification of Terms of Senior Indebtedness. Any renewal
or extension of the time of payment of any Senior Indebtedness or the exercise
by the holders of Senior Indebtedness of any of their rights under any
instrument creating or evidencing Senior Indebtedness, including, without
limitation, the waiver of default thereunder, may be made or done all without
notice to or assent from the Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal or
other change of, or waiver, consent or other action in respect of, any liability
or obligation under or in respect of, or of any of the terms, covenants or
conditions of any indenture or other instrument under which any Senior
Indebtedness is outstanding or of such Senior Indebtedness, whether or not such
release is in accordance with the provisions of any applicable document, shall
in any way alter or affect any of the provisions of this Article Fourteen or of
the Securities relating to the subordination thereof.
SECTION 14.09. Reliance on Judicial Order or Certificate of Liquidation
Agent. Upon any payment or distribution of assets of the Company referred to in
this Article Fourteen, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which each insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable therein,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Fourteen.
The Company, for itself, its successors and assigns, covenants and agrees,
and each Holder of Securities by his acceptance thereof, likewise covenants and
agrees, that the payment of the principal of (and premium, if any) and interest
on each and all of the Securities is hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Indebtedness.
ARTICLE FIFTEEN
SUBORDINATED GUARANTEES
SECTION 15.01. Applicability of Article. The provisions of this Article
shall be applicable to each of the Guarantors for the Guarantee of Securities of
a series.
SECTION 15.02. Guarantee. Each Guarantor of a particular series of
Securities hereby unconditionally guarantees (each such guarantee to be referred
to herein as a "Guarantee"), jointly and severally with each other Guarantor of
the Securities of that series, if any, to each Holder of such Securities
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
such Securities or the obligations of the Company hereunder or thereunder, (i)
the due and punctual payment of the principal of and any premium or interest on
such Securities, whether at maturity
62
or on an interest payment date, by acceleration, pursuant to an offer to
purchase such Securities or otherwise, and interest on the overdue principal of
and interest, if any, on such Securities, if lawful, and all other obligations
of the Company to the Holders of such Securities or the Trustee hereunder or
thereunder shall be promptly paid in full, all in accordance with the terms
hereof and thereof including all amounts payable to the Trustee under Section
6.07 hereof, and (ii) in case of any extension of time of payment or renewal of
any such Securities or any of such other obligations, the same shall be promptly
paid in full when due or to be performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
If the Company fails to make any payment when due of any amount so
guaranteed for whatever reason, the Guarantor of the Securities of that series
shall be obligated, jointly and severally with each other Guarantor, if any, to
pay the same immediately. Each Guarantor hereby agrees that its obligations
hereunder shall be continuing, absolute and unconditional, irrespective of, and
shall be unaffected by, the validity, regularity or enforceability of the
Securities, this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities or the Trustee with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of such
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, demand of performance, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, the benefit of discussion, protest, notice and all demand
whatsoever and covenants that its Guarantee shall not be discharged except by
complete performance of the obligations contained in the Securities guaranteed
by such Guarantee, in this Indenture and in this Article Fifteen. If any Holder
of Securities of a series guaranteed hereby or the Trustee is required by any
court or otherwise to return to the Company or any Guarantor of such Securities,
or any custodian, trustee, liquidator or other similar official acting in
relation to the Company or any Guarantor, any amount paid by the Company or any
Guarantor of such Securities to the Trustee or such Holder, this Article
Fifteen, to the extent theretofore discharged with respect to any Guarantee of
such Securities, shall be reinstated in full force and effect. Each Guarantor
agrees that it shall not be entitled to any right of subrogation in relation to
the Holders of Securities of a series guaranteed hereby by such Guarantor in
respect of any obligations guaranteed hereby by such Guarantee until payment in
full of all such obligations. Each Guarantor further agrees that, as between
such Guarantor, on the one hand, and the Holders of Securities of a series
guaranteed hereby by such Guarantor and the Trustee on the other hand, (i) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Five hereof for the purposes of such Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby and (ii) in the event of any acceleration of
such obligations as provided in Article Five hereof such obligations (whether or
not due and payable) shall forthwith become due and payable by such Guarantor,
jointly and severally with any other Guarantor of such Securities, for the
purpose of this Article Fifteen. In addition, without limiting the foregoing,
upon the effectiveness of an acceleration under Article Five, the Trustee may
make a demand for payment on the Securities under any Guarantee provided
hereunder and not discharged.
With respect to each Guarantee by a Guarantor, such Guarantor shall be
subrogated to all rights of the Holder of any Securities guaranteed hereby by
such Guarantee against the Company
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in respect of any amounts paid to such Holder by such Guarantor pursuant to the
provisions of such Guarantee; provided 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 such Securities shall
have been paid in full.
The Guarantee set forth in this Section 14.02 shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee or any
duly appointed agent.
The Guarantees provided in this Section 14.02 shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee or any
duly appointed agent.
SECTION 15.03. Guarantee Subordinated to Senior Debt of the Guarantor.
Each Guarantor agrees, and each Holder of the Securities by his acceptance
thereof likewise agrees, that the payments pursuant to the Guarantee by each
Guarantor shall be subordinated in accordance with the following provisions of
this Article Fifteen to the prior payment in full of all Senior Debt of each
Guarantor.
"Senior Debt of each Guarantor" means the Principal of and interest on:
(1) all indebtedness for money borrowed by each Guarantor or which
is evidenced by a bond, debenture, note or other similar
instrument or agreement whether or not for money borrowed;
(2) lease obligations of the Guarantor;
(3) all indebtedness, secured or unsecured, in connection with the
acquisition or improvement of any property or asset or the
acquisition of any business by the Guarantor;
(4) all indebtedness secured by any mortgage, lien, pledge, charge
or encumbrance upon property owned by the Guarantor and all
indebtedness secured in the manner specified in this clause
(4) even if a Guarantor has not assumed or become liable for
the payment thereof;
(5) all customer deposits held by each Guarantor in escrow
accounts pending closing of the related sales;
(6) all indebtedness of each Guarantor created or arising under
any conditional sale or other title retention agreement with
respect to property acquired by each Guarantor or otherwise
representing the deferred and unpaid balance of the purchase
price of any such property, including all indebtedness created
or arising in the manner specified in this clause (6) even
though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to
repossession or sale of such property;
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(7) guarantees by each Guarantor, direct or indirect, of any
indebtedness of another Person of the types referred to in
clauses (1), (2), (3), (4), (5) or (6); and
(8) contingent obligations of the Guarantor in respect of, or to
purchase or otherwise acquire or be responsible or liable for
through the purchase of products or services, irrespective of
whether such products are delivered or such services are
rendered, any such indebtedness referred to in clauses (1),
(2), (3), (4), (5) or (6),
which indebtedness, lease obligation, deposit, guarantee or contingent
obligation each Guarantor has directly or indirectly created, incurred, assumed,
guaranteed or otherwise become liable or responsible for, whether currently
outstanding or hereafter created. All references to indebtedness include any
renewals, extensions, refundings, amendments and modifications of any such
indebtedness issued in exchange for such indebtedness; provided, however, that
Senior Debt of each Guarantor shall not include, without limitation (i) a
Guarantee, (ii) the guarantee by each Guarantor of the Subordinated Notes, (iii)
accounts payable or any other indebtedness to trade creditors created or assumed
by each Guarantor in the ordinary course of business in connection with the
obtaining of materials or services, (iv) any liability for federal, state or
local taxes owed or owing by each Guarantor and (v) any indebtedness as to
which, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such indebtedness is on a parity
with or otherwise not superior in right of payment to a Guarantee.
This Article Fifteen shall constitute a continuing offer to all persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Debt of each Guarantor, and such provisions are made for the benefit of
the holders of Senior Debt of the Guarantor, and such holders are made obligees
hereunder and any one or more of them may enforce such provisions.
SECTION 15.04. Guarantors Not to Make Payments With Respect to Securities
in Certain Circumstances.
(a) Upon the maturity of the principal of any Senior Debt of each
Guarantor (other than payment of sinking fund installments) by lapse of time,
acceleration or otherwise, all principal thereof and interest thereon shall
first be paid in full, or such payment duly provided for in cash or in a manner
satisfactory to the holders of such Senior Debt of each Guarantor, before any
payment, pursuant to the Guarantee, is made on account of the principal or
interest on the Securities or to acquire any of the Securities or on account of
the mandatory redemption provisions in the Securities (except mandatory
redemption payments made in respect of Securities acquired by each Guarantor
before the maturity of such Senior Debt of each Guarantor).
(b) Unless Section 15.05 shall be applicable, upon (1) the occurrence of a
Payment Default with respect to Senior Debt of each Guarantor and receipt by
each Guarantor and the Trustee of written notice of such occurrence or (2) upon
the acceleration of such indebtedness, then no payment or distribution of any
assets of each Guarantor of any kind or character shall be made by each
Guarantor or the Trustee on account of principal of (or premium, if any) or
interest
65
on the Securities or on account of the purchase or redemption or other
acquisition of Securities, unless and until such Payment Default shall have been
cured or waived in writing or shall have ceased to exist or such Senior Debt of
each Guarantor shall have been discharged, after which each Guarantor shall
resume making any and all required payments in respect of the Securities,
including any missed payments.
(c) Unless Section 15.05 shall be applicable, upon (1) the occurrence of a
Non-Payment Default and (2) receipt by the Trustee of written notice of such
occurrence, then no payment or distribution of any assets of each Guarantor of
any kind or character shall be made by each Guarantor or the Trustee on account
of any principal of (or premium, if any) or interest on the Securities or on
account of the purchase or redemption or other acquisition of Securities, for a
period ("Payment Blockage Period") commencing on the earlier of the date of
receipt by the Trustee of such written notice from the holder of Senior Debt of
each Guarantor or of the Company, or any representative of a holder of Senior
Debt of each Guarantor or of the Company unless and until (subject to any
blockage of payment that may then be in effect under subsection (a) of this
Section) the earlier of (x) more than 120 days shall have elapsed since receipt
of such written notice by each Guarantor or the Trustee, whichever was earlier,
(y) such Non-Payment Default shall have been cured or waived in writing or shall
have ceased to exist or such Senior Debt of each Guarantor or of the Company
shall have been discharged or (z) such Payment Blockage Period shall have been
terminated by written notice to each Guarantor or to the Company, as the case
may be, or to the Trustee from the holders of the Senior Debt of each Guarantor
or of the Company or any representative of the holders of the Senior Debt of
each Guarantor or of the Company initiating such Payment Blockage Period, after
which, in the case of clause (x), (y) or (z), each Guarantor shall promptly
resume making any and all required payments in respect of the Securities,
including any missed payments. In no event shall a Payment Blockage Period
extend beyond 120 days from the date of the receipt by the Trustee of the notice
referred to in clause (2) hereof (the "Initial Period"). Any number of
additional Payment Blockage Periods may be commenced during the Initial Period;
provided, however, that no such additional period shall extend beyond the
Initial Period. After the expiration of the Initial Period, no Payment Blockage
Period may be commenced on the basis of a Non-Payment Default on the Senior Debt
which was the basis of a Payment Blockage Period commenced during the Initial
Period until at least 270 consecutive days have elapsed from the last day of the
Initial Period. No Non-Payment Default which existed or was continuing on the
date of the commencement of any Payment Blockage Period and of which the
applicable Senior Debt holder(s) are aware shall be, or be made, the basis for
the commencement of a second Payment Blockage Period whether or not within a
period of 270 consecutive days unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
(d) In the event that notwithstanding the provisions of this Section 15.04
each Guarantor shall make, pursuant to this Guarantee, any payment or
distribution of any character to the Trustee on account of the principal of or
interest on the Securities, or on account of the mandatory redemption
provisions, after the happening of an event of default with respect to any
Senior Debt of each Guarantor based on a default in the payment of the principal
or interest on Senior Debt of each Guarantor, or after receipt by the Trustee of
written notice as provided in this Section 15.04 of an Event of Default with
respect to any Senior Debt of each Guarantor, or after the acceleration of the
Securities of any series pursuant to Section 5.01, then, but only if the Trustee
is in receipt of the notice specified in Section 15.08, unless and until such
default or event of default shall have been cured or waived or shall have ceased
to exist, or such
66
acceleration shall have been rescinded, such payment (subject to the provisions
of Sections 15.08 and 15.09) shall be held by the Trustee in trust for the
benefit of, and, if the Senior Debt of each Guarantor shall have been declared
immediately due and payable, shall be paid forthwith over and delivered to, the
holders of Senior Debt of each Guarantor (pro rata as to each of such holders on
the basis of the respective amounts of Senior Debt of each Guarantor held by
them) or their representative or the trustee under the indenture or other
agreement (if any) pursuant to which Senior Debt of each Guarantor may have been
issued, as their respective interests may appear, such payments to be made in
accordance with an Officers' Certificate as provided in Sections 16.05 and 16.06
(on which the Trustee may conclusively rely) identifying all holders of Senior
Debt of each Guarantor and the principal amount of Senior Debt of each Guarantor
then outstanding held by each and stating the reasons why such Officers'
Certificate is being delivered to the Trustee, for application to the payment of
all Senior Debt of each Guarantor remaining unpaid to the extent necessary to
pay all Senior Debt of each Guarantor in full in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Debt of each Guarantor. In the event of the failure of any
Holder of a Security to endorse or assign any such payment or distribution, each
holder of Senior Debt of each Guarantor is hereby irrevocably authorized to
endorse or assign the same. Each Guarantor shall give prompt notice to the
Trustee of any default under any Senior Debt of each Guarantor or under any
agreement pursuant to which Senior Debt of each Guarantor may have been issued,
as required by Section 10.03.
SECTION 15.05. Guarantee Subordinated to Prior Payment of All Senior Debt
of a Guarantor on Dissolution, Winding Up, Liquidation or Reorganization of the
Guarantor.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to a Guarantor, its creditors or its property, (ii) any case or proceeding for
the liquidation, dissolution or other winding-up of a Guarantor, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by such Guarantor for the benefit of creditors, or (iv) any
other marshalling of the assets of such Guarantor:
(a) the holders of all Senior Debt of such Guarantor shall first
be entitled to receive payment in full (or to have such
payment duly provided for) of the principal and interest due
thereon (including any interest thereon accruing after
commencement of any such proceeding) before the Holders of the
Securities are entitled to receive, pursuant to this Guarantee
any payment or any distribution, whether in cash, securities
or other property, on account of the principal or interest on
the Securities;
(b) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities
(other than securities of such Guarantor as reorganized or
readjusted or securities of such Guarantor or any other
company, trust or corporation provided for by a plan of
reorganization or readjustment, junior or the payment of which
is otherwise subordinate, at least to the extent provided in
this Article, to the payment of all Senior Debt of such
Guarantor at the time outstanding and to the payment of all
securities issued in exchange therefor to the holders of the
Senior Debt of such Guarantor at the time outstanding), to
which the
67
Holders of the Securities or the Trustee on behalf of the
Holders of the Securities would be entitled, pursuant to this
Guarantee except for the provisions of this Section 15.05,
including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other
indebtedness of such Guarantor being subordinated to the
payment of the Securities, shall be paid by the liquidating
trustee or agent or other person making such payment or
distribution directly to the holders of Senior Debt of such
Guarantor or their representative(s), or to the trustee under
any indenture under which Senior Debt of such Guarantor may
have been issued (pro rata as to each such holder,
representative or trustee on the basis of the respective
amounts of unpaid Senior Debt of such Guarantor held or
represented by each), to the extent necessary to make payment
in full of all Senior Debt of such Guarantor remaining unpaid
after giving effect to any concurrent payment or distribution
or provision therefor to the holders of such Senior Debt of
such Guarantor; and
(c) in the event that notwithstanding the foregoing provisions of
this Section 15.05, any payment or distribution of assets of
such Guarantor of any kind or character, whether in cash,
property or securities shall be received, pursuant to the
Guarantee, by the Trustee or the Holders of the Securities on
account of principal or interest on the Securities before all
Senior Debt of such Guarantor is paid in full, or effective
provisions made for its payment, such payment or
distribution(subject to the provisions of Sections 15.08 and
15.09) shall be received and held in trust for and shall be
paid over or delivered to the liquidating trustee, agent or
other person making such payment or distribution or to the
holders of the Senior Debt of such Guarantor remaining unpaid
or unprovided for or their representative, or to the trustee
under any indenture under which Senior Debt of such Guarantor
may have been issued (pro rata as provided in subsection (b)
above), for application to the payment of such Senior Debt of
such Guarantor until all such Senior Debt of such Guarantor
shall have been paid in full, after giving effect to any
concurrent payment or distribution or provision therefor to
the holders of such Senior Debt of such Guarantor.
If a Guarantor effects a transaction permitted by Article Nine, such
transaction shall not be deemed to be a dissolution, winding up, liquidation or
reorganization of such Guarantor for purposes of this Section.
A Guarantor shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of such Guarantor,
assignment for the benefit of creditors by such Guarantor or any other
marshalling of assets of such Guarantor.
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SECTION 15.06. Holders to be Subrogated to Rights of Holders of Senior
Debt of each Guarantor.
Subject to the payment in full of all Senior Debt of each Guarantor, the
Holders of the Securities shall be subrogated to the rights of the holders of
Senior Debt of each Guarantor to receive payments or distributions of assets of
each Guarantor applicable to the Senior Debt of each Guarantor until all amounts
owing under the Guarantee shall be paid in full and for the purpose of such
subrogation no payments or distributions to the holders of Senior Debt of each
Guarantor by virtue of this Article Fifteen which otherwise would have been made
to the Holders of the Securities, shall, as between each Guarantor, its
creditors other than holders of its Senior Debt of each Guarantor and the
Holders, be deemed to be a payment by each Guarantor to or on account of the
Senior Debt of each Guarantor, it being understood that the provisions of this
Article Fifteen are solely for the purpose of defining the relative rights of
the holders of Senior Debt of the Guarantors on the one hand and the Holders 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 shall have been applied,
pursuant to the provisions of this Article, to the payment of Senior Debt of
each Guarantor, then and in such case, the Holders shall be entitled to receive
from the holders of such Senior Debt of each Guarantor at the time outstanding
any payments or distributions received by such holders of such Senior Debt of
each Guarantor in excess of the amount sufficient to pay all amounts payable
under or in respect of such Senior Debt of each Guarantor in full.
SECTION 15.07. Obligations of the Guarantor Unconditional. Nothing
contained in this Article Fifteen or elsewhere in this Indenture or in any
Security is intended to or shall impair, as between a Guarantor and the Holders,
the obligations of the Guarantor, which are absolute and unconditional, to pay
to the Holders the principal of and interest on the as and when the same shall
become due and payable in accordance with the provisions of this Guarantee or is
intended to or shall affect the relative rights of the Holders and creditors of
a Guarantor other than the holders of the Senior Debt of such Guarantor, 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 Fifteen of the
holders of Senior Debt of a Guarantor in respect of cash, property or securities
of such Guarantor received upon the exercise of any such remedy.
Upon any distribution of assets of a Guarantor referred to in this Article
Fifteen, the Trustee, subject to the provisions of Sections 6.01 and 6.02, and
the Holders of the Securities 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 proceedings are pending, or a certificate of
the liquidating trustee or agent or other person making any distribution to the
Trustee or to the Holders of the Securities, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the Senior
Debt and other indebtedness of each 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 Fifteen.
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SECTION 15.08. 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, and the Trustee shall not be required to withhold payment to the
Holders of Securities as provided in Section 15.04(d), unless and until the
Trustee shall have received written notice thereof at its Corporate Trust Office
from a Guarantor or from one or more holders of Senior Debt of such Guarantor or
from any representative thereof or trustee therefor identifying the specific
sections of this Indenture involved and describing in detail the facts that
would obligate the Trustee to withhold payments to Holders of Securities, as
well as any other facts required by the next succeeding paragraph of this
Section 15.08; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Sections 6.01 and 6.02, shall be entitled
to assume conclusively that no such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a person representing himself to be a holder of Senior Debt of a
Guarantor (or a trustee on behalf of such holder) to establish that such notice
has been given by a holder of Senior Debt of such Guarantor or a trustee on
behalf of any 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 Debt of a Guarantor to participate in any payment or
distribution pursuant to this Article Fifteen, the Trustee may request such
person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Debt of such Guarantor held by such person, the extent to
which such person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such person under this Article
Fifteen, and if such evidence is not furnished the Trustee may defer any payment
to such person pending judicial determination as to the right of such person to
receive such payment.
SECTION 15.09. Application by Trustee of Monies Deposited with It.
Except as provided in Article Thirteen, any deposit of monies by a
Guarantor with the Trustee or any Paying Agent (whether or not in trust) for the
payment of the principal or interest on any Securities shall be subject to the
provisions of Sections 15.03, 15.04, 15.05 and 15.06 except that, if prior to
the opening of business on the date on which by the terms of this Indenture any
such monies may become payable for any purpose (including, without limitation,
the payment, pursuant to this Guarantee, of either the principal or the interest
on any Security) the Trustee shall not have received with respect to such monies
the notice provided for in Section 15.08, then the Trustee shall have full power
and authority to receive such monies 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, without, however, limiting
any rights that holders of Senior Debt of a Guarantor may have to recover any
such payments from the Holders in accordance with the provisions of this
Article.
SECTION 15.10. Subordination Rights Not Impaired by Acts or Omissions of a
Guarantor or Holders of Senior Debt of such Guarantor.
No right of any present or future holders of any Senior Debt of a
Guarantor to enforce subordination as provided herein shall at any time in any
way be prejudiced or impaired by any
70
act or failure to act on the part of such Guarantor or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by such
Guarantor with the terms of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The holders of
Senior Debt of such Guarantor may extend, renew, modify or amend the terms of
the Senior Debt of such Guarantor or any security therefor and release, sell or
exchange such security and otherwise deal freely with such Guarantor, all
without affecting the liabilities and obligations of the parties to this
Indenture or the Holders.
SECTION 15.11. Holders Authorize Trustee to Effectuate Subordination of
Securities.
Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Fifteen and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of a Guarantor (whether in bankruptcy, insolvency or receivership
proceedings, voluntary liquidation or upon assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Guarantor, the timely filing of a claim for the unpaid balance, pursuant
to this Guarantee, of its or his 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 on or
prior to 30 days before the expiration of the time to file such claim or claims,
then the holders of Senior Debt of the Guarantor have the right to file and are
hereby authorized to file an appropriate claim for and on behalf of the Holders
of said Securities.
SECTION 15.12. Right of Trustee to Hold Senior Debt of a Guarantor.
The Trustee in its individual capacity, shall be entitled to all of the
rights set forth in this Article Fifteen in respect of any Senior Debt of a
Guarantor at any time held by it to the same extent as any other holder of such
Senior Debt of a Guarantor, and nothing in this Indenture shall be construed to
deprive the Trustee of any of its rights as such holder.
SECTION 15.13. Trustee Not Fiduciary for Holders of Senior Debt of a
Guarantor.
With respect to the holders of Senior Debt of a Guarantor, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Fifteen, and no implied covenants
or obligations with respect to the holders of Senior Debt of a Guarantor shall
be read into this Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Debt of a Guarantor and the
Trustee shall not be liable to any holder of Senior Debt of a Guarantor if it
shall pay over or deliver to Holders of Securities, a Guarantor or any other
person monies or assets to which any holder of Senior Debt of such Guarantor
shall be entitled by virtue of this Article Fifteen or otherwise.
SECTION 15.14. Article Fifteen Not To Prevent Events of Default. The
failure to make a payment on account of principal or interest on the Securities
of any series by reason of any provision in this Article Fifteen shall not be
construed as preventing the occurrence of an Event of Default under Section
5.01.
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SECTION 15.15. Execution and Delivery of Guarantee. To evidence a
Guarantee set forth in this Article Fifteen, the Guarantor hereby agrees that
the Guarantee Notation, substantially in the form of Exhibit A hereto, shall be
endorsed on each Security authenticated and delivered by the Trustee that is
guaranteed by such Guarantee and that this Indenture shall be executed on behalf
of such Guarantor by its Chairman of the Board, its President or one of its Vice
Presidents under a facsimile of its seal reproduced thereon.
Each Guarantor hereby agrees that its Guarantee shall remain in full force
and effect notwithstanding any failure to endorse the Guarantee Notation on each
such Security.
If an officer whose signature is on this Indenture or on the Securities
guaranteed hereby no longer holds that office at the time the Trustee
authenticates the Security on which a notation of the Guarantee is endorsed,
such Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of each Guarantee thereof.
ARTICLE SIXTEEN
MISCELLANEOUS
SECTION 16.01. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate of opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 16.02. Notices.
Any notice or communication by the Company, any Guarantor or the Trustee
to the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered
72
or certified, return receipt requested), telex, telecopier or overnight air
courier guaranteeing next day delivery, to the others' address.
If to the Company and/or any Subsidiary Guarantor:
Peabody Energy Corporation
701 Market Street
St. Louis, Missouri 63101-1826
Telecopier No.: (314) 342-3419
Attention: Chief Legal Officer
With a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017-3954 75
Telecopier No. (212) 455-2502
Attention: Rise B. Norman, Esq.
If to the Trustee:
US Bank National Association
Goodwin Square
225 Asylum Street, 23rd Floor
EX-CT-SS
Hartford, Connecticut 06103
Telecopier No.: (860) 241-6881
The Company, any Subsidiary Guarantor or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery; provided,
however, that any notice of communication to the Trustee shall not be deemed to
be received by it until actually received by it at the Corporate Trust Office of
the Trustee.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Security Registrar. Any notice or communication shall also be so mailed
to any Person described in TIA Section 313(c), to the extent required by the
TIA. 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.
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If a notice or communication addressed to a party other than the Trustee
is mailed in the manner provided above within the time prescribed, it is duly
given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 16.03. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 16.04. Trust Indenture Act Controls.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Section 310 through 317, inclusive, of the Trust Indenture Act
through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 16.05. Certificate and Opinion as to Conditions Precedent.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall, upon the
request of the Trustee, furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 16.06 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 16.06 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants, if any, have been satisfied,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of
this
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Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
SECTION 16.06. Statements Required in Certificate or Opinion.
Each certificate (other than certificates provided pursuant to Section
10.06) or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(4) a statement as to whether, in the opinion of such Person, such
condition or covenant has been satisfied.
SECTION 16.07. Table of Contents, Headings, etc..
The Table of Contents, Cross-Reference Table 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 of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 16.08. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Securities shall bind its successors and assigns, whether so expressed or not.
All covenants and agreements in this Indenture by the Trustee and the Securities
shall bind its successors and assigns, whether so expressed or not
SECTION 16.09. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, then, to the extent permitted by applicable
law, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
SECTION 16.10. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person (other than the parties hereto, any Security Registrar, any
Paying Agent, any Authenticating Agent, and their successors hereunder, and the
Holders of Securities) any benefit or any legal or equitable right, remedy or
claim under this Indenture.
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SECTION 16.11. Rules by Trustee and Agents..
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Security Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 16.12. No Personal Liability of Directors, Officers, Employees and
Stockholders..
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor or Person controlling such Persons,
as such, shall have any liability for any obligations of the Company or of the
Guarantors or any Person controlling such Person under the Securities, this
Indenture, the Guarantees or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Securities by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
SECTION 16.13. Governing Law.
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE SECURITIES AND THE GUARANTEES.
SECTION 16.14. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Security) payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
SECTION 16.15. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of principal of or interest on any Security or
for any claim based on any Security or this Indenture shall be had against any
director or officer or stockholder, past, present or future, of the Company or
any other obligor with respect to the Securities. Any such claim against any
such Person is expressly waived as a condition of, and as consideration for, the
execution and delivery of this Indenture and the issue of the Securities.
SECTION 16.16. No Security Interest Created.
Nothing in this Indenture or in the Securities, expressed or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect, in any jurisdiction where property of the Company or its Subsidiaries is
located.
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SECTION 16.17. Counterpart 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.
SECTION 16.18. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other Indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such Indenture, loan or debt agreement may not be used to interpret this
Indenture.
* * * * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
PEABODY ENERGY CORPORATION
By:___________________________________
Name
Title
By:___________________________________
Name
Title
US BANK NATIONAL ASSOCIATION
By:___________________________________
Name
Title
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EXHIBIT A
[FORM OF NOTATION OF SECURITY
RELATING TO GUARANTEE]
GUARANTEE
[Name of Guarantor] (hereinafter referred to as the "Guarantor", which
term includes any successor person under the Indenture (the "Indenture")
referred to in the Security upon which this notation is endorsed) (the "Endorsed
Security"), has unconditionally guaranteed (i) the due and punctual payment of
the principal of, premium, if any, and interest on the Endorsed Security and all
other Securities of the same series as the Endorsed Security (the "Guaranteed
Securities"), whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal of, premium, if any, and
interest, if any, on the Guaranteed Securities, to the extent lawful, and the
due and punctual performance of all other obligations of the Company to the
Holders of Guaranteed Securities or the Trustee all in accordance with the terms
set forth in Article Fifteen of the Indenture and (ii) in case of any extension
of time of payment or renewal of any Guaranteed Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Indenture.
The obligations of the Guarantor to the Holders of Guaranteed Securities
and to the Trustee pursuant to the Guarantee evidenced hereby and the Indenture
are expressly set forth in Article Fifteen of the Indenture and reference is
hereby made to such Indenture for the terms of such Guarantee.
No stockholder, officer, director or incorporator, as such, past, present
or future, of the Guarantor shall have any personal liability under the
Guarantee evidenced hereby by reason of his or its status as such stockholder,
officer, director or incorporator.
The Guarantee evidenced hereby shall not be valid or obligatory for any
purpose until the certificate of authentication of the Guaranteed Securities
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
Guarantor
[SEAL]
[NAME OF GUARANTOR]
By:_____________________
By:_____________________