EXHIBIT 4.1
JANUS CAPITAL GROUP INC.
6.119% SENIOR NOTES DUE 2014
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INDENTURE
Dated as of April 26, 2004
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JPMORGAN CHASE BANK
Trustee
CROSS REFERENCE TABLE(1)
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture
Trust Indenture Act Section Indenture Section
- --------------------------------- -----------------
Section 310 (a)(1) 607(a)
(a)(2) 607(a)
(b) 607(b), 608
Section 312 (c) 701
Section 314 (a) 703
(a)(4) 1005
(c)(1) 102
(c)(2) 102
(e) 102
Section 315 (b) 601
Section 316 (a) (last sentence) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
Section 317 (a)(1) 503
(a)(2) 504
Section 318 (a) 111
(c) 111
- ------------
NOTE: This cross-reference table shall not, for any purpose, be deemed to be a
part of this Indenture.
- ------------
(1) This table will be reviewed and revised upon completion of the Indenture.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions...................................................................... 1
Section 102. Compliance Certificates and Opinions............................................. 8
Section 103. Form of Documents Delivered to Trustee........................................... 8
Section 104. Acts of Holders.................................................................. 9
Section 105. Notices, etc., to Trustee and Company............................................ 10
Section 106. Notice to Holders; Waiver........................................................ 10
Section 107. Effect of Headings and Table of Contents......................................... 10
Section 108. Successors and Assigns........................................................... 10
Section 109. Separability Clause.............................................................. 11
Section 110. Benefits of Indenture............................................................ 11
Section 111. Qualification of Indenture....................................................... 11
Section 112. Governing Law.................................................................... 11
Section 113. Legal Holidays................................................................... 11
ARTICLE II
NOTES FORMS
Section 201. Form of Notes; Denominations..................................................... 11
Section 202. Form of Trustee's Certificate of Authentication.................................. 12
Section 203. Notes Issuable in Global Form.................................................... 12
Section 204. Legends.......................................................................... 13
ARTICLE III
THE NOTES
Section 301. Amount Unlimited................................................................. 14
Section 302. [Intentionally Left Blank]....................................................... 14
Section 303. Execution, Authentication, Delivery and Dating................................... 14
Section 304. Temporary Notes.................................................................. 14
Section 305. Registration, Registration of Transfer and Exchange.............................. 15
Section 306. Mutilated, Destroyed, Lost and Stolen Notes...................................... 19
Section 307. Payment of Interest; Interest Rights Preserved................................... 20
Section 308. Additional Interest.............................................................. 21
Section 309. Persons Deemed Owners............................................................ 21
Section 310. Cancellation..................................................................... 21
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Section 311. Computation of Interest.......................................................... 22
Section 312. Add On Notes..................................................................... 22
Section 313. CUSIP Numbers.................................................................... 22
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.......................................... 23
Section 402. Application of Trust Funds....................................................... 24
ARTICLE V
REMEDIES
Section 501. Events of Default................................................................ 24
Section 502. Acceleration of Maturity; Rescission and Annulment............................... 25
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.................. 26
Section 504. Trustee May File Proofs of Claim................................................. 27
Section 505. Trustee May Enforce Claims Without Possession of Notes........................... 27
Section 506. Application of Money Collected................................................... 28
Section 507. Limitation on Suits.............................................................. 28
Section 508. Unconditional Right of Holders to Receive Principal; Premium and Interest........ 28
Section 509. Restoration of Rights and Remedies............................................... 29
Section 510. Rights and Remedies Cumulative................................................... 29
Section 511. Delay or Omission Not Waiver..................................................... 29
Section 512. Control by Holders of Notes...................................................... 29
Section 513. Waiver of Past Defaults.......................................................... 29
Section 514. Waiver of Stay or Extension Laws................................................. 30
ARTICLE VI
THE TRUSTEE
Section 601. Notice of Defaults............................................................... 30
Section 602. Certain Rights of Trustee........................................................ 30
Section 603. Not Responsible for Recitals or Issuance of Notes................................ 32
Section 604. May Hold Notes................................................................... 32
Section 605. Money Held in Trust.............................................................. 32
Section 606. Compensation and Reimbursement................................................... 32
Section 607. Corporate Trustee Required; Eligibility.......................................... 33
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Section 608. Resignation and Removal; Appointment of Successor................................ 33
Section 609. Acceptance of Appointment by Successor........................................... 34
Section 610. Merger, Conversion, Consolidation or Succession to Business...................... 35
Section 611. Appointment of Authenticating Agent.............................................. 35
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders..................................... 36
Section 702. Reports by Trustee............................................................... 37
Section 703. Reports by Company............................................................... 37
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, Etc., Only on Certain Terms............................. 37
Section 802. Successor Person Substituted..................................................... 38
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders............................... 38
Section 902. Supplemental Indentures with Consent of Holders.................................. 39
Section 903. Execution of Supplemental Indentures............................................. 40
Section 904. Effect of Supplemental Indentures................................................ 40
Section 905. Conformity with Trust Indenture Act.............................................. 41
Section 906. Reference in Notes to Supplemental Indentures.................................... 41
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium and Interest....................................... 41
Section 1002. Maintenance of Office or Agency.................................................. 41
Section 1003. Money for Notes Payments to Be Held in Trust..................................... 42
Section 1004. Statement as to Compliance....................................................... 42
Section 1005. Limitation on Liens.............................................................. 43
ARTICLE XI
REDEMPTION OF NOTES
Section 1101. Company's Right to Redeem; Notice to Trustee..................................... 43
Section 1102. Selection by Trustee of Notes to Be Redeemed..................................... 43
Section 1103. Notice of Redemption............................................................. 44
Section 1104. Deposit of Redemption Price...................................................... 44
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Section 1105. Notes Payable on Redemption Date................................................. 45
Section 1106. Notes Redeemed in Part........................................................... 45
ARTICLE XII
[INTENTIONALLY LEFT BLANK]
ARTICLE XIII
REPURCHASE AT THE OPTION OF HOLDERS
Section 1302. Repurchase of Notes.............................................................. 47
Section 1303. Exercise of Option............................................................... 47
Section 1304. Effect of Repurchase Notice; Withdrawal.......................................... 48
Section 1305. When Notes Presented for Repurchase Become Due and Payable....................... 48
Section 1306. Notes Repurchased in Part........................................................ 49
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Company's Option to Effect Defeasance or Covenant Defeasance..................... 49
Section 1402. Defeasance and Discharge......................................................... 49
Section 1403. Covenant Defeasance.............................................................. 49
Section 1404. Conditions to Defeasance or Covenant Defeasance.................................. 50
Section 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions ........................................... 51
Section 1406. Reinstatement.................................................................... 51
ARTICLE XV
MEETINGS OF HOLDERS OF NOTES
Section 1501. [Intentionally Left Blank]....................................................... 52
Section 1502. Call, Notice and Place of Meetings............................................... 52
Section 1503. Persons Entitled to Vote at Meetings............................................. 53
Section 1504. Quorum; Action................................................................... 53
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.............. 54
Section 1506. Counting Votes and Recording Action of Meetings.................................. 55
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EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
EXHIBIT C FORM OF RULE 144 CERTIFICATION
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INDENTURE, dated as of April 26, 2004, between Janus Capital Group
Inc., a Delaware corporation (the "Company"), having its principal office at 100
Fillmore Street, Denver, Colorado 80206, and JPMorgan Chase Bank, a New York
banking corporation (the "Trustee"), having its Corporate Trust Office at 4 New
York Plaza, 15th Floor, New York, New York 10004.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery
of this Indenture (as defined below) to provide for the issuance of $527,385,000
principal amount of its 6.119% Senior Notes due 2014, as provided herein
(together with any Exchange Notes (as defined below) issued therefor and any Add
On Notes (as defined below) (or any Exchange Notes issued therefor), in each
case as provided herein, the "Notes"); and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders (as defined below) of the
Notes:
Article I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article I have the meanings assigned
to them in this Article I, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act (as defined below) either directly or by reference therein,
have the meanings assigned to them therein, and the terms "cash
transaction" and "self-liquidating paper," as used in Section 311 of the
Trust Indenture Act, shall have the meanings assigned to them in the rules
of the Commission (as defined below) adopted under the Trust Indenture
Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States (as defined below); 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.
"Act" has the meaning specified in Section 104(a).
"Add On Note Board Resolutions" means Board Resolutions providing
for the issuance of Add On Notes.
"Add On Note Supplemental Indenture" means a supplement to this
Indenture duly executed and delivered by the Company and the Trustee pursuant to
Article IX providing for the issuance of Add On Notes.
"Add On Notes" has the meaning specified in Section 312(a).
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent Members" has the meaning specified in Section 203(b).
"AI" means any "accredited investor" (as defined in Rule 501) other
than a QIB.
"AI Note" means a Certificated Note that is a Restricted Note held
by a Specified Accredited Investor.
"Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement, dated as of March 16, 2004, between the Company and
Capital Group Partners, Inc.
"Authenticating Agent" means any authenticating agent appointed by
the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not such newspaper is also published on Saturdays,
Sundays or holidays, and of general circulation in each place in connection with
which the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements, on any Business Day.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Board of Directors" means the board of directors of the Company,
the executive committee or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution that is delivered to
the Trustee, 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.
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"Business Day" means, when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the Notes,
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or particular location are
authorized or obligated by law or executive order to close.
"Certificated Note" means any Note issued in fully-registered
certificated form (other than a Global Note), which shall be substantially in
the form of Exhibit A, with appropriate legends as specified in Section 204 and
Exhibit A.
"Commission" means the United States Securities and Exchange
Commission.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, "Company" shall mean
such successor or successors. The foregoing sentence shall likewise apply to any
subsequent such successor or successors.
"Company Paid Amount" has the meaning specified in Section 1406(c).
"Company Request" and "Company Order" means a written request or
order signed in the name of the Company by any two Officers.
"Corporate Trust Office" means the principal office of the Trustee
at which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 4 New York Plaza, 15th Floor, New York,
New York 10004, Attention, Institutional Trust Services, or such other address
as the Trustee may designate from time to time by notice to the Holders of Notes
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as a successor Trustee may designate from time to
time by notice to the Holders of Notes and the Company).
"corporation" includes corporations, associations, companies and
business trusts.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307(b).
"DTC" means The Depository Trust Company, its nominees and their
respective successors and assigns, or such other depositary institution
hereinafter appointed by the Company that is a clearing agency registered under
the Exchange Act.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means Notes issued in a Registered Exchange Offer
in exchange for a like principal amount of Notes originally issued pursuant to
an exemption from registration under the Securities Act, and replacement Notes
issued therefor in accordance with this Indenture.
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"Global Note" means any Note issued in fully-registered certificated
form to DTC (or its nominee), as depositary for the beneficial owners thereof,
which shall be substantially in the form of Exhibit A, with appropriate legends
as specified in Section 204 and Exhibit A.
"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.
"Holder" means the Person in whose name a Note is registered in the
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 terms of the Notes established herein and the provisions
of the Trust Indenture Act that are deemed to be a part hereof.
"Interest Payment Date" means each April 15 and October 15 of each
year, beginning October 15, 2004.
"Issue Date" means April 26, 2004.
"Maturity" means the date on which the principal of any Note or an
installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, notice of
redemption, notice of option to elect repurchase, notice of exchange or
otherwise.
"Note Custodian" means the custodian with respect to any Global Note
appointed by DTC, or any successor Person thereto, and shall initially be the
Trustee.
"Notes" has the meaning specified in the recitals of this Indenture
and means any Notes authenticated and delivered pursuant to this Indenture.
"Officer" means the Chairman of the Board, the Vice Chairman, the
Chief Executive Officer, the President, any Executive Vice President, any Senior
Vice President, any Vice President, the Treasurer or the Secretary or any
Assistant Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate signed in the
name of the Company by any two Officers and delivered to the Trustee. Any
certificate given pursuant to Section 1004 shall be signed by the principal
executive, principal financial, treasurer or the principal accounting officer of
the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who
may be an employee of, or counsel to, the Company or the Trustee.
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"Optional Repurchase Company Notice" has the meaning specified in
Section 1301(c).
"Optional Repurchase Date" has the meaning specified in Section
1301(a).
"Optional Repurchase Limit" has the meaning specified in Section
1301(b).
"Optional Repurchase Notice" has the meaning specified in Section
1303(a).
"Optional Repurchase Price" has the meaning specified in Section
1301(a).
"Optional Repurchase Right" has the meaning specified in Section
1301(a).
"Outstanding" means, when used with respect to the Notes, as of the
date of determination, all Notes authenticated and delivered under this
Indenture, except:
(i) Notes cancelled by the Trustee or delivered to the Trustee for
cancellation pursuant to the terms of this Indenture;
(ii) Notes, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article XIV;
(iii) Notes, or portions thereof, for whose payment money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Notes; provided that Notes, or portions thereof,
for whose redemption pursuant to Article XI or repurchase pursuant to
Article XIII money in the necessary amount has been so deposited, shall
remain Outstanding, subject to the final proviso to this definition, until
the Company shall have directed the Trustee in writing that such Notes are
to be deemed cancelled; and
(iv) Notes which have been paid pursuant to Section 306, or Notes
which have been exchanged for other Notes which have been authenticated
and delivered pursuant to this Indenture, other than any Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a protected purchaser (as defined in the
Uniform Commercial Code) in whose hands such Notes are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by Section 313(i) of the Trust Indenture Act, Notes owned
by the Company, or any other obligor upon the Notes, or any Affiliate of the
Company or of such other obligor, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Notes
5
so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest, if any, on any Notes on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means, when used with respect to the Notes, the
place or places where the principal of (and premium, if any) and interest, if
any, on such Notes are payable as specified and as contemplated by or pursuant
to Section 1002.
"Predecessor Note" means, when used with respect to any particular
Note, every previous Note evidencing all or a portion to the same debt as that
evidenced by such particular Note; and, for the purposes of this definition, any
Note authenticated and delivered under Section 306 in exchange for or in lieu of
a mutilated, destroyed, lost or stolen Note, shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Note.
"Private Placement Legend" has the meaning specified in Section
204(b).
"QIB" means any "qualified institutional buyer" (as defined in Rule
144A).
"Record Date" has the meaning assigned to it in Exhibit A.
"Redemption Date" has the meaning specified in Section 1101.
"Redemption Limit" has the meaning specified in Section 1101.
"Redemption Notice" has the meaning specified in Section 1103(a).
"Redemption Price" has the meaning specified in Section 1101.
"Redemption Right" has the meaning specified in Section 1101.
"Register" and "Registrar" have the respective meanings specified in
Section 305(a).
"Registered Exchange Offer" means an exchange offer by the Company
registered under the Securities Act pursuant to which Notes originally issued
pursuant to an exemption from registration under the Securities Act are
exchanged for Notes of like principal amount not bearing the Private Placement
Legend.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of April 26, 2004, between the Company and Citigroup Global
Markets Inc.
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"Registration Statement" means an effective shelf registration
statement under the Securities Act that registers the resale by Holders (and
beneficial owners) of Notes (or beneficial interests therein).
"Resale Restriction Termination Date" means, for any Restricted Note
(or beneficial interest therein), two years (or such other period specified in
Rule 144(k)) from the Issue Date or, if any Add On Notes that are Restricted
Notes have been issued before the Resale Restriction Termination Date for any
Restricted Notes, from the latest such original issue date of such Add On Notes.
"Responsible Officer" means, when used with respect to the Trustee,
any officer of the Trustee with direct responsibility for the administration of
this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Note" means any Note issued on the Issue Date (or
beneficial interest therein) or any Add On Note (or any beneficial interest
therein) not originally issued and sold pursuant to an effective registration
under the Securities Act or any Exchange Note, until such time as: (i) such Note
issued on the Issue Date (or beneficial interest therein) or Add On Note (or any
beneficial interest therein) has been transferred pursuant to a Registration
Statement; (ii) the Resale Restriction Termination Date therefor has passed; or
(iii) the Private Placement Legend therefor has otherwise been removed pursuant
to Section 305(e) or, in the case of a beneficial interest in a Global Note,
such beneficial interest has been exchanged for an interest in a Global Note not
bearing a Private Placement Legend.
"Rule 144" means Rule 144 under the Securities Act (or any successor
rule).
"Rule 144A" means Rule 144A under the Securities Act (or any
successor rule).
"Rule 144A Global Note" has the meaning specified in Section 201(d).
"Rule 501" means Rule 501 under the Securities Act (or any successor
rule).
"Securities Act" means the Securities Act of 1933, as amended.
"Special Record Date" means, for the payment of any Defaulted
Interest on the Notes, a date fixed by the Trustee pursuant to Section 307(b).
"Specified AIs" means [o], an [o] of the Company, and [o], an [o] of
the Company, each of which has certified that he or it is an "accredited
investor" (as defined in Rule 501) other than a QIB.
"Stated Maturity" means April 15, 2014.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture was executed, except as provided in
Section 905; provided, however, that in the event the Trust Indenture Act is
amended after such date, "Trust Indenture
7
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939, as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"United States" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. (a) Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel such
action is authorized or permitted by this Indenture and that all such conditions
precedent, if any, have been complied with; and, except in the case of any such
application or request as to which the furnishing of documents is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant
to Section 1004) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(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 each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. (a) 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 as 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.
(b) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel,
or a certificate or
8
representations by counsel. Any such Opinion of Counsel or certificate or
representations may be based, insofar as they relate to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information as to such factual
matters is in the possession of the Company.
(c) 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 104. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of Outstanding Notes may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agents duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Note, shall be sufficient for any
purpose of this Indenture and 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 104. The record of any meeting of Holders of Notes shall be proved
in the manner provided in Section 1506.
(b) The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may be proved
in any manner that the Trustee deems reasonably sufficient.
(c) The ownership of Notes shall be proved by the Register.
(d) If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to
do so. Notwithstanding Section 316(c) of the Trust Indenture Act, such
record date shall be the record date specified in or pursuant to such
Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders of Notes generally in
connection therewith and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite
proportion of Outstanding Notes have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Notes shall be computed as
of such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective
unless
9
it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Registrar, any Paying Agent, any Authenticating Agent or the
Company in reliance thereon, whether or not notation of such action is
made upon such Note.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office; or
(2) the Company by the Trustee or by any Holder of Notes shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified
in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER. (a) Where this Indenture
provides for notice of any event to Holders of Notes by the Company or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
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 of Notes is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder of Notes shall
affect the sufficiency of such notice with respect to other Holders of Notes.
Any notice mailed to a Holder of Notes in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
(b) If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to
give such notice by mail, then such notification to Holders of Notes as
shall be made in a manner approved by the Trustee shall constitute a
sufficient notification to such Holders for every purpose hereunder.
(c) Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
(d) 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 deemed
to be the equivalent of notice given. Waivers
10
of notice by Holders of Notes 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.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in any Note shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person (including any
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder), other than the parties hereto, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. QUALIFICATION OF INDENTURE. The Trustee shall be
entitled to receive from the Company any such Officers' Certificates, Opinions
of Counsel or other documentation as it may reasonably request in connection
with any qualification of this Indenture under the Trust Indenture Act.
SECTION 112. GOVERNING LAW. This Indenture and the Notes shall be
governed by and construed in accordance with the law of the State of New York,
without regard to principles of conflicts of laws that would apply the laws of
any other state.
SECTION 113. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date, Optional Repurchase Date, Stated Maturity or Maturity of
any Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or the Notes which
specifically states that such provision shall apply in lieu of this Section
113), payment of principal (or premium, if any) or interest, if any, need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date, Optional Repurchase
Date, or at the Stated Maturity or Maturity; provided that no interest shall
accrue on the amount so paid for the period from and after such Interest Payment
Date, Redemption Date, Optional Repurchase Date, Stated Maturity or Maturity, as
the case may be.
ARTICLE II
NOTES FORMS
SECTION 201. FORM OF NOTES; DENOMINATIONS. (a) The Notes will be
issued in fully-registered certificated form without coupons, and only in
denominations of $1,000 and any integral multiple of $1,000. The Notes shall be
substantially in the form of Exhibit A.
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(b) The terms and provisions of the Notes, the form of which is in
Exhibit A, shall constitute, and are hereby expressly made, a part of this
Indenture, and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture expressly agree to such
terms and provisions and to be bound thereby. Except as otherwise
expressly permitted in this Indenture, all Notes shall be identical in all
respects. Notwithstanding any differences among them, all Notes issued
under this Indenture shall vote and consent together on all matters as one
class.
(c) The Notes may have notations, legends or endorsements as
specified in Section 204 or as otherwise required by law, stock exchange
rule or DTC rule or usage. The Company and the Trustee shall approve the
form of the Notes and any notation, legend or endorsement on them.
(d) Notes originally offered and sold to QIBs in reliance on Rule
144A will be issued in the form of one or more permanent Global Notes
(each, a "Rule 144A Global Note").
(e) Each Note originally offered and sold to a Specified
Accredited Investor will be issued in the form of an AI Note. Upon such
issuance, the Registrar shall register such AI Note in the name of the
respective Specified Accredited Investor and deliver the certificates for
such AI Notes to the respective Specified Accredited Investor. AI Notes
shall be in minimum denominations of $250,000, except as specified in
Sections 1106 and 1306.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Notes referred to in the within-mentioned
Indenture.
JPMORGAN CHASE BANK,
as Trustee
By: __________________________
Authorized Officer
SECTION 203. NOTES ISSUABLE IN GLOBAL FORM. (a) Each Global Note
initially shall (i) be registered in the name of DTC or the nominee of DTC, (ii)
be delivered to the Note Custodian, and (iii) bear the appropriate legend, as
set forth in Section 204 and Exhibit A. Any Global Note may be represented by
more than one certificate. The aggregate principal amount of each Global Note
may from time to time be increased or decreased by adjustments made on the
records of the Note Custodian, as provided in this Indenture.
(b) Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held
on their behalf by DTC or by the Note Custodian under such Global Note,
and DTC may be treated by the
12
Company, the Trustee, the Paying Agent and the Registrar and any of their
agents as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee, the Paying Agent or the Registrar or any of
their agents from giving effect to any written certification, proxy or
other authorization furnished by DTC or impair, as between DTC and its
Agent Members, the operation of customary practices of DTC governing the
exercise of the rights of an owner of a beneficial interest in any Global
Note. The registered Holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that
may hold interests through Agent Members, to take any action that a Holder
of Notes is entitled to take under this Indenture or the Notes.
(c) Except as provided below, owners of beneficial interests in
Global Notes will not be entitled to receive Certificated Notes.
(i) Notes issued to the Specified Accredited Investors shall be
issued as Certificated Notes.
(ii) Certificated Notes shall be issued to all owners of beneficial
interests in a Global Note in exchange for such interests if:
(1) DTC notifies the Company that it is unwilling or unable to
continue as depositary for such Global Note or DTC ceases to be a clearing
agency registered under the Exchange Act at a time when DTC is required to
be so registered in order to act as depositary, and in each case a
successor depositary is not appointed by the Company within 60 days of
such notice;
(2) the Company executes and delivers to the Trustee and Registrar
an Officers' Certificate stating that such Global Note shall be so
exchangeable; or
(3) an Event of Default has occurred and is continuing and the
Registrar has received a request from DTC.
In connection with the exchange of an entire Global Note for Certificated Notes
pursuant to this Section 203(c)(ii), such Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
upon Company Order the Trustee shall authenticate and deliver, to each
beneficial owner identified by DTC in exchange for its beneficial interest in
such Global Note, an equal aggregate principal amount of Certificated Notes of
authorized denominations.
(d) In connection with the exchange of a portion of a Certificated
Note for a beneficial interest in a Global Note, the Trustee shall cancel
such Certificated Note, and the Company shall execute, and the Trustee
shall authenticate and deliver to the exchanging Holder, a new
Certificated Note representing the principal amount not so exchanged.
SECTION 204. LEGENDS. (a) Each Global Note shall bear the legend
specified therefor in Exhibit A on the face thereof.
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(b) Each Restricted Note shall bear the private placement legend
specified therefor in Exhibit A on the face thereof (together with, if
applicable, the legend specified in Section 204(c), the "Private Placement
Legend").
(c) Each Certificated Note that is a Restricted Note shall bear
the legend specified therefor in Exhibit A on the face thereof.
ARTICLE III
THE NOTES
SECTION 301. AMOUNT UNLIMITED. The aggregate principal amount of
Notes that may be authenticated and delivered under this Indenture is unlimited.
SECTION 302. [INTENTIONALLY LEFT BLANK]
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. (a) The
Notes shall be executed on behalf of the Company by any Officer. The signature
of any Officer on the Notes may be manual or facsimile signature of the present
or any future such authorized Officer and may be imprinted or otherwise
reproduced on the Notes.
(b) Notes bearing the manual or facsimile signature of an
individual who was at any time the proper Officer of the Company shall
bind the Company, notwithstanding that such individual has ceased to hold
such Office prior to the authentication and delivery of such Notes or did
not hold such office at the date of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes, executed by the
Company, to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Notes, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Notes.
(d) Each Note shall be dated the date of its authentication.
(e) No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Note a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Note to the Trustee for
cancellation as provided in Section 310 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Note has never been issued and sold
by the Company, for all purposes of this Indenture such Note shall be
deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
14
The Trustee shall not be required to authenticate such Notes if the
issuance of such Notes pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Notes and this Indenture otherwise in a
manner which is not reasonably acceptable to the Trustee.
SECTION 304. TEMPORARY NOTES. Until definitive Notes are ready for
delivery, the Company may execute and, upon Company Order, the Trustee will
authenticate temporary Notes. Temporary Notes will be substantially in the form
of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company will
prepare and execute and, upon Company Order, the Trustee will authenticate
definitive Notes. After the preparation of definitive Notes, the temporary Notes
will be exchangeable for definitive Notes upon surrender of the temporary Notes
at any office or agency maintained by the Company for that purpose, and such
exchange shall be without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes, the Company will execute and, upon Company
Order, the Trustee will authenticate and make available for delivery in exchange
therefor one or more definitive Notes representing an equal principal amount of
Notes. Until so exchanged, the Holder of temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as a Holder of definitive
Notes.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the Corporate Trust Office of the
Trustee or in any office or agency of the Company in a Place of Payment a
register for the Notes (the registers maintained in such office or in any such
office or agency of the Company in a Place of Payment (being herein sometimes
referred to collectively as the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. The Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Registrar" for the purpose of registering Notes and transfers of Notes on such
Register as herein provided. In the event that the Trustee shall cease to be the
Registrar, it shall have the right to examine the Register at all reasonable
times.
(a) Certificated Notes. Each Certificated Note will be registered
in the name of the Holder thereof.
(b) AI Note Transfers.
(i) No AI Note will be issued to a transferee of an interest in a
Global Note.
(ii) The following provisions shall apply with respect to any
proposed transfer of an AI Note (or portion thereof) that is a Restricted
Note:
(A) If the Holder of an AI Note wishes to transfer such AI Note
(or a portion thereof) to a QIB pursuant to Rule 144A, (x) upon receipt by
the Note Custodian and Registrar of:
(1) such AI Note, duly endorsed as provided herein;
15
(2) instructions from such Holder directing the Note Custodian and
Registrar to credit or cause to be credited a beneficial interest in the
Rule 144A Global Note equal to the principal amount (or portion thereof)
of such AI Note to be transferred, and, if the entire principal amount of
such AI Note is not being transferred, to issue one or more AI Notes to
the transferor in an amount equal to the principal amount not transferred;
and
(3) a certificate in the form of Exhibit B duly executed by the
transferor;
and (y) subject to the rules and procedures of DTC, the Note
Custodian and Registrar shall:
(a) cancel the AI Note delivered to it;
(b) increase the Rule 144A Global Note in accordance with
the foregoing; and
(c) if applicable, issue to the transferor one or more AI
Note(s) in accordance with the foregoing.
(B) No holder of an AI Note may transfer such AI Note (or any
portion thereof) to another AI.
(d) Other Transfers. Any transfer of Restricted Notes not
described above (other than a transfer of a beneficial interest in a
Global Note that does not involve an exchange of such interest for a
Certificated Note or a beneficial interest in another Global Note, which
must be effected in accordance with applicable law and the rules and
procedures of DTC, but is not subject to any procedure required by this
Indenture) shall be made only upon receipt by the Registrar of such
Opinions of Counsel, certificates and/or other information in accordance
with Section 305(e).
(e) Use and Removal of Private Placement Legends. Upon the
transfer, exchange or replacement of Notes (or beneficial interests in a
Global Note) not bearing a Private Placement Legend, the Note Custodian
and Registrar shall exchange such Notes (or beneficial interests) for
beneficial interests in a Global Note (or Certificated Notes if they have
been issued pursuant to Section 203(c)(ii)) that does not bear a Private
Placement Legend. Upon the transfer, exchange or replacement of Notes (or
beneficial interests in a Global Note) bearing a Private Placement Legend,
the Note Custodian and Registrar shall deliver only Notes (or beneficial
interests in a Global Note) that bear a Private Placement Legend unless:
(i) such Notes (or beneficial interests) are exchanged in a
Registered Exchange Offer;
(ii) such Notes (or beneficial interests) are transferred pursuant
to a Registration Statement;
16
(iii) such Notes (or beneficial interests) are transferred pursuant
to Rule 144 upon delivery to the Registrar of a certificate of the
transferor in the form of Exhibit C and an Opinion of Counsel reasonably
satisfactory to the Registrar;
(iv) such Notes (or beneficial interests) are transferred, replaced
or exchanged after the Resale Restriction Termination Date therefor; or
(v) in connection with such registration of transfer, exchange or
replacement the Registrar shall have received an Opinion of Counsel and
other evidence reasonably satisfactory to it to the effect that neither
such Private Placement Legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the
Securities Act.
The Private Placement Legend on any Note shall be removed at the request of the
Holder on or after the Resale Restriction Termination Date therefor. The Holder
of a Global Note may exchange an interest therein for an equivalent interest in
a Global Note not bearing a Private Placement Legend upon transfer of such
interest pursuant to any of clauses (i) through (v) of this Section 305(e). The
Company shall deliver to the Trustee an Officers' Certificate promptly upon
effectiveness, withdrawal or suspension of any Registration Statement.
(f) Consolidation of Global Notes and Exchange of Certificated
Notes for Beneficial Interests in Global Notes.
(i) If a Global Note not bearing a Private Placement Legend is
Outstanding at the time of a Registered Exchange Offer, any interests in a
Global Note exchanged in such Registered Exchange Offer shall be exchanged
for interests in such Outstanding Global Note.
(ii) Upon the registration of transfer or exchange (including
pursuant to a Registered Exchange Offer) of any Certificated Note for
which a Private Placement Legend would not be required pursuant to Section
204(b) following such registration of transfer or exchange, such
Certificated Note shall be exchanged for an interest in a Global Note not
bearing a Private Placement Legend and, if no such Global Note is
Outstanding at such time, the Company shall execute and upon Company Order
the Trustee shall authenticate a Global Note not bearing a Private
Placement Legend.
(iii) Nothing in this Indenture shall provide for the consolidation
of any Notes with any other Notes to the extent that they constitute, as
determined pursuant to an Opinion of Counsel, different classes of
securities for U.S. federal income tax purposes.
(g) Retention of Documents. The Registrar shall retain copies of
all letters, notices and other written communications received pursuant to
this Article III. The Company shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the
Registrar.
(h) Execution, Authentication of Notes, etc.
17
(i) Subject to the other provisions of this Section 305, when
Notes are presented to the Registrar with a request to register the
transfer of such Notes or to exchange such Notes for an equal principal
amount of Notes of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its
requirements for such transaction are met; provided that any Notes
presented or surrendered for registration of transfer or exchange shall be
duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing. To permit registrations of transfers
and exchanges and subject to the other terms and conditions of Section
203(c)(ii) and this Article III, the Company will execute and upon Company
Order the Trustee will authenticate Certificated Notes and Global Notes at
the Registrar's request. In accordance with the Registration Rights
Agreement, the Company will execute and upon Company Order the Trustee
will authenticate Exchange Notes in exchange for Notes.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company or the Trustee may
require payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection
therewith (other than any such transfer taxes, assessments or similar
governmental charges payable upon registration of exchange or transfer
pursuant to a Registered Exchange Offer or to Section 1101).
(iii) The Registrar shall not be required to register the transfer
of or exchange of: (A) any Note for a period beginning 15 days prior to
the mailing of a Redemption Notice and ending at the close of business on
the day of such mailing; (B) any Note selected for redemption pursuant to
Section 1101, in whole or in part, except the unredeemed portion of any
Note being redeemed in part; (C) any Note with respect to which an
Optional Repurchase Notice has been delivered and not withdrawn pursuant
to Section 1304(b), except the portion of such Note, if any, with respect
to which such Optional Repurchase Notice has not been delivered; or (D)
any Note for a period beginning 15 days prior to an Interest Payment Date
and ending on such Interest Payment Date.
(iv) Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent, the Registrar or any
co-Registrar may deem and treat the person in whose name a Note is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Note and for all other
purposes whatsoever, whether or not such Note is overdue, and none of the
Company, the Trustee, the Paying Agent or the Registrar shall be affected
by notice to the contrary.
(v) All Notes issued upon any registration of transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt and
shall be entitled to the same benefits under this Indenture as the Notes
surrendered upon such registration of transfer or exchange.
18
(i) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of an interest in a Global Note, a member of, or a
participant in, DTC or other Person with respect to the accuracy of the
records of DTC or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to the
delivery to any participant, member, beneficial owner or other Person
(other than DTC) of any notice (including any Redemption Notice) or the
payment of any amount or delivery of any Notes (or other security or
property) under or with respect to such Notes. All notices and
communications to be given to the Holders of Notes and all payments to be
made to Holders of Notes in respect of the Notes shall be given or made
only to or upon the order of the registered Holders of Notes (which shall
be DTC or its nominee in the case of a Global Note). The Trustee may rely
and shall be fully protected in relying upon information furnished by DTC
with respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among DTC participants, members or beneficial owners in any Global Note)
other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES. (a) If any
mutilated Note is surrendered to the Trustee or the Company, together with, in
proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of the same principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of
any Note, and (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Note has
been acquired by a protected purchaser (as defined in the Uniform
Commercial Code), the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Note, a new Note with the same principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding.
(c) Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Note has or is about
to become payable, the Company in its discretion may, instead of issuing a
new Note, pay such Note.
19
(d) Upon the issuance of any new Note under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
(e) Every new Note, if any, issued pursuant to this Section 306 in
lieu of any destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Note shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(f) The provisions of this Section 306 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. (a)
Interest, if any, on any Note that 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 Note (or one or more Predecessor Notes) is registered at the close of
business on the Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest, if any, on any Note may at the Company's
option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 309, to the
address of such Person as it appears on the Register or (ii) transfer to an
account maintained by the payee inside the United States.
(b) Any interest on any Note that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder thereof on the relevant 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:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) 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
Note and the date of the proposed payment which shall not be less than 20
days after such notice is received by the Trustee), 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 on
or 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
20
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 of Notes at his address as it
appears in the Register not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Notes
or their respective Predecessor Notes are registered at the close of
business 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 on the
Notes in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes 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
(2), such manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section 307 and
Section 305, each Note delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Note shall carry
the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
SECTION 308. ADDITIONAL INTEREST. Under certain circumstances, the
Company may be obligated to pay additional interest to Holders of Notes, all as
and to the extent set forth in the Registration Rights Agreement. Such
additional interest is deemed to be interest for purposes of this Indenture.
SECTION 309. PERSONS DEEMED OWNERS. (a) Prior to due presentment of
a Note for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest, if any, on such Note and for all other purposes whatsoever, whether or
not such Note be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
(b) None of the Company, the Trustee, any Paying Agent or the
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 Note or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
(c) Notwithstanding the foregoing, with respect to a Global Note,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder of
Notes, with respect to such Global Note or impair, as between such
depositary and owners of beneficial interests in such Global Note, the
operation of customary practices governing the exercise of the rights of
such depositary (or its nominee) as Holder of such Global Note.
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SECTION 310. CANCELLATION. All Notes surrendered for payment,
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee, and any such Notes surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it;
provided, however, that any Notes surrendered to any Person for redemption
pursuant to Article XI or for repurchase pursuant to Article XIII shall, upon
delivery of the consideration to be received by the Holders, be transferred to
and registered in the name of the Person directed by the Company. The Company
may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold, and all Notes so delivered
shall be promptly cancelled by the Trustee. If the Company shall so acquire any
of the Notes, however, such acquisition shall not operate as a satisfaction of
the indebtedness represented by such Notes and such Notes shall remain
Outstanding hereunder unless and until the same are surrendered to the Trustee
for cancellation. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section 310, except as expressly
permitted by this Indenture. Cancelled Notes held by the Trustee shall be
disposed of by the Trustee in accordance with its customary procedures and the
Trustee, upon receipt of the Company's written request, shall deliver a
certificate stating that such cancelled securities have been disposed of, unless
by a Company Order the Company directs their return to it.
SECTION 311. COMPUTATION OF INTEREST. Interest on the Notes shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 312. ADD ON NOTES. (a) The Company may, from time to time,
subject to compliance with Section 312(b) and any other applicable provisions of
this Indenture, without the consent of the Holders of any Notes, create and
issue pursuant to this Indenture additional notes ("Add On Notes") having terms
and conditions set forth in Exhibit A identical to those of the other
outstanding Notes, except that Add On Notes:
(1) may have a different issue date from other Outstanding Notes;
(2) may have a different amount of interest payable on the first
Interest Payment Date after their issuance than is payable on other
Outstanding Notes;
(3) may have terms specified in Add On Note Board Resolutions or
an Add On Note Supplemental Indenture for such Add On Notes, if any,
making appropriate adjustment to this Article III and Exhibit A (and
related definitions) applicable to such Add On Notes in order to conform
to and ensure compliance with the Securities Act (or other applicable
securities laws) and any registration rights or similar agreement
applicable to such Add On Notes, which are not adverse in any material
respect to the Holder of any Outstanding Notes (other than such Add On
Notes); and
(4) may be entitled to additional interest as provided in Section
308 not applicable to other Outstanding Notes and may not be entitled to
such additional interest applicable to other Outstanding Notes.
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(b) The Company may not create or issue any Add On Notes (i) on or
prior to the Redemption Date; (ii) after the Redemption Date but on or
prior to the Optional Repurchase Date unless the Company has redeemed,
pursuant to Section 1101, a principal amount of Notes equal to the
Redemption Limit; or (iii) after the Optional Repurchase Date unless the
Company, if required, has repurchased, pursuant to Article XIII, the
principal amount of Notes with respect to which Holders of Notes have
validly exercised the Optional Repurchase Right.
SECTION 313. CUSIP NUMBERS. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
indicate the "CUSIP" numbers of the Notes 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 Notes or as contained in any notice of redemption and that reliance may
be placed only on the other identification numbers printed on the Notes, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Company shall promptly notify the Trustee in writing of any change
in "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall, upon Company Request, cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Notes expressly
provided for herein or pursuant hereto), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture when:
(1) either:
(A) all Notes theretofore authenticated and delivered have been
delivered to the Trustee for cancellation (other than Notes which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306); or
(B) all Notes not theretofore delivered to the Trustee for
cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year,
and the Company, in the case of (i) or (ii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds
in trust for such purpose an amount sufficient to pay and discharge
the entire indebtedness on such Notes not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any)
and interest, if any, to the date of such deposit (in the case of
Notes which have become due and payable) or to the Stated Maturity,
as the case may be;
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(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 and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section 401, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions
of the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it in accordance
with the provisions of the Notes 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, if any, for whom payment such
money has been deposited with or received by the Trustee, but such money need
not be segregated from other funds except to the extent required by law.
ARTICLE V
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default" wherever used
herein with respect to the Notes means any one of the following events (whatever
the reason for such Event of Default and whether or not it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest (including additional
interest pursuant to Section 308) upon any Note when such interest becomes
due and payable, and continuance of such default for a period of 30 days;
or
(2) default in the payment of the principal of (or premium, if
any, on) any Note when it becomes due and payable at Maturity; or
(3) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture with respect to any Note (other
than a covenant or agreement a default in whose performance or whose
breach is elsewhere in this Section 501 specifically dealt with), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Notes a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
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(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property; or
(D) makes a general assignment for the benefit of its
creditors; or
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case;
(B) appoints a Custodian of the Company or for all or
substantially all of its property; or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 90 days.
The term "Bankruptcy Law" means title 11 U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy
Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. (a)
If an Event of Default with respect to Notes at the time Outstanding occurs and
is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Notes may declare the
principal of all the Notes to be due and payable immediately, by a notice in
writing to the Company and to the Trustee if given by the Holders of Notes, and
upon any such declaration such principal or specified portion thereof shall
become immediately due and payable.
(b) At any time after such a declaration of acceleration with
respect to Notes has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter provided in this
Article Five, the Holders of a majority in principal amount of the Outstanding
Notes, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest, if any, on all
Outstanding Notes;
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(B) the principal of (and premium, if any, on) all
Outstanding Notes that have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates borne by or provided for in such Notes;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
borne by or provided for in the Notes; and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due to
the Trustee under Section 606; and
(2) all Events of Default with respect to Notes, other than the
nonpayment of the principal of (or premium, if any) or interest on Notes
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. (a) The Company covenants that if:
(1) default is made in the payment of any installment of interest
on any Note and when such interest becomes due and payable and such
default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Note when it becomes due and payable at Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of Notes, the whole amount then due and payable on such
Notes for principal (and premium, if any) and interest, if any, with interest
upon any overdue principal (and premium, if any) and, to the extent that payment
of such interest shall be legally enforceable, upon any overdue installments of
interest, if any, at the rate or rates borne by or provided for in such Notes,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due to the Trustee under Section 606.
(b) If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, and may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor upon the
Notes and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon the Notes, wherever situated.
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(c) If an Event of Default with respect to the Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Notes by such
appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper
remedy.
(d) The Trustee, as an express third-party beneficiary of the
Assignment and Assumption Agreement and the obligations of each of the
parties thereto on behalf of the Holders of Notes, shall be entitled to
enforce the Assignment and Assumption Agreement against any party thereto
on behalf of the Holders of Notes. The Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Notes under the Assignment and Assumption Agreement by such appropriate
judicial proceedings as the Trustee shall deem most effectual to enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in the Assignment and Assumption Agreement, or to enforce any
other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. (a) In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Notes or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
any overdue principal, premium or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest, if any, owing and unpaid in respect of
the Notes and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due
to the Trustee under Section 606) and of the Holders of Notes allowed in
such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Notes 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
of Notes, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee and any
predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 606.
(b) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Note any plan of
27
reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder of a Note in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or any of the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes and in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by
the Trustee pursuant to this Article V shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any) or interest, if any,
upon presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Notes for principal (and premium, if any) and interest, if any, in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on the Notes for principal (and premium,
if any) and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or
any other Person or Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS. No Holder of any Note shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Notes;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
28
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall have
any right in a manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL;
PREMIUM AND INTEREST. Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 305) interest, if any, on such Note on the respective due dates
expressed in such Note (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder of a Note has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Trustee and the
Holders of Notes shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and such Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of Notes is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article V or by law to the Trustee or to
the Holders of Notes may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders of Notes, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF NOTES. The Holders of a majority
in principal amount of the Outstanding Notes 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 Notes; provided that:
29
(1) such direction shall not be in conflict with any rule of law
or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) the Trustee need not take any action that might involve it in
personal liability or be unjustly prejudicial to the Holders of Notes not
consenting.
SECTION 513. WAIVER OF PAST DEFAULTS. (a) Subject to Section 502,
the Holders of not less than a majority in principal amount of the Outstanding
Notes may, on behalf of the Holders of all the Notes, waive any past default
hereunder and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any) or
interest if any, on any Note; or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder
of each Outstanding Note affected.
(b) Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence
of any Default hereunder with respect to the Notes, the Trustee shall transmit
in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; provided, however, that, except in
the case of a Default in the payment of the principal of (or premium, if any) or
interest, if any, on any Note, 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 of the Notes; and provided further that in the case of any Default
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or breach of the character specified in Section 501(3) with respect to the
Notes, no such notice to Holders shall be given until at least 60 days after the
occurrence thereof.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. (a) Subject to the
provisions of Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
(2) Any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order (other
than delivery of any Note to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution.
(3) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon a Board Resolution, an Opinion of Counsel
or an Officers' Certificate.
(4) The Trustee may consult with counsel 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.
(5) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Notes pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(6) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon 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.
(7) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
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(8) The Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
(9) The Trustee shall not be charged with knowledge of any Default
or Event of Default with respect to the Notes unless either (A) such
Default or Event of Default is known, or ought reasonably to have been
known, by a Responsible Officer of the Trustee or (B) written notice of
such Default of Event of Default shall have been given to the Trustee by
the Company or any other obligor on the Notes or by any Holder of the
Notes.
(b) The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(c) The permissive rights of the Trustee enumerated herein shall
not be construed as duties.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Notes, except the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Notes and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to the
Company are true and accurate, subject to the qualifications set forth therein.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Notes or the proceeds thereof.
SECTION 604. MAY HOLD NOTES. The Trustee, any Paying Agent, the
Registrar, any Authenticating Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Registrar, Authenticating Agent or such other agent.
SECTION 605. 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 in writing with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT. (a) The Company agrees:
(i) To pay to the Trustee from time to time such compensation
for all services rendered by it hereunder as the Company and the
Trustee shall from time to time agree in
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writing (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust).
(ii) Except as otherwise 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 reasonable compensation and the
expenses, advances and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable to its
negligence or bad faith.
(iii) To indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its own part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
(b) As security for the performance of the obligations of the
Company under this Section 606, the Trustee shall have a claim prior to
the Notes 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, if any, on the Notes.
(c) The provisions of this Section 606 shall survive the
resignation or removal of the Trustee and the termination of this
Indenture.
(d) When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(4) or 501(5),
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 Bankruptcy Law.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at
all times be a Trustee hereunder that shall be eligible to act as Trustee under
Section 310(a)(l) of the Trust Indenture Act and shall have a combined capital
and surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section 607, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 607, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VI.
SECTION 608. 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 Six shall become effective until the acceptance
of appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time by giving 30 days' prior
written notice thereof to the Company.
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(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Notes delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request therefor
by the Company or by any Holder of a Note who has been a bona fide Holder
of a Note for at least six months; or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by
any Holder of a Note who has been a bona fide Holder of a Note for at
least six months; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee, or (ii) subject to Section
315(t) of the Trust Indenture Act, any Holder of a Note who has been a bona fide
Holder of a Note 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 with respect to all Notes and the appointment of a
successor Trustee.
(e) If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days after the giving of
a notice of resignation or the delivery of an Act of removal, the Trustee
resigning or being removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) 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, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Trustee. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Notes 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 and supersede
the successor Trustee appointed by the Company. If no successor Trustee
shall have been so appointed by the Company or the Holders of Notes and
accepted appointment in the manner hereinafter provided, any Holder of a
Note who has been a bona fide Holder of a Note 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.
(g) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee in the
manner provided for
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notices to the Holders of Notes in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of
the appointment hereunder of a successor Trustee, such successor Trustee 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 and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section 609, as the
case may be.
(c) 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 VI.
SECTION 610. 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 that such corporation shall be otherwise qualified and eligible under
this Article VI, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, in case any Notes 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 Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes. In case any
Notes shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Notes, in either its own
name or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. (a) At any time
when any Notes remain Outstanding, the Trustee may appoint an Authenticating
Agent or Authenticating Agents with respect to the Notes which shall be
authorized to act on behalf of the Trustee to authenticate Notes issued upon
exchange, registration of transfer or partial redemption thereof, and Notes 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. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever
35
reference is made in this Indenture to the authentication and delivery of Notes
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, 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 the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section 611, 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 611, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 611.
(b) 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,
provided such corporation shall be otherwise eligible under this Section
611, without the execution or filing of any paper or further act on the
part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent for the Notes may at any time resign
by giving written notice of resignation to the Trustee and to the Company.
The Trustee for the Notes 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 611. The Trustee may appoint a successor
Authenticating Agent, which shall be acceptable to the Company and shall
give notice of such appointment to all Holders of Notes in the manner set
forth in Section 106. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 611.
(d) The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its
reasonable expenses for its services under this Section 611.
(e) If an appointment of any Authenticating Agent is made pursuant
to this Section 611, the Notes may have endorsed thereon, in addition to
or in lieu of the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following form:
36
This is one of the Notes referred to in the within-mentioned
Indenture.
JPMORGAN CHASE BANK
as Trustee
By:___________________________
as Authenticating Agent
By:___________________________
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every
Holder of Notes, 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 Registrar shall be held accountable by reason
of the disclosure of any information as to the names and addresses of the
Holders of Notes in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information is derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 702. REPORTS BY TRUSTEE. (a)Within 60 days after May 15 of
each year commencing with the first May 15 after the Issue Date, the Trustee
shall transmit by mail to all Holders of Notes as provided in Section 313(c) of
the Trust Indenture Act a brief report dated as of such May 15 if required by
Section 313(a) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders of Notes, be filed by the Trustee with each stock
exchange, if any, upon which the Notes are listed, with the Commission and
with the Company. The Company will promptly notify the Trustee of the
listing of the Notes on any stock exchange.
SECTION 703. REPORTS BY COMPANY. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports (or copies of
such portions, if any, of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of such 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
37
and reports that may be required pursuant to Section 13 of the Exchange
Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) comply with all other provisions of Section 314(a) of the
Trust Indenture Act.
Delivery of such reports to the Trustee is for informational purposes only
and the Trustee's receipt of such reports shall not constitute constructive
notice of any information contained therein or determinable from information
contained therein, including the Issuer's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge with or into any other Person or
convey or transfer its properties and assets substantially as an entirety to any
Person, unless:
(1) either the Company shall be the continuing corporation, or the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person that acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety 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 the Notes and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transactions no
Default or Event of Default shall have happened and be continuing; and
(3) the Company and the successor Person have delivered to the
Trustee an Officers Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article VIII and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 801, the
successor Person formed by such
38
consolidation or into which the Company is merged or the successor Person to
which such conveyance or transfer 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 had been named as the Company herein;
and in the event of any such conveyance or transfer, the Company shall be
discharged from all obligations and covenants under this Indenture and the Notes
and may be dissolved and liquidated.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Notes, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Notes contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of the Notes or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of the Notes; provided, however, in respect of any such additional
Events of Default 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 may limit the right of the
Holders of a majority in aggregate principal amount of the Notes to waive
such default; or
(4) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Note Outstanding created prior to the
execution of such supplemental indenture that is entitled to the benefit
of such provision; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(6) to cure any ambiguity, to correct or supplement any provision
herein that may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided that any such action shall not, as
evidenced by an Opinion of Counsel delivered to the Trustee, adversely
affect the interests of the Holders of Notes in any material respect; or
(7) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of Notes pursuant
39
to Sections 401, 1402 and 1403; provided that any such action shall not,
as evidenced by an Opinion of Counsel delivered to the Trustee, adversely
affect the interests of the Holders of Notes in any material respect;
(8) to provide for the issuance of the Exchange Notes, which will
have terms substantially identical to the other Outstanding Notes, except
for the requirement of a Private Placement Legend and related transfer
restrictions under the Securities Act and this Indenture, as to the
applicability of additional interest payable as provided in Section 308,
as to redemption as provided in Article XI and as to repurchase at the
option of the Holder as provided in Article XIII and which will be
treated, together with any other Outstanding Notes, as a single issue of
securities; or
(9) to provide for the issuance of Add On Notes as permitted by
Sections 303 and 312, which will have terms substantially identical to the
other Outstanding Notes except as specified in Section 308 or 312, and
which will be treated, together with any other Outstanding Notes, as a
single issue of securities.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. (a)
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Notes, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by or pursuant to a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Notes under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Note affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, any Note, or
reduce the principal amount thereof or the rate of interest thereon, or
any premium payable in the redemption thereof, or adversely affect any
right of repurchase at the option of the Holder of any Note, or change any
Place of Payment where any Note or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case
exercise of the Redemption Right or the Optional Repurchase Right, on or
after the Redemption Date or the Optional Repurchase Date, as the case may
be); or
(2) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture, or reduce
the requirements of Section 1504 for quorum or voting; or
(3) modify any of the provisions of this Section 902 or Section
513, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Note affected thereby.
40
(b) It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
(c) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders of
Notes on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to consent to such supplemental indenture,
whether or not such Holders remain Holders after such record date;
provided that unless such consent shall have become effective by virtue of
the requisite percentage having been obtained prior to the date that is 90
days after such record date, any such consent previously given shall
automatically and without further action by any Holder of Notes be
cancelled and of no further effect.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article IX or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, in addition to any
documents required by Section 102, and shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture under this Article IX, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article IX shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article Nine may, and shall, if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Notes so modified
as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
ARTICLE X
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The
Company covenants and agrees for the benefit of the Holders of the Notes that it
will duly and punctually
41
pay the principal of (and premium, if any) and interest, if any, on the Notes in
accordance with the terms of the Notes and this Indenture. At the option of the
Company, all payments of principal may be paid by check to the registered Holder
of the Note or other person entitled thereto against surrender of such Note.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. (a) The Company shall
maintain in each Place of Payment for the Notes an office or agency where Notes
may be presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange, and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
(b) The Company may from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for
any or all of such purposes, and may from time to time rescind such
designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in accordance with the requirements set forth above for
Notes for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. The Company hereby designates
as the Place of Payment for the Notes the office or agency of the Company
in the Borough of Manhattan, The City of New York, and initially appoints
the Trustee at its Corporate Trust Office as Paying Agent in such city and
as its agent to receive all such presentations, surrenders, notices and
demands.
SECTION 1003. MONEY FOR NOTES PAYMENTS TO BE HELD IN TRUST. (a) If
the Company shall at any time act as its own Paying Agent for the Notes, it
will, on or before each due date of the principal of (or premium, if any) or
interest, if any, on any of the Notes, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal of
(and premium, if any) and interest, if any, on the Notes 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.
(b) Whenever the Company shall have one or more Paying Agents for
the Notes, it will, on or before each due date of the principal of (or
premium, if any) or interest, if any, on any Notes, deposit with a Paying
Agent a sum sufficient to pay the principal (or premium, if any) or
interest, if any, so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest and
(unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
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(c) The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such sums.
(d) Except as otherwise provided in the Notes, 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, if any, on any Note and remaining unclaimed for two years after
such principal, premium or interest has become due and payable shall be
paid to the Company upon Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment of such principal, premium or interest on any Note, without
interest thereon, 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 an Authorized Newspaper, 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 balance of such money
then remaining will be repaid to the Company.
SECTION 1004. STATEMENT AS TO COMPLIANCE. The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year (beginning
with the fiscal year ending on December 31, 2004), an Officers' Certificate,
stating whether or not to the best knowledge of the signers thereof the Company
is in default in the performance and observance of any of the terms, provisions
and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
SECTION 1005. LIMITATION ON LIENS. The Company will not, and will
not cause or permit any of its subsidiaries to, create, assume, incur or
guarantee any indebtedness for money borrowed that is secured by a pledge,
mortgage, deed of trust or other lien on any voting stock or profit
participating equity interests of Janus Capital Management LLC ("JCM") or any
entity that succeeds (whether by merger, consolidation, sale of assets or
otherwise) to all or any substantial part of the business of JCM, without
providing that the Notes (together with, if the Company shall so determine, any
other indebtedness of, or guarantee by, the Company ranking equally with the
Notes and existing as of the date hereof or hereafter created) will be secured
equally and ratably with or prior to all other indebtedness secured by such
pledge, mortgage, deed of trust or other lien on the voting stock or profit
participating equity interests of JCM; provided that this Section 1005 shall not
limit the Company's ability or the ability of the Company's subsidiaries to
incur indebtedness or other obligations secured by liens on assets other than
the shares of common stock of JCM.
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ARTICLE XI
REDEMPTION OF NOTES
SECTION 1101. COMPANY'S RIGHT TO REDEEM; NOTICE TO TRUSTEE. On May
19, 2004 (the "Redemption Date"), the Company, at its option, may redeem (the
"Redemption Right") up to $445,000,000 principal amount of Notes (the
"Redemption Limit"), for cash, at a Redemption Price equal to 100% of the
principal amount of the Notes to be redeemed (the "Redemption Price"), plus
accrued and unpaid interest, if any, thereon to, but excluding, the Redemption
Date. If the Company elects to redeem Notes pursuant to this Section 1101, it
shall notify the Trustee in writing of the principal amount of Notes to be
redeemed by a Company Order on or prior to April 28, 2004, unless the Trustee
agrees to a later date.
SECTION 1102. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED. (a) If
less than all of the Notes are to be redeemed pursuant to the Redemption Right
the Trustee shall select the particular Notes to be redeemed from the
Outstanding Notes on a pro rata basis. The Trustee shall make the selection
within five Business Days after it receives the notice provided for in Section
1101.
(b) Notes to be redeemed shall be in principal amounts of $1,000
or any integral multiple of $1,000. The Trustee shall promptly notify the
Company and the Registrar in writing of the Notes selected for redemption
and, in the case of any Notes selected for partial redemption, the
principal amount thereof to be redeemed.
(c) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes
shall relate, in the case of any Note redeemed or to be redeemed only in
part, to the portion of the principal amount of such Note which has been
or is to be redeemed.
SECTION 1103. NOTICE OF REDEMPTION. (a) A notice of redemption (a
"Redemption Notice") shall be given in the manner provided in Section 106, on or
prior to May 12, 2004, but failure to give such notice in the manner herein
provided to the Holder of any Note designated for redemption as a whole or in
part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Note or portion
thereof.
(b) Any Redemption Notice that is mailed to the Holders of
Registered Notes in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the
Redemption Notice.
(c) Each Redemption Notice shall state:
(1) the Redemption Date;
(2) the Redemption Price and accrued and unpaid interest, if any,
thereon to, but excluding, the Redemption Date;
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(3) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the principal
amount) of the particular Note or Notes to be redeemed;
(4) in case any Note is to be redeemed in part only, the notice
that relates to such Note shall state that on and after the Redemption
Date, upon surrender of such Note, the Holder will receive, without a
charge, a new Note or Notes of authorized denominations for the principal
amount thereof remaining unredeemed;
(5) that on the Redemption Date, the Redemption Price and accrued
and unpaid interest, if any, thereon to, but excluding, the Redemption
Date will become due and payable upon each such Note, or the portion
thereof, to be redeemed and, that interest thereon shall cease to accrue
on and after the Redemption Date;
(6) the Place or Places of Payment where such Notes are to be
surrendered for payment of the Redemption Price and accrued and unpaid
interest; and
(7) the CUSIP number of such Note.
(d) A Redemption Notice shall be given by the Company, or, at the
Company's request, by the Trustee in the name and at the expense of the
Company.
SECTION 1104. DEPOSIT OF REDEMPTION PRICE. On or prior to 10:00
a.m., New York City time, on the Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay on the Redemption Date the Redemption Price of, and
accrued and unpaid interest on, all the Notes or portions thereof that are to be
redeemed on the Redemption Date.
SECTION 1105. NOTES PAYABLE ON REDEMPTION DATE. (a) Once a
Redemption Notice is given as aforesaid, the Notes so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price together
with accrued and unpaid interest, if any, thereon to, but excluding, the
Redemption Date. Upon surrender in accordance with the Redemption Notice, such
Notes shall be paid at the Redemption Price together with accrued and unpaid
interest, if any, thereon to, but excluding, the Redemption Date.
(b) If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from, and including, the Redemption Date at the rate of
interest set forth in such Note.
SECTION 1106. NOTES REDEEMED IN PART. Any Registered Note that is to
be redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge a new Note or Notes of
the same series, of any authorized denomination as requested by such Holder in
an aggregate principal
45
amount equal to and in exchange for the unredeemed portion of the principal of
the Note so surrendered.
ARTICLE XII
[INTENTIONALLY LEFT BLANK]
ARTICLE XIII
REPURCHASE AT THE OPTION OF HOLDERS
SECTION 1301. HOLDERS' REPURCHASE RIGHT. (a) If the Company declines
to purchase any Notes, or the Company purchases an aggregate principal amount of
Notes less than the Redemption Limit, pursuant to Section 1101, on June 18, 2004
(the "Optional Repurchase Date"), each Holder shall have the right (the
"Optional Repurchase Right"), at the Holder's option, to require the Company to
repurchase, and upon the exercise of the Optional Repurchase Right the Company
shall repurchase on the Optional Repurchase Date, all of such Holder's Notes
(subject to Section 1301(b)), or any portion of the principal amount thereof
that is equal to $1,000 or any integral multiple of $1,000, at a repurchase
price equal to 100% of the principal amount of the Notes to be repurchased (the
"Optional Repurchase Price"), plus accrued and unpaid interest, if any, thereon
to, but excluding, the Optional Repurchase Date. If the Company is required to
repurchase Notes pursuant to this Section 1301(a), it shall notify the Trustee
in writing of the maximum principal amount of Notes it may be required to
repurchase by a Company Order on or prior to May 24, 2004, unless the Trustee
agrees to a later date.
(b) The Company shall not be required to repurchase from all
Holders of Notes exercising the Optional Repurchase Right an aggregate
principal amount of Notes in excess of the Redemption Limit less the
aggregate principal amount of Notes redeemed by the Company pursuant to
Section 1101 (the "Optional Repurchase Limit"). If the Holders exercise
the Optional Repurchase Right with respect to an aggregate principal
amount of Notes in excess of the Optional Repurchase Limit, the Trustee
will select the particular Notes to be repurchased pursuant to the methods
set forth in Section 1102. The Trustee shall make such selection on the
second Business Day prior to the Optional Repurchase Date.
(c) If the Company is required to repurchase Notes under Section
1301(a), a notice (the "Optional Repurchase Company Notice") shall be
given in the manner provided in Section 106, on or prior to May 27, 2004,
but failure to give such notice in the manner herein provided to the
Holder of any Note, or any defect in the notice to any such Holder, shall
not affect the right of any Holder to exercise the Optional Repurchase
Right or affect the validity of the proceedings for the repurchase of any
Notes.
(d) Any Optional Repurchase Company Notice that is mailed to the
Holders of Registered Notes in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the Optional Repurchase Company Notice.
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(e) Each Optional Repurchase Company Notice shall state:
(1) the Optional Repurchase Date;
(2) the date by which the Optional Repurchase Notice must be
delivered in order for a Holder of Notes to exercise the Optional
Repurchase Right;
(3) the Optional Repurchase Price and accrued and unpaid interest,
if any, thereon to, but excluding the Optional Repurchase Date;
(4) the Optional Repurchase Limit;
(5) a description of the procedures that a Holder must follow to
exercise the Optional Repurchase Right, and the Place or Places of Payment
where Notes are to be surrendered for payment of the Optional Repurchase
Price and accrued and unpaid interest, if any;
(6) that on the Optional Repurchase Date, the Optional Repurchase
Price and accrued and unpaid interest, if any, thereon to, but excluding
the Optional Repurchase Date will become due any payable upon each Note,
or the portion thereof, to be repurchased and that interest thereon shall
cease to accrue on and after the Optional Repurchase Date;
(7) the procedures for withdrawing an Optional Repurchase Notice;
and
(8) the CUSIP numbers of such Notes.
(f) At the Company's request, the Trustee shall give the Optional
Repurchase Company Notice in the Company's name and at the Company's
expense, provided that the Company makes such request on or prior to May
24, 2004, unless the Trustee agrees to a later date.
SECTION 1302. REPURCHASE OF NOTES. On or prior to 10:00 a.m., New
York City time, on the Optional Repurchase Date, the Company shall deposit with
the Trustee or with the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 106) an amount
sufficient to pay on the Optional Repurchase Date the Optional Repurchase Price
of, and accrued and unpaid interest on, all the Notes or portions thereof that
are to be repurchased on the Optional Repurchase Date.
SECTION 1303. EXERCISE OF OPTION. (a) A Holder may exercise its
Optional Repurchase Right upon delivery of a written notice of repurchase (an
"Optional Repurchase Notice") to be received by the Paying Agent at any time
from the opening of business on May 27, 2004 until the close of business on June
11, 2004 (unless the Company shall specify a later date), specifying:
(1) if Certificated Notes have been issued, the certificate
numbers of the Notes which the Holder will deliver to be repurchased or,
if Certificated Notes have not been issued, the applicable DTC procedures;
47
(2) the portion of the principal amount of the Note which the
Holder will deliver to be repurchased, which portion must be equal to
$1,000 or any integral multiple of $1,000; and
(3) that such Note shall be repurchased pursuant to the terms and
conditions specified in the Notes and in this Indenture.
(b) The receipt of such Note (together with all necessary
endorsements) by the Paying Agent with the Optional Repurchase Notice at
the offices of the Paying Agent shall be a condition to the receipt by the
Holder of the Optional Repurchase Price therefor; provided, however, that
such Optional Repurchase Price shall be so paid pursuant to this Section
1303 and Section 1304 only if the Note so delivered to the Paying Agent
shall conform in all respects to the description thereof set forth in the
related Optional Repurchase Notice.
(c) The Company shall repurchase from the Holder thereof, pursuant
to this Section 1303 and Section 1304, a portion of a Note if the
principal amount of such portion is equal to $1,000 or any integral
multiple of $1,000. Provisions of this Indenture that apply to the
repurchase of all of a Note also apply to the repurchase of such portion
of such Note.
(d) Any repurchase by the Company contemplated pursuant to the
provisions of this Section 1303 and Section 1304 shall be consummated by
the delivery of the consideration to be received by the Holder.
(e) The Paying Agent shall promptly notify the Company of the
receipt by it of any Optional Repurchase Notice or written withdrawal
thereof.
SECTION 1304. EFFECT OF REPURCHASE NOTICE; WITHDRAWAL. (a) Upon
receipt by the Paying Agent of an Optional Repurchase Notice specified in
Section 1303(a), the Holder of the Note in respect of which such Optional
Repurchase Notice was given shall (unless such Optional Repurchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Optional Repurchase Price, and accrued and unpaid
interest, if any, to the Optional Repurchase Date, with respect to such Note.
(b) An Optional Repurchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent
in accordance with the Optional Repurchase Notice at any time prior to the
close of business on the fifth Business Day prior to the Optional
Repurchase Date, specifying:
(1) if Certificated Notes have been issued, the certificate
number, if any, of the Note in respect of which such notice of withdrawal
is being submitted or, if Certificated Notes have not been issued, such
information as may be required by the appropriate DTC procedures;
(2) the principal amount of the Note with respect to which such
notice of withdrawal is being submitted; and
48
(3) the principal amount, if any, of such Note which remains
subject to the original Optional Repurchase Notice, and which has been or
will be delivered for repurchase by the Company.
(c) The Paying Agent will promptly return to the respective
Holders thereof any Notes with respect to which an Optional Repurchase
Notice has been withdrawn in compliance with this Indenture, upon such
return, the Optional Repurchase Notice with respect thereto shall be
deemed to have been withdrawn.
SECTION 1305. WHEN NOTES PRESENTED FOR REPURCHASE BECOME DUE AND
PAYABLE. (a) If Notes shall have been surrendered as provided in this Article
XIII, such Notes or the portions thereof, as the case may be, to be repurchased
shall, on the Optional Repurchase Date, become due and payable at the Optional
Repurchase Price together with accrued and unpaid interest, if any, thereon to,
but excluding, the Optional Repurchase Date. Upon surrender in accordance with
the Optional Repurchase Company Notice, such Notes shall be repurchased at the
Optional Repurchase Price, together with accrued and unpaid interest, if any,
thereon to, but excluding, the Optional Repurchase Date.
(b) If any Note surrendered for repurchase shall not be so
repurchased upon surrender thereof, the Optional Repurchase Price shall,
until paid, bear interest from, and including, the Optional Repurchase
Date at the rate of interest set forth in such Note.
SECTION 1306. NOTES REPURCHASED IN PART. Upon surrender of any
Registered Note that is to be repurchased in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Note, without service charge and at the expense of the Company, a new Registered
Note or Notes, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of the
principal of such Note so surrendered which is not to be repaid.
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE. The Company may, at its option, by Board Resolution at any time,
with respect to the Notes, elect to have Section 1402 or Section 1403 be applied
to such Outstanding Notes upon compliance with the conditions set forth below in
this Article XIV.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Company's exercise
of the above option applicable to this Section 1402 with respect to any Notes,
the Company shall be deemed to have been discharged from its obligations with
respect to such Outstanding Notes on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Notes, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 1405
and the other Sections of this Indenture referred to in clauses (A) and (B) of
this Section 1402, and to have satisfied all its other obligations under such
Notes and this Indenture insofar as such Notes are concerned (and
49
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Notes to receive, solely from the trust fund described in Section
1404 and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on such Notes when such
payments are due, (B) the Company's obligations with respect to such Notes under
Sections 305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and (D) this Article XIV. Subject to
compliance with this Article XIV, the Company may exercise its option under this
Section 1402 notwithstanding the prior exercise of its option under Section 1403
with respect to such Notes.
SECTION 1403. COVENANT DEFEASANCE. Upon the Company's exercise of
the above option applicable to this Section 1403, the Company shall be released
from its obligations under any covenant specified with respect to any
Outstanding Notes on and after the date the conditions set forth in Section 1404
are satisfied (hereinafter, "covenant defeasance"), and such Notes shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with any such covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 501(3) or otherwise, but, except as specified above,
the remainder of this Indenture and such Notes shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Notes:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article XIV
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Notes, (i) an amount in United States
dollars, or (ii) Government Obligations, which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of principal
of (and premium, if any) and interest, if any, on such Notes, money in an
amount, or (iii) a combination thereof in an amount, sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, the principal of (and premium, if any) and interest, if any, on
such Outstanding Notes on the Stated Maturity of such principal or installment
of principal or interest.
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(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Default or Event of Default with respect to such Notes
shall have occurred and be continuing on the date of such deposit or,
insofar as Sections 501(4) and 501(5) are concerned, at any time during
the period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income
tax law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Notes will not
recognize income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Notes will not recognize income, gain
or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403, as the case may be, have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403, as the case may be,
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the trustee for such trust funds or (ii) all necessary
registrations under such Act have been effected.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS. (a) Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (including
the proceeds thereof deposited with the Trustee or other qualifying trustee
(collectively, for purposes of this Section 1405, the "Trustee") pursuant to
Section 1404 in respect of any Outstanding Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Notes 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 Notes of all sums due and to become due
thereon in respect of principal (and premium, if any) and
51
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
(b) The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Notes.
(c) Anything in this Article XIV to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Article XIV.
SECTION 1406. REINSTATEMENT. (a) If the Trustee or Paying Agent is
unable to apply any money or Government Obligations in accordance with Section
1405 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit has occurred
pursuant to this Article XIV until such time as the Trustee or Paying Agent is
permitted to apply all such money or Government Obligations in accordance with
Section 1405.
(b) If the Company's obligations under this Indenture and the
Notes issued hereunder shall be revived and reinstated in accordance with this
Section 1406, the Company shall be permitted, at its discretion to withdraw all
or a portion of the deposits made by the Company pursuant to this Article XIV.
(c) If the Company elects not to withdraw any of the deposits made
by the Company pursuant to this Article XIV, if and when the Trustee or Paying
Agent is later permitted to apply all such money or Government Obligations in
accordance with Section 1405, the rights of the Company shall be subrogated to
the rights of the Holders of the Notes to receive payments from the money or
Government Obligations deposited by the Company pursuant to Article XIV and held
by the Trustee or Paying Agent; provided that if the Company shall have made any
payment of principal or interest on the Notes because of the revival and
reinstatement of its obligations, which payment is not sourced from any amounts
deposited by the Company pursuant to this Article XIV (such amount, in the
aggregate, being referred to as the "Company Paid Amount"), the Company shall be
permitted, at its discretion, to withdraw all or a portion of the deposits made
by the Company pursuant to this Article XIV up to the Company Paid Amount.
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ARTICLE XV
MEETINGS OF HOLDERS OF NOTES
SECTION 1501. [INTENTIONALLY LEFT BLANK]
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee
may at any time call a meeting of Holders of the Notes, to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of the
Notes, to be held at such time and at such place in the Borough of Manhattan,
The City of New York, as the Trustee shall determine. Notice of every meeting of
Holders of the Notes, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Notes shall have requested the Trustee to call a meeting of
the Holders of the Notes for any purpose specified in Section 1502(a), by
written request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of the Notes in
the amount above specified, as the case may be, may determine the time and
the place in the Borough of Manhattan, The City of New York, for such
meeting and may call such meeting for such purposes by giving notice
thereof as provided in Section 1502(a).
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled
to vote at any meeting of Holders of the Notes, a Person shall be (i) a Holder
of one or more Outstanding Notes, or (ii) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding Notes by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of the Notes shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 1504. QUORUM; ACTION. (a) The Persons entitled to vote a
majority in principal amount of the Outstanding Notes shall constitute a quorum
for a meeting of Holders of Notes; provided, however, that if any action is to
be taken at such meeting with respect to a consent or waiver that this Indenture
expressly provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Notes, the Persons entitled to
vote such specified percentage in principal amount of the Outstanding Notes
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of the Notes, be dissolved. In any other case the meeting may
be adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a
53
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Notes which shall constitute a
quorum.
(b) Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the affirmative
vote of the Holders of a majority in principal amount of the Outstanding
Notes; provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that
this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Notes may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Notes.
(c) Any resolution passed or decision taken at any meeting of
Holders of Notes duly held in accordance with this Section 1504 shall be
binding on all the Holders of Notes, whether or not present or represented
at the meeting.
(d) Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of the Notes with
respect to any request, demand authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Notes affected thereby:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Notes that vote in
favor of such request, demand, authorization, direction, notice, consent,
waiver or other action shall be taken into account in determining whether
such request, demand, authorization, direction, notice, consent, waiver or
other action has been made, given or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS. (a) Notwithstanding any provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of the Notes in regard to proof of the holding of Notes
and of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Notes shall be
proved in the manner specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section
54
104. Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of the Notes as provided in Section
1502(b), in which case the Company or the Holders of the Notes calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Notes represented at the meeting.
(c) At any meeting, each Holder of a Note or proxy shall be
entitled to one vote for each $1,000 principal amount of Outstanding Notes
held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Note challenged as not
Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Note or proxy.
(d) Any meeting of Holders of Notes duly called pursuant to
Section 1502(b) at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in principal amount of the
Outstanding Notes represented at the meeting, and the meeting may be held
as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The
vote upon any resolution submitted to any meeting of Holders of the Notes shall
be by written ballots on which shall be subscribed the signatures of the Holders
of the Notes or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of the Notes shall be
prepared by the secretary of the meeting, and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
* * * * *
This Indenture 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 Indenture.
55
IN WITNESS WHEREOF, the undersigned being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
JANUS CAPITAL GROUP INC.
By: /s/ Loren Starr
------------------------------
Name: Loren Starr
Title: Chief Financial Officer
JPMORGAN CHASE BANK, as Trustee
By: /s/ Craig Baumberger
--------------------------
Name: Craig Baumberger
Title Assistant Vice President
56
EXHIBIT A
FORM OF NOTE
[Include the following legend for Global Notes only:
"THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO
HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK,
NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF."]
[Include the following legend on all Notes that are Restricted Notes:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THESE
SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION.]
[Include the following legend on all Certificated Notes that are
Restricted Notes:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
SUCH OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE IN FORM REASONABLY SATISFACTORY TO IT AS PROVIDED FOR
IN THE INDENTURE
A-1
TO CONFIRM THAT THE TRANSFER COMPLIED WITH THE FOREGOING RESTRICTIONS AS
PROVIDED FOR IN THE INDENTURE."]
[CUSIP NO. GLOBAL NOTE: 47102X AA 3]
[CUSIP NO. DEFINITIVE NOTE: 47102X AB 1]
No.
6.119% Senior Notes due 2014
$
JANUS CAPITAL GROUP INC.
Janus Capital Group Inc., a Delaware corporation (herein referred to as
the "Company," which term includes any successor corporation under the Indenture
hereinafter defined), for value received, hereby promises to pay to , or
registered assigns, the principal sum of $ [If this Note is a Global Note, add
the following, as revised by the Schedule of Increases or Decreases in Global
Note attached hereto], on April 15, 2014 (the "Maturity Date") and to pay
interest thereon from April 26, 2004, or from the most recent Interest Payment
Date (hereinafter defined) to which interest has been paid or duly provided for,
semiannually on April 15 and October 15 of each year (each, an "Interest Payment
Date"), commencing October 15, 2004, at 6.119% per annum until the principal
hereof is paid or duly provided for.
Any payment of principal or interest required to be made on a day that is
not a Business Day need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on such day,
and no interest shall accrue as a result of such delayed payment. Interest
payable on each Interest Payment Date will include interest accrued from and
including April 26, 2004 or from and including the most recent Interest Payment
Date to which interest has been paid or duly provided for, as the case may be,
to but excluding such Interest Payment Date.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
(the "Holder") in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the April 1 and October 1 (whether or not
a Business Day) immediately preceding such Interest Payment Date (each, a
"Record Date"). Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the registered
Holder on such Regular Record Date and may either (1) be paid to the Person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee (referred to herein), notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been given
to the Holder of this Note not less than ten days prior to such Special Record
Date, or (2) be paid at any time in any other lawful manner, all as more fully
provided in the Indenture.
For purposes of this Note, "Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions
in New York, New York are authorized or obligated by law or executive order to
close.
A-2
Payment of the principal of this Note on the Maturity Date will be made
against presentation of this Note at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, the City of New York,
in such coin or currency of the United States as at the time of payment is legal
tender for the payment of public and private debts. So long as this Note remains
in book-entry form, all payments of principal and interest will be made by the
Company in immediately available funds.
[The holder of this Note is entitled to the benefits of the Registration
Rights Agreement, dated as of , between the Company and (the "Registration
Rights Agreement"). If (1) neither the Exchange Offer Registration Statement nor
the Shelf Registration Statement (as such terms are defined in the Registration
Rights Agreement), as the case may be, is filed with the Commission on or prior
to the date which is, in the case of the Exchange Offer Registration Statement,
90 days following the Issue Date or, in the case of the Shelf Registration
Statement, 60 days after so requested, (2) the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, is not
declared effective within, in the case of the Exchange Offer Registration
Statement, 150 days after the Issue Date or, in the case of the Shelf
Registration Statement, 120 days after so requested, (3) if the Exchange Offer
Registration Statement is declared effective, the Registered Exchange Offer (as
such term is defined in the Registration Rights Agreement) is not consummated
within 180 days after the Issue Date or (4) the applicable Registration
Statement (as such term is defined in the Registration Rights Agreement) is
filed and declared effective but shall thereafter cease to be effective or
useable at any time that the Company is obligated to maintain the effectiveness
or usability thereof (each such event referred to in clauses (1) through (4), a
"Registration Default"), the Company shall be obligated to pay additional
interest ("Additional Interest") to each Holder of the Notes, during the period
of one or more such Registration Defaults, at a rate of 0.25% per annum for the
first 90 days, increased by an additional 0.25% per annum thereafter, on the
applicable principal amount of Notes held by such holder until all Registration
Defaults have been cured. Such obligation to pay Additional Interest shall
survive until (a) the applicable Registration Statement is filed, (b) the
Exchange Offer Registration Statement is declared effective or the Registered
Exchange Offer is consummated with respect to all properly tendered Notes, (c)
the Shelf Registration Statement is declared effective or (d) the applicable
Registration Statement again becomes effective (or is superseded by another
effective Registration Statement), as the case may be. At any time that all
Registration Defaults have been cured, the accrual of Additional Interest will
cease.
The Company shall notify the Trustee and the Paying Agent under the
Indenture immediately upon the happening of each and every Registration Default.
The Company shall pay the Additional Interest due on the Notes by depositing
with the Paying Agent (which may not be the Company for these purposes), in
trust, for the benefit of the holders thereof, on the next applicable Interest
Payment Date specified by the Indenture and the Notes, sums sufficient to pay
the Additional Interest then due. The Additional Interest due shall be payable
on each applicable Interest Payment Date specified by the Indenture and the
Notes to the record holder entitled to receive the interest payment to be made
on such date. Each obligation to pay
A-3
Additional Interest shall be deemed to accrue from and including the date of the
applicable Registration Default.]*
General. This Note is one of a duly authorized issue of securities of the
Company designated as "6.119% Senior Notes due 2014" (collectively, the
"Notes"), issued under an indenture (the "Indenture"), dated as of April 26,
2004, between the Company and JPMorgan Chase Bank, a New York banking
corporation, as trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture). Reference is made to the Indenture and
all indentures supplemental thereto for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes, and of the terms upon which the Notes are,
and are to be, authenticated and delivered. To the extent that any provisions of
this note conflict with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling.
Events of Default. If an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal of the Notes may be declared due
and payable in the manner and with the effect provided in the Indenture.
Modification and Waivers; Obligations of the Company Absolute. The
Indenture permits the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes, subject
to certain exceptions set forth in the Indenture. Such amendments may be
effected under the Indenture at any time with the consent of the Holders of not
less than a majority in principal amount of the Outstanding Notes, subject to
certain exceptions set forth in the Indenture. The Indenture also contains
provisions permitting the Holders of not less than a majority in principal
amount of the Notes at the time Outstanding, on behalf of the Holders of all
Notes at such time Outstanding, to waive compliance by the Company with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
Holders of not less than a majority in principal amount of the Outstanding Notes
to waive, on behalf of all of the Holders of such Notes, certain past defaults
under the Indenture and their consequences. Any such consent or waiver shall be
conclusive and binding upon the Holder of this Note and upon all future Holders
of this Note and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Redemption at the Option of the Company. On May 19, 2004 (the "Redemption
Date"), the Company, at its option, may redeem up to $445,000,000 principal
amount of Notes (the "Redemption Limit"), for cash, at a redemption price equal
to 100% of the principal amount of the Notes to be redeemed (the "Redemption
Price"), plus accrued and unpaid interest, if any, thereon to, but excluding,
the Redemption Date.
- ------------
* Insert for Notes issued subject to a Registration Rights Agreement.
A-4
Except as set forth in the Indenture, from and after the Redemption Date,
if monies for the redemption of the Notes called for redemption shall have been
deposited with the Trustee or with the Paying Agent for redemption of such
Notes, then such Notes will cease to bear interest and the only right of the
Holders of such Notes will be to receive payment of the Redemption Price
together with accrued and unpaid interest, if any, thereon to, but excluding,
the Redemption Date.
Notice of Redemption. Notice of redemption will be mailed on or prior to
May 12, 2004 to each Holder of Notes to be redeemed. Notice shall be given to
Holders in accordance with Section 106 of the Indenture; provided, however, that
for so long as the Notes are represented in their entirety by Global Notes, then
Notice shall be given by mailing such notice to the Holder's address as it
appears on the Register with a copy mailed to the Trustee.
Repurchase at the Option of Holders. If the Company declines to purchase
any Notes, or purchases an aggregate principal amount of Notes less than the
Redemption Limit, pursuant to the Section 1101 of the Indenture, on June 18,
2004 (the "Optional Repurchase Date"), each Holder shall have the right (the
"Optional Repurchase Right"), at the Holder's option, to require the Company to
repurchase, and upon the exercise of the Optional Repurchase Right the Company
shall repurchase on the Optional Repurchase Date, all of such Holder's Notes
(subject to the immediately succeeding sentence), at a redemption price equal to
100% of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to, but excluding, the Optional Repurchase Date. The Company shall not
be required to repurchase from all Holders of Notes exercising the Optional
Repurchase Right an aggregate principal amount of Notes in excess of the
Redemption Limit less the aggregate principal amount of Notes purchased by the
Company pursuant to Section 1101 of the Indenture. No single Note may be
repurchased in part unless the portion of the principal amount of such Note to
be outstanding after such repurchase is equal to an integral multiple of $1,000
and the principal amount repurchased is equal to $1,000 or any integral multiple
of $1,000.
Notice of Repurchase, Withdrawal. Notice of repurchase must be received by
the Paying Agent at any time from the opening of business on May 27, 2004 until
the close of business on June 11, 2004, unless the Company specifies a later
date. A holder may withdraw its notice of repurchase by means of a notice of
withdrawal delivered to the office of the Paying Agent at any time prior to the
close of business on the fifth Business Day prior to the Optional Repurchase
Date.
Defeasance and Covenant Defeasance. The Indenture contains provisions for
defeasance at any time of (1) the entire indebtedness of the Company on this
Note and (2) certain restrictive covenants and the related defaults and Events
of Default, upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Note.
Authorized Denominations. The Notes are issuable only in registered form
without coupons in denominations of [If this Note is a Global Note, add $1,000]
[if this Note is an AI Note, add $250,000, except as specified in Sections 1106
and 1306 of the Indenture] and any integral multiple of $1,000.
A-5
Registration of Transfer or Exchange. As provided in the Indenture and
subject to certain limitations herein and therein set forth, the transfer of
this Note is registrable in the Register upon presentation of this Note for
registration of transfer at the office or agency of the Company in any place
where the principal of and interest on this Note are payable, duly endorsed by
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, the Notes are exchangeable for a like aggregate principal
amount of Notes of different authorized denominations, as requested by the
Holders surrendering the same.
[This Note is a Global Note. Certificated Notes shall be issued to all
owners of beneficial interests in a Global Note in exchange for such interests
if: (1) the depositary with respect to the Notes (which shall initially be DTC)
notifies the Company that it is unwilling or unable to continue as depositary
for such Global Note or the depositary ceases to be a clearing agency registered
under the Exchange Act, at a time when the depositary is required to be so
registered in order to act as depositary, and in each case a successor
depositary is not appointed by the Company within 60 days of such notice; (2)
the Company executes and delivers to the Trustee and Registrar an Officers'
Certificate stating that such Global Note shall be so exchangeable; or (3) an
Event of Default has occurred and is continuing and the Registrar has received a
request from the depositary. In connection with the exchange of an entire Global
Note for Certificated Notes pursuant to this paragraph, such Global Note shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the depositary in exchange for its beneficial interest in
such Global Note, an equal aggregate principal amount of Certificated Notes of
authorized denominations.
Except as set forth in the Indenture, no service charge shall be made for
any such registration of transfer or exchange, but the Company or the Trustee
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.]**
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee, the Paying Agent, the Registrar or any co-Registrar may
treat the Holder as the owner hereof for all purposes, whether or not this Note
be overdue, and none of the Company, the Trustee, the Paying Agent or the
Registrar shall be affected by notice to the contrary.
Defined Terms. Unless otherwise defined in this Note, all capitalized
terms used in this Note shall have the meanings assigned to them in the
Indenture.
Governing Law. This Note shall be governed by and construed in accordance
with the law of the State of New York, without regard to principles of conflicts
of laws that would apply the laws of any other state.
- ------------
** Insert for Notes that are Global Notes.
A-6
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
******
A-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed as of the date hereof.
Dated: JANUS CAPITAL GROUP INC.
By:_____________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the
within-mentioned Indenture
JPMORGAN CHASE BANK,
as Trustee
By:_____________________________
Authorized Officer
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of Janus Capital Group Inc. The agent may
substitute another to act for him.
Date:__________________
Your Signature
_________________________________________
(Sign exactly as your name appears on the
face of this Note)
Signature guarantee:
[If this Note includes a Private Placement Legend, add In connection with any
transfer of any of Notes evidenced by this certificate which are "restricted
securities" (as defined in Rule 144 (or any successor thereto) under the
Securities Act of 1933), the undersigned confirms that such Securities are being
transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
A-9
(2) [ ] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) [ ] pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(4) [ ] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder; or
(5) [ ] pursuant to an effective registration statement under the
Securities Act of 1933.
Unless one of the boxes is checked, the Registrar will refuse to
register any of the Notes evidenced by this certificate in the name
of any person other than the registered holder thereof; provided,
however, that if box (3) or (4) is checked, the Trustee may require,
prior to registering any such transfer of the Notes, such
certifications and other information, and if box (4) is checked such
legal opinions, as the Company has reasonably requested in writing,
by delivery to the Trustee of a standing letter of instruction, to
confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933; provided that this
paragraph shall not be applicable to any Notes which are not
"restricted securities" (as defined in Rule 144 (or any successor
thereto) under the Securities Act of 1933).
Your Signature:________________________________________
(Sign exactly as your name appears on
the other side of this Note)
Date:____________________________
Medallion Signature Guarantee: ________________________
A-10
[To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized signatory
Principal Amount of Principal Amount of following such of Trustee or Note
Date this Global Note this Global Note decrease or increase Custodian
- ------ --------------------- --------------------- -------------------- --------------------
]
A-11
EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER TO QIB
[Date]
JPMorgan Chase Bank
4 New York Plaza, 15th Floor
New York, New York, 10004
Attn: Institutional Trust Services
Re: 6.119% Senior Notes due 2014 (the "Notes")
of Janus Capital Group Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of April 26,
2004 (as amended and supplemented from time to time, the "Indenture"), between
the Company and JPMorgan Chase Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given them in the Indenture.
This letter relates to $___________ aggregate principal amount of
Notes [in the case of a transfer of an interest in a Rule 144A Global Note: ,
which represents an interest in a Rule 144A Global Note beneficially owned by]
[in the case of a transfer of an AI Note: which are held in the name of] the
undersigned (the "Transferor") to effect the transfer of such Notes in exchange
for an equivalent beneficial interest in the Rule 144A Global Note.
In connection with such request, and with respect to such Notes, the
Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), to a transferee that the Transferor reasonably believes is purchasing
the Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion, and the transferee, as well as any such
account, is a "qualified institutional buyer" within the meaning of Rule 144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
B-1
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
B-2
EXHIBIT C
FORM OF RULE 144 CERTIFICATION
[Date]
JPMorgan Chase Bank
4 New York Plaza, 15th Floor
New York, New York, 10004
Attn: Institutional Trust Services
Re: 6.119% Senior Notes due 2014 (the "Notes")
of Janus Capital Group Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of April 26,
2004 (as amended and supplemented from time to time, the "Indenture"), between
the Company and JPMorgan Chase Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given them in the Indenture.
In connection with our proposed sale of $________ aggregate
principal amount of Notes [in the case of a transfer of an interest in a Rule
144A Global Note: , which represent an interest in a Rule 144A Global Note
beneficially owned by] [in the case of a transfer of an AI Note: held in the
name of] the undersigned ("Transferor"), we confirm that such sale has been
effected pursuant to and in accordance with Rule 144 under the Securities Act.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
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