Exhibit 4.1
Ralcorp Holdings,
Inc.,
the Guarantors that are party
hereto
and
Deutsche Bank Trust Company
Americas
as Trustee
----------
Senior Secured
Indenture
Dated as of August 14,
2009
TABLE OF CONTENTS
PAGE
|
ARTICLE I. DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
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1
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Section 1.1.
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Definitions.
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1
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Section 1.2.
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Compliance Certificates and Opinions.
|
10
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Section 1.3.
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Form of Documents Delivered to
Trustee.
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11
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Section 1.4.
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Notices, Etc., to Trustee, Guarantors and
Company.
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11
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Section 1.5.
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Notice to Holders; Waiver.
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12
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Section 1.6.
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Conflict With Trust Indenture Act.
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12
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Section 1.7.
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Effect of Headings and Table of
Contents.
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12
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Section 1.8.
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Successors and Assigns.
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13
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Section 1.9.
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Separability Clause.
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13
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Section 1.10.
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Benefits of Indenture.
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13
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Section 1.11.
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Governing Law.
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13
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Section 1.12.
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Legal Holidays.
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13
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Section 1.13.
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Liability Solely Corporate.
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13
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Section 1.14.
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Waiver of Jury Trial.
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14
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Section 1.15.
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Consent to Jurisdiction and Service.
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14
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Section 1.16.
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Force Majeure.
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15
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Section 1.17.
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U.S.A. Patriot Act.
|
15
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|
|
|
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ARTICLE II. DEBT SECURITY
FORMS
|
15
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Section 2.1.
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Forms Generally.
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15
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Section 2.2.
|
Form of Trustee’s Certificate of
Authentication.
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16
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Section 2.3.
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Securities in Global Form.
|
16
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|
|
|
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ARTICLE III. THE DEBT
SECURITIES
|
16
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Section 3.1.
|
Amount Unlimited; Issuable in Series.
|
16
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Section 3.2.
|
Denominations.
|
20
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Section 3.3.
|
Execution, Authentication, Delivery and
Dating.
|
20
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Section 3.4.
|
Temporary Debt Securities; Global
Notes Representing Debt Securities.
|
23
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Section 3.5.
|
Registration, Transfer and Exchange.
|
25
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Section 3.6.
|
Mutilated, Destroyed, Lost and Stolen Debt
Securities.
|
26
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Section 3.7.
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Payment of Interest; Interest Rights
Preserved.
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27
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Section 3.8.
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Cancellation.
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28
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Section 3.9.
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Computation of Interest.
|
29
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Section 3.10.
|
Currency of Payments in Respect of Debt
Securities.
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29
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Section 3.11.
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CUSIP Numbers.
|
29
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|
|
|
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ARTICLE IV. SATISFACTION AND
DISCHARGE
|
29
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|
Section 4.1.
|
Satisfaction and Discharge of
Indenture.
|
29
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Section 4.2.
|
Application of Trust Money, Etc.
|
30
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ARTICLE V. REMEDIES
|
31
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Section 5.1.
|
Events of Default.
|
31
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Section 5.2.
|
Acceleration of Maturity; Rescission and
Annulment.
|
32
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|
Section 5.3.
|
Collection of Indebtedness and Suits for
Enforcement by Trustee.
|
33
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|
Section 5.4.
|
Trustee May File Proofs of Claim.
|
34
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|
Section 5.5.
|
Trustee May Enforce Claims Without Possession of
Debt Securities.
|
35
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|
Section 5.6.
|
Application of Money Collected.
|
35
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|
Section 5.7.
|
Limitation on Suits.
|
36
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|
Section 5.8.
|
Unconditional Right of Holders to
Receive Principal, Premium and Interest.
|
37
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|
Section 5.9.
|
Restoration of Rights and Remedies.
|
37
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|
Section 5.10.
|
Rights and Remedies Cumulative.
|
37
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|
Section 5.11.
|
Delay or Omission Not Waiver.
|
37
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|
Section 5.12.
|
Control By Holders.
|
37
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|
Section 5.13.
|
Waiver of Past Defaults.
|
38
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|
Section 5.14.
|
Undertaking for Costs.
|
38
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|
|
|
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ARTICLE VI. THE TRUSTEE
|
39
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|
Section 6.1.
|
Certain Duties and Responsibilities.
|
39
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|
Section 6.2.
|
Notice of Defaults.
|
40
|
|
Section 6.3.
|
Certain Rights of Trustee.
|
41
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|
Section 6.4.
|
Not Responsible for Recitals or Issuance of Debt
Securities.
|
42
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|
Section 6.5.
|
May Hold Debt Securities.
|
42
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|
Section 6.6.
|
Money Held in Trust.
|
42
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|
Section 6.7.
|
Compensation and Reimbursement.
|
43
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|
Section 6.8.
|
Disqualification; Conflicting
Interests.
|
43
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|
Section 6.9.
|
Corporate Trustee Required;
Eligibility.
|
44
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|
Section 6.10.
|
Resignation and Removal; Appointment of
Successor.
|
44
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|
Section 6.11.
|
Acceptance of Appointment by
Successor.
|
46
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|
Section 6.12.
|
Merger, Conversion, Consolidation or Succession
to Business.
|
47
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|
Section 6.13.
|
Preferential Collection of Claims Against
Company.
|
47
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|
Section 6.14.
|
Appointment of Authenticating Agent.
|
47
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|
|
|
|
ARTICLE VII. HOLDERS’ LISTS
AND REPORTS BY TRUSTEE AND COMPANY
|
49
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|
Section 7.1.
|
Company to Furnish Trustee Names and Addresses
of Holders.
|
49
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|
Section 7.2.
|
Preservation of Information; Communication to
Holders.
|
49
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|
Section 7.3.
|
Reports by Trustee.
|
50
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|
Section 7.4.
|
Reports by Company.
|
50
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|
|
|
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ARTICLE VIII. CONCERNING THE
HOLDERS
|
51
|
|
Section 8.1.
|
Acts of Holders.
|
51
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|
Section 8.2.
|
Proof of Ownership; Proof of Execution of
Instruments by Holder.
|
52
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|
Section 8.3.
|
Persons Deemed Owners.
|
52
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|
Section 8.4.
|
Revocation of Consents; Future Holders
Bound.
|
52
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|
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ARTICLE IX. HOLDERS’
MEETINGS
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53
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Section 9.1.
|
Purposes of Meetings.
|
53
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Section 9.2.
|
Call of Meetings by Trustee.
|
53
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Section 9.3.
|
Call of Meetings by Company or
Holders.
|
53
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Section 9.4.
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Qualifications For Voting.
|
54
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Section 9.5.
|
Regulations.
|
54
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Section 9.6.
|
Voting.
|
54
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ARTICLE X. CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
|
55
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|
Section 10.1.
|
Company May Consolidate, Etc., Only on Certain
Terms.
|
55
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|
Section 10.2.
|
Successor Corporation Substituted.
|
56
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|
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ARTICLE XI. SUPPLEMENTAL
INDENTURES
|
56
|
|
Section 11.1.
|
Supplemental Indentures Without Consent of
Holders.
|
56
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|
Section 11.2.
|
Supplemental Indentures With Consent of
Holders.
|
57
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|
Section 11.3.
|
Execution of Supplemental Indentures.
|
59
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|
Section 11.4.
|
Effect of Supplemental Indentures.
|
59
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|
Section 11.5.
|
Conformity With Trust Indenture Act.
|
59
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Section 11.6.
|
Reference in Debt Securities to Supplemental
Indentures.
|
59
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Section 11.7.
|
Notice of Supplemental Indenture.
|
59
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|
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ARTICLE XII. COVENANTS
|
60
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Section 12.1.
|
Payment of Principal, Premium and
Interest.
|
60
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Section 12.2.
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Officer’s Certificate as to
Default.
|
60
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Section 12.3.
|
Maintenance of Office or Agency.
|
60
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Section 12.4.
|
Money for Debt Securities; Payments to be Held
in Trust.
|
61
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Section 12.5.
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Waiver of Certain Covenants.
|
62
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ARTICLE XIII. REDEMPTION OF DEBT
SECURITIES
|
62
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Section 13.1.
|
Applicability of Article.
|
62
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Section 13.2.
|
Election to Redeem; Notice to
Trustee.
|
62
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|
Section 13.3.
|
Selection by Trustee of Debt Securities to be
Redeemed.
|
63
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|
Section 13.4.
|
Notice of Redemption.
|
63
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|
Section 13.5.
|
Deposit of Redemption Price.
|
64
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|
Section 13.6.
|
Debt Securities Payable on Redemption
Date.
|
64
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Section 13.7.
|
Debt Securities Redeemed in Part.
|
65
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|
Section 13.8.
|
Conversion Arrangement in Call for
Redemption.
|
65
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ARTICLE XIV. SINKING
FUNDS
|
66
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|
Section 14.1.
|
Applicability of Articles.
|
66
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Section 14.2.
|
Satisfaction of Mandatory Sinking
Fund Payments with Debt Securities.
|
66
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Section 14.3.
|
Redemption of Debt Securities for Sinking
Fund.
|
66
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ARTICLE XV. DEFEASANCE
|
68
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Section 15.1.
|
Applicability of Article.
|
68
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|
Section 15.2.
|
Defeasance Upon Deposit of Moneys or
U.S. Government Obligations.
|
68
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|
Section 15.3.
|
Deposited Moneys and U.S. Government
Obligations to be Held in Trust.
|
71
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|
Section 15.4.
|
Repayment to Company.
|
71
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|
|
|
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ARTICLE XVI. CONVERSION
|
71
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|
Section 16.1.
|
Applicability; Conversion Privilege.
|
71
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|
Section 16.2.
|
Conversion Procedure; Conversion Price;
Fractional Shares.
|
72
|
|
Section 16.3.
|
Adjustment of Conversion Price for Common
Stock.
|
73
|
|
Section 16.4.
|
Consolidation or Merger of the
Company.
|
76
|
|
Section 16.5.
|
Notice of Adjustment.
|
76
|
|
Section 16.6.
|
Notice in Certain Events.
|
77
|
|
Section 16.7.
|
Company to Reserve Stock; Registration;
Listing.
|
78
|
|
Section 16.8.
|
Taxes on Conversion.
|
78
|
|
Section 16.9.
|
Conversion After Record Date.
|
78
|
|
Section 16.10.
|
Conversion of Debt Securities into
Preferred Shares or other Securities.
|
79
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|
Section 16.11.
|
Company Determination Final.
|
79
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|
Section 16.12.
|
Trustee’s Disclaimer.
|
79
|
|
|
|
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ARTICLE XVII. GUARANTEES
|
79
|
|
Section 17.1.
|
Applicability of Article.
|
79
|
|
Section 17.2.
|
Guarantee.
|
79
|
|
Section 17.3.
|
Execution And Delivery Of Guarantee.
|
81
|
|
Section 17.4.
|
Limitation on Guarantor Liability.
|
81
|
|
Section 17.5.
|
Guarantors May Consolidate, etc., on Certain
Terms.
|
82
|
|
Section 17.6.
|
Releases.
|
82
|
|
|
|
|
ARTICLE XVIII. SECURITY
|
83
|
|
Section 18.1.
|
Applicability of Article.
|
83
|
|
Section 18.2.
|
Security.
|
83
|
|
Section 18.3.
|
Collateral Agent and Security
Agreements.
|
83
|
|
Section 18.4.
|
Recording, Opinions and Certificates
|
84
|
|
Section 18.5.
|
Release of Collateral.
|
84
|
|
Section 18.6.
|
Certificates of the Company.
|
85
|
|
Section 18.7.
|
Certificates of the Trustee.
|
85
|
|
Section 18.8.
|
Authorization of Actions to Be Taken
by the Trustee Under the Security Documents.
|
85
|
|
Section 18.9.
|
Authorization of Receipt of Funds by
the Trustee Under the Security Documents.
|
86
|
|
Section 18.10.
|
Termination of Security Interest.
|
86
|
|
Section 18.11.
|
Counterparts; Signatures.
|
86
|
|
|
|
|
ARTICLE XIX. RULE 144A/REGULATION S
OFFERINGS
|
86
|
|
Section 19.1.
|
Applicability of Article.
|
86
|
|
Section 19.2.
|
Definitions.
|
86
|
|
Section 19.3.
|
Operative Provisions.
|
90
|
SENIOR SECURED INDENTURE dated as of
August 14, 2009, among Ralcorp Holdings, Inc., a Missouri
corporation (hereinafter called the “Company”), having
its principal executive office at 800 Market Street, Suite 2900,
St. Louis, MO 63101, the Guarantors (as defined below) and Deutsche
Bank Trust Company Americas, a New York banking corporation
(hereinafter called the “Trustee”), having its
principal corporate trust office at 60 Wall Street, New York, New
York 10005.
RECITALS OF THE
COMPANY
The Company has duly authorized the
execution and delivery of this Indenture to provide for the
issuance from time to time of its secured debentures, notes, bonds
or other evidences of indebtedness (herein generally called the
“Debt Securities”), to be issued in one or more series,
as in this Indenture provided.
The initial Guarantors have duly
authorized the execution and delivery of this Indenture to provide
for a guarantee of the Debt Securities and of certain of the
Company’s obligations.
All things necessary have been done
to make this Indenture a valid agreement of the Company and the
Guarantors, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of the
premises and the purchase of Debt Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE I.
DEFINITIONS AND OTHER
PROVISIONS
OF GENERAL
APPLICATION
|
Section 1.1.
|
Definitions.
|
For all purposes of this Indenture,
except as otherwise expressly provided or unless the context
otherwise requires:
(1) the
terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the
singular;
(2) all
other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all
accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles or as provided with respect to any series of Debt
Securities, and, except as otherwise herein provided or as provided
with respect to any series of Debt Securities, the term
“generally accepted accounting principles” or
“GAAP”, with
respect to any computation required
or permitted hereunder with respect to any series of Debt
Securities, shall mean generally accepted accounting principles as
are set forth in the statements and pronouncements of the Financial
Accounting Standards Board and in opinions of the Accounting
Principles Board of the American Institute of Certified Public
Accountants or in such other statements by such other entity as
have been approved by a significant segment of the accounting
profession or which have other substantial authoritative support in
the United States and are applicable in the circumstances, in each
case, as applied on a consistent basis, which are in effect as of
the issuance date of such series of Debt Securities; and
(4) the
words “herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or other subdivision.
Certain terms, used principally in
Article III or Article VI, are defined in those respective
Articles.
“Act” when used with
respect to any Holder, has the meaning specified in Section
8.1.
“Affiliate” of any
specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this
definition, “control” as used with respect to any
Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise. For purposes of this
definition, the terms “controlling,” “controlled
by” and “under common control with” shall have
correlative meanings.
“Authenticating Agent”
has the meaning specified in Section 6.14.
“Board of Directors”
means either the board of directors of the Company or any
Guarantor, as applicable, or any committee of that board duly
authorized to act hereunder or any director or directors and/or
officer or officers of the Company or any Guarantor to whom that
board or committee shall have delegated its authority.
“Board Resolution” means
a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company or any Guarantor, as applicable, to have
been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the
Trustee. Where any provision of this Indenture refers to action to
be taken pursuant to a Board Resolution (including the
establishment of any series of the Debt Securities and the forms
and terms thereof) such action may be taken by any committee,
officer or employee of the Company or any Guarantor, as applicable,
authorized to take such action by a Board Resolution.
“Business Day” when used
with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Debt Securities
means any day
which is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust
companies in that Place of Payment or other location are authorized
or obligated by law or regulation to close, except as otherwise
specified pursuant to Section 3.1.
“Closing Price” of the
Common Stock for any Trading Day means (i) if the Common Stock is
then listed or admitted for trading on any national securities
exchange, the last sale price, or the closing bid price if no sale
occurred, of the Common Stock on such Trading Day on the principal
securities exchange on which the Common Stock is listed, (ii) if
the Common Stock is not listed or admitted for trading as described
in clause (i), the last reported sale price of the Common Stock on
such Trading Day in the NASDAQ National Market, or any similar
system of automated dissemination of quotations of securities
prices then in common use, if so quoted, or (iii) if not listed or
quoted as described in clause (i) or (ii), the mean between the
high bid and low asked quotations on such Trading Day for the
Common Stock as reported by the National Quotation Bureau
Incorporated if at least two securities dealers have inserted both
bid and asked quotations for the Common Stock on at least five of
the ten preceding Trading Days. If none of the conditions set forth
above is met, the last reported sale price of the Common Stock on
any Trading Day or the average of such last reported sale prices
for any period shall be the fair market value of the Common Stock
as determined by a member firm of the New York Stock Exchange
selected by the Company.
“Co-Collateral Agent”
has the meaning set forth in Section 18.3.
“Code” means the
Internal Revenue Code of 1986, as amended.
“Collateral” means all
collateral of whatsoever nature purported to be subject to the
Pledge Agreement.
“Collateral Agent” means
JPMorgan Chase Bank, N.A., in its capacity as Collateral Agent
under the Security Agreements, together with its successors in such
capacity.
“Commission” means the
Securities and Exchange Commission, as from time to time
constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution of this instrument
such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
“Common Stock” means the
class of Common Stock, par value $.01 per share, of the Company
authorized at the date of this Indenture as originally signed, or
any other class of stock resulting from successive changes or
reclassifications of such Common Stock, and in any such case
including any shares thereof authorized after the date of this
Indenture, and any other shares of stock of the Company which do
not have any priority as to the payment of dividends or upon
liquidation over any other class of stock.
“Company” means the
Person named as the “Company” in the first paragraph of
this instrument until a successor Person shall have become such
pursuant to the
applicable provisions of this
Indenture, and thereafter “Company” shall mean such
successor Person.
“Company Request” and
“Company Order” mean, respectively, a written request
or order signed in the name of the Company by the Chairman of the
Board, a Vice Chairman, the Chief Executive Officer, the President,
the Chief Financial Officer, the Chief Operating Officer or a Vice
President and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee. The officers signing a Company Request or Company
Order may be the same Person.
“Conversion Agent” means
any Person authorized by the Company to receive Debt Securities to
be converted into Common Stock on behalf of the Company. The
Company initially authorizes the Trustee to act as Conversion Agent
for the Debt Securities on its behalf. The Company may at any time
from time to time authorize one or more Persons to act as
Conversion Agent in addition to or in place of the Trustee with
respect to any series of Debt Securities issued under this
Indenture.
“Conversion Price”
means, with respect to any series of Debt Securities which are
convertible into Common Stock, the price per share of Common Stock
at which the Debt Securities of such series are so convertible
pursuant to Section 3.1 with respect to such series, as the same
may be adjusted from time to time in accordance with Section
16.3.
“Corporate Trust Office”
means the corporate trust office of the Trustee at which at any
particular time its corporate trust business shall be principally
administered, which office at the date of execution of this
instrument is located at: Deutsche Bank Trust Company Americas, 60
Wall Street, 27th Floor, MS: NYC60-2710, New York, New York 10005,
Attention: Trust and Securities Services, with a copy to Deutsche
Bank National Trust Company for Deutsche Bank Trust Company
Americas, 25 DeForest Avenue, Mail Stop: SUM0100105, Summit, New
Jersey 07901.
“Corporation” means
corporations, associations, limited liability companies, limited
partnerships, business trusts and other legal entities.
“Credit Agreement” means
that certain $400,000,000 Credit Agreement dated as of July 18,
2008 among the Company, as borrower, the lenders party thereto,
JPMorgan Chase Bank, N.A., as administrative agent, swingline
lender and issuing bank, Suntrust Bank, as syndication agent, Bank
of America, N.A., and Deutsche Bank AG New York Branch, as
documentation agents, and The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
Wachovia Bank, National Association and Wells Fargo Bank, N.A., as
managing agents, including any related notes, guarantees,
collateral documents, letters of credit, instruments and agreements
executed in connection therewith (and any appendices, annexes,
exhibits or schedules to any of the foregoing), and in each case as
amended, restated, amended and restated, modified, supplemented,
renewed, refunded, replaced, restructured, repaid or refinanced
from time to time (whether with the original agents, arrangers and
lenders or other agents, arrangers and lenders or otherwise,
whether provided under the original credit agreement or other
credit facilities or otherwise,
whether for a greater or lesser
principal amount, whether with greater or lesser interest and fees
and whether or not including collateral or guarantors).
“Current Market Price”
on any date means the average of the daily Closing Prices per share
of Common Stock for any thirty (30) consecutive Trading Days
selected by the Company prior to the date in question, which thirty
(30) consecutive Trading Day period shall not commence more than
forty-five (45) Trading Days prior to the day in question; provided
that with respect to Section 16.3(3), the “Current Market
Price” of the Common Stock shall mean the average of the
daily Closing Prices per share of Common Stock for the five (5)
consecutive Trading Days ending on the date of the distribution
referred to in Section 16.3(3) (or if such date shall not be a
Trading Day, on the Trading Day immediately preceding such
date).
“Debt Securities” has
the meaning stated in the first recital of this Indenture and more
particularly means any Debt Securities (including any Global Notes)
authenticated and delivered under this Indenture.
“Defaulted Interest” has
the meaning specified in Section 3.7.
“Depositary” means a
clearing agency registered under the Securities Exchange Act of
1934, as amended, or any successor thereto, which shall in either
case be designated as such by the Company pursuant to Section 3.1
until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
“Depositary” shall mean or include each Person who is
then a Depositary hereunder, and if at any time there is more than
one such Person, “Depositary” as used with respect to
the Debt Securities of any series shall mean the Depositary with
respect to the Debt Securities of that series.
“Discharged” has the
meaning specified in Section 15.2.
“Discount Security”
means any Debt Security which is issued with “original issue
discount” within the meaning of Section 1273(a) of the Code
(or any successor provision) and the regulations
thereunder.
“Dollar” or
“$” means a dollar or other equivalent unit 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.
“EDGAR” means the
Commission’s Electronic Data Gathering, Analysis and
Retrieval system, or any successor system established by the
Commission for the dissemination of data to investors.
“Event of Default” has
the meaning specified in Section 5.1.
“Floating Rate Security”
means a Debt Security which provides for the payment of interest at
a variable rate determined periodically by reference to an interest
rate index or any other index specified pursuant to Section
3.1.
“Global Note” means a
Debt Security evidencing all or part of a series of Debt
Securities.
“Guarantee” has the
meaning specified in Section 17.2.
“Guarantor” has the
meaning specified in Section 3.1.
“Holder” means the
Person in whose name a Debt Security is registered in the Security
Register.
“Indenture” means this
instrument as originally executed, or as it may from time to time
be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof
and, unless the context otherwise requires, shall include the terms
of a particular series of Debt Securities as established pursuant
to Section 3.1.
“Interest” or
“interest,” (i) when used with respect to a Discount
Security which by its terms bears interest only from a certain
date, means interest payable after such date and (ii) when used in
respect of Debt Securities of a series subject to Article XIX
means, unless the context otherwise requires, interest and
Additional Interest, if any (as defined in Article XIX).
“Interest Payment Date”
with respect to any Debt Security means the Stated Maturity of an
installment of interest on such Debt Security.
“Maturity” when used
with respect to any Debt Security means the date on which the
principal of such a Debt Security or an installment of principal
becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for
redemption, repayment or repurchase at the option of the Holder
thereof or otherwise.
“Notice of Default” has
the meaning specified in Section 5.1(4).
“Obligations” has the
meaning set forth in Section 18.2.
“Officers’
Certificate” means a certificate signed by the Chairman of
the Board, a Vice Chairman, the Chief Executive Officer, the
President, the Chief Financial Officer, the Chief Operating
Officer, a Senior Vice President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee. The
officers signing an Officers’ Certificate may be the same
Person.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel to the
Company (including an employee of the Company) and who shall be
reasonably satisfactory to the Trustee, provided that the General
Counsel or other legal officer of the Company shall never be deemed
unacceptable to the Trustee, which is delivered to the Trustee,
which opinion may be subject to standard qualifications and
exceptions.
“Outstanding” when used
with respect to Debt Securities means, as of the date of
determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt
Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Debt
Securities for whose redemption money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated and
held in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Debt Securities; provided,
however, that if such Debt Securities are to be redeemed prior to
their Stated Maturity, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) Debt
Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt
Securities are held by a bona fide purchaser in whose hands such
Debt Securities are valid obligations of the Company;
provided, however, that, in
determining whether the Holders of the requisite principal amount
of Debt Securities Outstanding have performed any Act hereunder,
Debt Securities owned by the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding
(provided that, in connection with any offer by the Company or any
obligor to purchase Debt Securities, Debt Securities tendered by a
Holder shall be deemed to be Outstanding until the date of
purchase), except that, (i) in determining whether the Trustee
shall be protected in conclusively relying upon any such Act, only
Debt Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded and (ii) the
foregoing shall not apply at any time when all of the Outstanding
Debt Securities are owned by the Company, the Trustee and/or any
such Affiliate. Debt Securities 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 to act with respect to such Debt Securities and that the
pledgee is not the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other
obligor. In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have performed any
Act hereunder, the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purpose shall be the
amount of the principal thereof that would be due and payable as of
the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.2.
“Overdue Rate” when used
with respect to any series of Debt Securities means the rate
designated as such in that series of Debt Securities or pursuant to
the Board
Resolution or the supplemental
indenture, as the case may be, relating to such series as
contemplated by Section 3.1.
“Paying Agent” means any
Person authorized by the Company to pay the principal of (and
premium, if any) or interest on any Debt Securities on behalf of
the Company.
“Person” means any
individual, corporation, partnership, joint venture, association,
joint-stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof or any
other entity.
“Place of Payment” when
used with respect to the Debt Securities of any series means the
place or places where the principal of (and premium, if any) and
interest on the Debt Securities of that series are payable as
specified pursuant to Section 3.1.
“Pledge Agreement” means
(a) the Pledge Agreement dated as of July 18, 2008 made by the
Company and the other pledgors party thereto in favor of JPMorgan
Chase Bank, N.A., as collateral agent, and (b) any other pledge or
security agreement entered into by the Company or a Subsidiary in
favor of the Trustee for the benefit of the Holders of Debt
Securities of the applicable series, in each case as the same may
be amended, restated, amended and restated, modified or
supplemented from time to time.
“Predecessor Security”
of any particular Debt Security means every previous Debt Security
evidencing all or a portion of the same debt as that evidenced by
such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under
Section 3.6 in lieu of a mutilated, lost, destroyed or stolen Debt
Security shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Debt Security.
“Preferred Stock” means
any shares of capital stock issued by the Company that are entitled
to a preference or priority over Common Stock upon any distribution
of the Company’s assets, whether by dividend or upon
liquidation.
“Redemption Date” means
the date fixed for redemption of any Debt Security pursuant to this
Indenture which, in the case of a Floating Rate Security, unless
otherwise specified pursuant to Section 3.1, shall be an Interest
Payment Date only.
“Redemption Price”
means, unless otherwise specified pursuant to Section 3.1, in the
case of a Discount Security, the amount of the principal thereof
that would be due and payable as of the Redemption Date upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, and in the case of any other Debt Security, the
principal amount thereof, plus, in each case, premium, if any, and
accrued and unpaid interest, if any, to the Redemption
Date.
“Regular Record Date”
for the interest payable on the Debt Securities of any series on
any Interest Payment Date means the date specified for that purpose
pursuant to Section 3.1 for such Interest Payment Date.
“Responsible Officer”
when used with respect to the Trustee means any managing director,
director, vice president, any trust officer, or any assistant vice
president or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers 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.
“Security Agreements”
means the Pledge Agreement and all other security agreements,
pledge agreements, collateral assignments, mortgages, deeds of
trust, collateral agency agreements, control agreements or other
grants or transfers for security with respect to the applicable
series of Debt Securities executed and delivered by the Company
creating (or purporting to create) a Lien upon Collateral in favor
of the Collateral Agent, in each case, as amended, modified,
renewed, restated or replaced, in whole or in part, from time to
time.
“Security Register” and
“Security Registrar” have the respective meanings
specified in Section 3.5(a).
“Special Record Date”
for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.7.
“Stated Maturity” when
used with respect to any Debt Security or any installment of
principal thereof or premium thereon or interest thereon means the
date specified in such Debt Security as the date on which the
principal of such Debt Security or such installment of principal,
premium or interest is due and payable.
“Subsidiary” means, as
to any Person, any corporation, association or other business
entity in which such Person, or one or more of its Subsidiaries, or
such Person and one or more of its Subsidiaries, owns sufficient
equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of
the directors (or Persons performing similar functions) of such
entity, and any partnership or joint venture if more than a 50%
interest in the profits or capital thereof is owned by such Person,
or one or more of its Subsidiaries, or such Person and one or more
of its Subsidiaries (unless such partnership can and does
ordinarily take major business actions without the prior approval
of such Person, or one or more of its Subsidiaries or such Person
and one or more of its Subsidiaries).
“Trading Day” means a
day during which trading in securities generally occurs on the New
York Stock Exchange or, if the applicable security is not traded on
the New York Stock Exchange, on the principal other national or
regional securities exchange or market on which the applicable
security is then listed or traded.
“Trustee” means the
Person named as the “Trustee” in the first paragraph of
this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more
than one such Person,
“Trustee” as used with
respect to the Debt Securities of any series shall mean the Trustee
with respect to Debt Securities of such series.
“Trust Indenture Act” or
“TIA” means the Trust Indenture Act of 1939, as amended
and as in force at the date as of which this instrument was
executed, except as provided in Section 11.5.
“United States” means
the United States of America (including the States and the District
of Columbia), and its possessions, which include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
“U.S. Government
Obligations” has the meaning specified in Section
15.2.
“U.S. Person” means a
citizen or resident of the United States, a corporation,
partnership, limited liability company or other entity created or
organized in or under the laws of the United States, or an estate
or trust the income of which is subject to United States Federal
income taxation regardless of its source.
“Vice President”
includes, with respect to the Company, any Guarantor or the
Trustee, any Vice President of the Company, such Guarantor or the
Trustee, as the case may be, whether or not designated by a number
or word or words added before or after the title “Vice
President.”
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Section 1.2.
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Compliance Certificates and
Opinions.
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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 all such conditions precedent,
if any, have been complied with, except that in the case of any
such application or request as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with
respect to compliance with a condition or covenant provided for in
this Indenture (other than certificates provided pursuant to
Section 12.2) shall include:
(1) a
statement that each individual signing such certificate or opinion
has read such covenant or condition 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 covenant or condition 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.
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Section 1.3.
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Form of Documents Delivered to
Trustee.
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In any case where several matters
are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person,
or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an
officer of the Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such
officer’s certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
Where any Person is required to
make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument. All applications, requests, consents, certificates,
statements, opinions or other instruments given under this
Indenture shall be without personal recourse to any individual
giving the same and may include an express statement to such
effect.
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Section 1.4.
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Notices, Etc., to Trustee, Guarantors and
Company.
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Any 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 or any Guarantor shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing
(including telecopy) to or with the Trustee at its Corporate Trust
Office, Attention: Trust and Securities Services; or
(2) the
Company or any Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing (including telecopy) or mailed,
first-class postage prepaid or airmail postage prepaid if sent from
outside the United States, to the Company
addressed to it at the address of
its principal office specified in the first paragraph of this
instrument, to the attention of its Treasurer, or at any other
address previously furnished in writing to the Trustee by the
Company.
Any such Act or other document shall
be in the English language, except that any published notice may be
in an official language of the country of publication.
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Section 1.5.
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Notice to Holders; Waiver.
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When this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently
given to Holders (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to such Holders as
their names and addresses appear in the Security Register, within
the time prescribed.
In the event of suspension of
regular mail service or by reason of any other cause it shall be
impracticable to give notice to Holders of Debt Securities by mail,
such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose
hereunder.
Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of
any action taken in reliance on such waiver. In any case where
notice to Holders is given by mail, neither the failure to mail
such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been
duly given. In any case where notice to Holders is given by
publication, any defect in any notice so published as to any
particular Holder shall not affect the sufficiency of such notice
with respect to other Holders, and any notice which is published in
the manner herein provided shall be conclusively presumed to have
been duly given.
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Section 1.6.
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Conflict With Trust Indenture
Act.
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This Indenture is subject to, and
shall be governed by, the provisions of the Trust Indenture Act. If
any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317,
inclusive, of the Trust Indenture Act, the duties imposed by the
Trust Indenture Act shall control. If any provision hereof limits,
qualifies or conflicts with any provision of the Trust Indenture
Act which is automatically deemed to be included in this Indenture
by any of the provisions of the Trust Indenture Act, such provision
of the Trust Indenture Act shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture
Act which may be so modified or excluded, the former provision
shall be deemed to apply to this Indenture as so modified or
excluded.
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Section 1.7.
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Effect of Headings and Table of
Contents.
|
The Article and Section headings
herein and in the Table of Contents are for convenience only and
shall not affect the construction hereof.
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Section 1.8.
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Successors and Assigns.
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The Company shall have the right at
all times to assign any of its respective rights or obligations
under the Indenture to a direct or indirect wholly owned Subsidiary
of the Company, provided that, in the event of any such assignment,
the Company shall remain primarily liable for such obligations. All
covenants and agreements in this Indenture by the parties hereto
shall bind their respective successors and assigns and inure to the
benefit of their permitted successors and assigns, whether so
expressed or not.
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Section 1.9.
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Separability Clause.
|
In case any provision in this
Indenture or in the Debt Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
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Section 1.10.
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Benefits of Indenture.
|
Nothing in this Indenture or in the
Debt Securities, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying
Agent and their successors hereunder, and the Holders, any benefit
or any legal or equitable right, remedy or claim under this
Indenture.
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Section 1.11.
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Governing Law.
|
This Indenture, and the Debt
Securities shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to its
principles of conflicts of law.
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Section 1.12.
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Legal Holidays.
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Unless otherwise specified pursuant
to Section 3.1 or in any Debt Security, in any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any
Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the
Debt Securities) payment of principal (and premium, if any) or
interest 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 or at the Stated Maturity,
and no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be, to such Business Day if
such payment is made or duly provided for on such Business Day
(unless otherwise specified).
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Section 1.13.
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Liability Solely Corporate.
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No recourse shall be had for the
payment of the principal of (or premium, if any) or the interest on
any Debt Securities or the Guarantees, if any, or any part thereof,
or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator,
or against any shareholder, officer or director, as such, past,
present or future, of the Company or any Guarantor (or any
incorporator, shareholder, officer or
director of any predecessor or
successor corporation), either directly or through the Company or
any Guarantor (or any such predecessor or successor corporation),
whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and all
the Debt Securities and Guarantees, if any, are solely corporate
obligations, and that no personal liability whatsoever shall attach
to, or be incurred by, any such incorporator, shareholder, officer
or director, past, present or future, of the Company or any
Guarantor (or any incorporator, shareholder, officer or director of
any such predecessor or successor corporation), either directly or
indirectly through the Company, any Guarantor or any such
predecessor or successor corporation, because of the indebtedness
hereby authorized or under or by reason of any of the obligations,
covenants, promises or agreements contained in this Indenture or in
any of the Debt Securities or the Guarantees, if any, or to be
implied herefrom or therefrom; and that any such personal liability
is hereby expressly waived and released as a condition of, and as
part of the consideration for, the execution of this Indenture and
the issue of Debt Securities; provided, however, that nothing
herein or in the Debt Securities or the Guarantees, if any,
contained shall be taken to prevent recourse to and the enforcement
of the liability, if any, of any shareholder or subscriber to
capital stock upon or in respect of the shares of capital stock not
fully paid.
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Section 1.14.
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Waiver of Jury Trial.
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EACH OF THE COMPANY, THE GUARANTORS
AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE,
THE DEBT SECURITIES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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Section 1.15.
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Consent to Jurisdiction and
Service.
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To the fullest extent permitted by
applicable law, the Company hereby irrevocably submits to the
jurisdiction of any Federal or State court located in the Borough
of Manhattan in The City of New York, New York in any suit, action
or proceeding based on or arising out of or relating to this
Indenture or any Debt Securities and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in
any such court. The Company irrevocably waives, to the fullest
extent permitted by law, any objection which it may have to the
laying of the venue of any such suit, action or proceeding brought
in an inconvenient forum. The Company agrees that final judgment in
any such suit, action or proceeding brought in such a court shall
be conclusive and binding upon the Company, and may be enforced in
any courts to the jurisdiction of which the Company is subject by a
suit upon such judgment, provided, that service of process is
effected upon the Company in any manner permitted by law. To the
extent the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment
in aid of execution, executor or otherwise) with respect to itself
or its property, the Company hereby irrevocably waives such
immunity in respect of its obligations under this Indenture to the
extent permitted by law.
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Section 1.16.
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Force Majeure.
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In no event shall the Trustee be
responsible or liable for any failure or delay in the performance
of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in
the banking industry to resume performance as soon as practicable
under the circumstances.
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Section 1.17.
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U.S.A. Patriot Act.
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The parties hereto acknowledge that
in accordance with Section 326 of the U.S.A. Patriot Act, the
Trustee, like all financial institutions and in order to help fight
the funding of terrorism and money laundering, is required to
obtain, verify, and record information that identifies each person
or legal entity that establishes a relationship or opens an account
with the Trustee. The parties to this Indenture agree that they
will provide the Trustee with such information as it may request in
order for the Trustee to satisfy the requirements of the U.S.A.
Patriot Act.
ARTICLE II.
DEBT SECURITY
FORMS
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Section 2.1.
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Forms Generally.
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The Debt Securities of each series
shall be substantially in one of the forms (including global form)
established in or pursuant to a Board Resolution or one or more
indentures supplemental hereto, and shall have such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange, or to conform to usage, all
as determined by the officers executing such Debt Securities as
conclusively evidenced by their execution of such Debt Securities.
If the form of Debt Securities (or any Global Note) of a series is
established in or pursuant to a Board Resolution, a copy of such
Board Resolution shall be delivered to the Trustee, together with
an Officers’ Certificate setting forth the form of such Debt
Securities or Global Notes, at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the authentication
and delivery of such Debt Securities (or any such Global
Note).
The definitive Debt Securities of
each series may be printed, lithographed or engraved or produced by
any combination of these methods on steel engraved borders or in
any other manner, all as determined by the officers executing such
Debt Securities, as conclusively evidenced by their execution of
such Debt Securities.
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Section 2.2.
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Form of Trustee’s Certificate of
Authentication.
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The form of the Trustee’s
certificate of authentication to be borne by the Debt Securities
shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
This is one of the Debt Securities
of the series designated therein and referred to in the
within-mentioned Indenture.
Deutsche Bank Trust Company
Americas,
as Trustee
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|
By:_______________________________________
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Section 2.3.
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Securities in Global Form.
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If any Debt Security of a series is
issuable in global form (a “Global Note”), such Global
Note may provide that it shall represent the aggregate amount of
Outstanding Debt Securities from time to time endorsed thereon and
may also provide that the aggregate amount of Outstanding Debt
Securities represented thereby may from time to time be reduced or
increased to reflect exchanges. Any endorsement of a Global Note to
reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Debt Securities
represented thereby shall be made by the Trustee and in such manner
as shall be specified in such Global Note. Any instructions by the
Company with respect to endorsement or delivery or redelivery of a
Global Note, after its initial issuance, shall be in writing but
need not comply with Section 1.2 and need not be accompanied by an
Opinion of Counsel.
ARTICLE III.
THE DEBT
SECURITIES
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Section 3.1.
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Amount Unlimited; Issuable in
Series.
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The aggregate principal amount of
Debt Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Debt Securities may be issued in
one or more series. There shall be established in or pursuant to a
Board Resolution and (subject to Section 3.3) set forth or
determined in the manner provided in an Officers’
Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Debt Securities of any series, to
the extent applicable:
(1) the
title of the Debt Securities of the series (which shall distinguish
the Debt Securities of such series from all other series of Debt
Securities);
(2) the
aggregate principal amount of such series of Debt Securities and
any limit on the aggregate principal amount of the Debt Securities
of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of such series pursuant to Sections 3.4,
3.5, 3.6, 11.6 or 13.7);
(3) the
percentage of the principal amount at which the Debt Securities of
such series will be issued and, if other than the principal amount
thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity or upon redemption
thereof or the method by which such portion shall be
determined;
(4) the
date or dates on which or periods during which the Debt Securities
of the series may be issued, and the date or dates or the method by
which such date or dates will be determined, and on which the
principal, or any installments of principal of (and premium, if
any, on) the Debt Securities of such series are or may be payable
(which, if so provided in or pursuant to such Board Resolution or
supplemental indenture, may be determined by the Company from time
to time as set forth in the Debt Securities of the series issued
from time to time);
(5) the
rate or rates (which may be variable or fixed) at which the Debt
Securities of the series shall bear interest, if any, or the method
by which such rate or rates shall be determined, the date or dates
from which such interest, if any, shall accrue or the method by
which such date or dates shall be determined (which, in either case
or both, if so provided in or pursuant to such Board Resolution or
supplemental indenture, may be determined by the Company from time
to time and set forth in the Debt Securities of the series issued
from time to time); and the Interest Payment Dates on which such
interest shall be payable (or the method of determination thereof),
if any, the Regular Record Date for any interest payable on any
registered Debt Securities on any Interest Payment Date, the Person
to whom any interest on any registered Debt Security of the series
shall be payable, if other than the Person in whose name that Debt
Security (or one or more Predecessor Debt Securities) is registered
at the close of business on the Regular Record Date for such
interest.
(6) the
place or places, if any, in addition to or instead of the Corporate
Trust Office of the Trustee (in the case of Debt Securities) where
the principal of (and premium, if any) and interest on Debt
Securities of the series shall be payable; the extent to which, or
the manner in which, any interest payable on any Global Note on an
Interest Payment Date will be paid, if other than in the manner
provided in Section 3.7; and the manner in which any principal of,
or premium, if any, on, any Global Note will be paid, if other than
as set forth elsewhere herein and whether any Global Note will
require any notation to evidence payment of principal or
interest;
(7) the
obligation, if any, of the Company to redeem, repay, purchase or
offer to purchase Debt Securities of the series pursuant to any
mandatory redemption, sinking fund or analogous provisions or upon
other conditions or at the option of the Holder thereof and the
period or periods within which or the dates on which, the prices at
which and the terms and conditions upon which the Debt Securities
of the series shall be redeemed, repaid, purchased or offered to be
purchased, in whole or in part, pursuant to such
obligation;
(8) the
right, if any, of the Company to redeem the Debt Securities of such
series at its option and the period or periods within which, or the
date or dates on which, the price or prices at which, and the terms
and conditions upon which such Debt Securities may be redeemed, if
any, in whole or in part, at the option of the Company or
otherwise;
(9) the
denominations of the Debt Securities if other than denominations of
$1,000 and any integral multiple thereof (except as provided in
Section 3.4);
(10) whether the
Debt Securities of the series are to be issued as Discount
Securities and the amount of discount with which such Debt
Securities may be issued and, if other than the principal amount
thereof, the portion of the principal amount of Debt Securities of
the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.2;
(11) the extent to
which provisions, if any, for the defeasance or discharge of the
Debt Securities of such series or of certain of the Company’s
obligations with respect to such Debt Securities set forth herein
shall be inapplicable and any provisions in modification of, in
addition to or in lieu of such provisions;
(12) whether
provisions for payment of additional amounts or tax redemptions
shall apply and, if such provisions shall apply, such
provisions;
(13) the date as of
which any Debt Securities of the series shall be dated, if other
than as set forth in Section 3.3;
(14) the Overdue
Rate, if any;
(15) if
the Debt Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.1;
(16) any addition
to, or modification or deletion of, any Events of Default or
covenants provided for with respect to Debt Securities of the
series;
(17) whether the
Debt Securities of the series shall be issued in whole or in part
in the form of one or more Global Notes and, in such case, the
Depositary for such Global Note or Notes; and the manner in which
and the circumstances under which Global Notes representing Debt
Securities of the
series may be exchanged for Debt
Securities in definitive form, if other than, or in addition to,
the manner and circumstances specified in Section
3.4(b);
(18) the
designation, if any, of any depositaries, trustees (if other than
the applicable Trustee), Paying Agents, Authenticating Agents,
Security Registrars (if other than the Trustee) or other agents
with respect to the Debt Securities of such series;
(19) if
the Debt Securities of such series will be issuable in definitive
form only upon receipt of certain certificates or other documents
or upon satisfaction of certain conditions, the form and terms of
such certificates, documents or conditions;
(20) whether the
Debt Securities of such series will be convertible into shares of
Common Stock, Preferred Stock or into other securities or other
property (whether or not issued by, or the obligation of, the
Company) and, if so, the terms and conditions, which may be in
addition to or in lieu of the provisions contained in this
Indenture, upon which such Debt Securities will be so convertible,
including the conversion price and the conversion period, including
provisions for adjustments thereto;
(21) the portion of
the principal amount of the Debt Securities of such series that
will be payable upon declaration of acceleration of the maturity
thereof, if other than the principal amount thereof;
(22) which, if any,
of the Company’s Subsidiaries shall guarantee the Debt
Securities on the terms set forth in Article XVII (each entity that
guarantees the Debt Securities set forth in Article XVII, if any, a
“Guarantor”) and any provisions in modification of, in
addition to or in lieu of such provisions of Article XVII with
respect to the Debt Securities of such series;
(23) the ranking of
the obligations of each Guarantor under its respective Guarantee,
if other than on parity with all other unsubordinated indebtedness
of such Guarantor;
(24) whether the
Debt Securities of such series will be secured by the Collateral on
the terms set forth in Article XVIII and any provisions in
modification of, in addition to or in lieu of such provisions of
Article XVIII with respect to the Debt Securities of such
series;
(25) whether the
provisions of Article XIX will apply to the Debt Securities of such
series, and any provisions in modification of, in addition to or in
lieu of such provisions of Article XIX with respect to the Debt
Securities of such series;
(26) if
other than as provided for herein, the nature, content and date for
reports by the Company to the holders of the Debt Securities of
such series;
(27) the terms, if
any, of any repurchase or remarketing rights; and
(28) any other
terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture).
All Debt Securities of any one
series shall be substantially identical except as to denomination,
rate of interest, Stated Maturity and the date from which interest,
if any, shall accrue, which, as set forth above, may be determined
by the Company from time to time as to Debt Securities of a series
if so provided in or established pursuant to the authority granted
in or pursuant to a Board Resolution or in any such indenture
supplemental hereto, and except as may otherwise be provided in or
pursuant to such Board Resolution and (subject to Section 3.3) set
forth in such Officers’ Certificate, or in any such indenture
supplemental hereto. All Debt Securities of any one series need not
be issued at the same time, and unless otherwise provided, a series
may be reopened without the consent of the Holders, for issuance of
additional Debt Securities of such series or to establish
additional terms of such series of Debt Securities, which
additional terms shall only be applicable to unissued or additional
Debt Securities of such series.
If any of the terms of a series of
Debt Securities is established in or pursuant to a Board
Resolution, a copy of such Board Resolution shall be certified by
the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate setting forth the terms of the
series.
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Section 3.2.
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Denominations.
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In the absence of any specification
pursuant to Section 3.1 with respect to the Debt Securities of any
series, the Debt Securities of such series shall be issuable only
as Debt Securities in denominations of $1,000 and any integral
multiple thereof and shall be payable only in Dollars.
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Section 3.3.
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Execution, Authentication, Delivery and
Dating.
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The Debt Securities of any series
shall be executed on behalf of the Company by its Chairman of the
Board, a Vice Chairman, its Chief Executive Officer, its Chief
Financial Officer, its Chief Operating Officer, its President, one
of its Vice Presidents or its Treasurer. The signature of any of
these officers may be manual or facsimile.
Debt Securities bearing the manual
or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Debt Securities or did not hold such offices at the date of such
Debt Securities.
At any time and from time to time
after the execution and delivery of this Indenture, the Company may
deliver Debt Securities of any series, executed by the Company, to
the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Debt Securities and the
Trustee in accordance with the Company Order shall authenticate and
deliver such Debt Securities. If all the Debt Securities of any one
series are not to be issued at one time and if a Board Resolution
or the Officers’ Certificate or other document pursuant to a
Board Resolution or supplemental indenture relating to such series
shall so permit, such Company
Order may set forth procedures
acceptable to the Trustee for the issuance of such Debt Securities
and for the determination of the terms thereof, such as interest
rate, Stated Maturity, date of issuance and date from which
interest, if any, shall accrue.
The Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in
relying upon, prior to the authentication and delivery of the Debt
Securities of such series, (i) the supplemental indenture or the
Board Resolution by or pursuant to which the form and terms of such
Debt Securities have been approved and (ii) an Opinion of Counsel
substantially to the effect that:
(1) the
Company Order furnished by the Company to the Trustee in connection
with the authentication and delivery of such Debt Securities
conforms to the requirements of this Indenture and constitutes
sufficient authority hereunder for the Trustee to authenticate and
deliver such Debt Securities;
(2) the
forms and terms (or, if applicable, the manner of determining the
terms) of such Debt Securities are consistent with the provisions
of this Indenture;
(3) in
the event that the forms or terms of such Debt Securities have been
established in a supplemental indenture, the execution and delivery
of such supplemental indenture has been duly authorized by all
necessary corporate action of the Company, such supplemental
indenture has been duly executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Trustee,
is a valid and binding obligation enforceable against the Company
in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights
generally and subject, as to enforceability, to general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and subject to such other
exceptions as counsel shall conclude do not materially affect the
rights of the Holders of such Debt Securities; and
(4) the
execution and delivery of such Debt Securities have been duly
authorized by all necessary corporate action of the Company and
such Debt Securities (if to be issued at the time of delivery of
such Company Order) have been duly executed and delivered by the
Company and, assuming due authentication by the Trustee and
execution and delivery by the Company (if to be issued after
delivery of such Company Order in accordance with the foregoing
procedures), are valid and binding obligations enforceable against
the Company in accordance with their terms, entitled to the benefit
of the Indenture, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law) and subject to such other exceptions as counsel
shall conclude do not materially affect the rights of the Holders
of such Debt Securities; and
(5) the
amount of Debt Securities Outstanding of such series, together with
the amount of such Debt Securities, does not exceed any limit
established under the terms of this Indenture on the amount of Debt
Securities of such series that may be authenticated and
delivered.
The Trustee shall not be required to
authenticate such Debt Securities if the issuance of such Debt
Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the Debt
Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
Each Debt Security shall be dated
the date of its authentication.
Notwithstanding the provisions of
Section 3.1 and of the preceding paragraphs, if all Debt Securities
of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Board Resolution or any
Officers’ Certificate or other document pursuant to a Board
Resolution otherwise required pursuant to Section 3.1 or the
Company Order, the Officers’ Certificate and Opinion of
Counsel otherwise required pursuant to such preceding paragraphs or
Sections 1.2 and 2.1 at or prior to the authentication of each Debt
Security of such series if such documents are delivered at or prior
to the authentication upon original issuance of the first Debt
Security of such series to be issued.
With respect to Debt Securities of a
series that are not to be originally issued at one time, the
Trustee may rely, as to the authorization by the Company of any of
such Debt Securities, the forms and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the
Opinion of Counsel and the other documents delivered pursuant to
Sections 2.1 and 3.1 and this Section, as applicable, in connection
with the first authentication of Debt Securities of such
series.
No Debt Security shall be entitled
to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Debt Security a
certificate of authentication substantially in one of the forms
provided for herein duly executed by an authorized officer of the
Trustee or by an Authenticating Agent, and such certificate upon
any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Debt Security
shall have been duly authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver
such Debt Security to the Trustee for cancellation as provided in
Section 3.8 together with a written statement (which need not
comply with Section 1.2) stating that such Debt Security has never
been issued and sold by the Company, for all purposes of this
Indenture such Debt Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Reference is made to Section 17.3
concerning execution and delivery of the Guarantees.
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Section 3.4.
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Temporary Debt Securities; Global Notes
Representing Debt Securities.
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(a) Pending
the preparation of definitive Debt Securities of any series, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Debt Securities which are
printed, lithographed, typewritten or otherwise produced, in any
authorized denomination for Debt Securities of such series,
substantially of the tenor of the definitive Debt Securities in
lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Debt Securities may determine, as conclusively
evidenced by their execution of such Debt Securities. Every such
temporary Debt Security shall be executed by the Company and shall
be authenticated and delivered by the Trustee upon the same
conditions and in substantially the same manner, and with the same
effect, as the definitive Debt Securities in lieu of which they are
issued.
Except in the case of temporary Debt
Securities in global form (which shall be exchanged in accordance
with the provisions of the following paragraphs), if temporary Debt
Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such
series shall be exchangeable for definitive Debt Securities of such
series, of a like Stated Maturity and with like terms and
provisions, upon surrender of the temporary Debt Securities of such
series at the office or agency of the Company in a Place of Payment
for such series, without charge to the Holder, except as provided
in Section 3.5 in connection with a transfer. Upon surrender for
cancellation of any one or more temporary Debt Securities of any
series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal
amount of definitive Debt Securities of the same series of
authorized denominations and of a like Stated Maturity and like
terms and provisions. Until so exchanged, the temporary Debt
Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Debt Securities of
such series.
(b) If
the Company shall establish pursuant to Section 3.1 that the Debt
Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute
and the Trustee shall, in accordance with Section 3.3 and the
Company Order with respect to such series, authenticate and deliver
one or more Global Notes that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of
the Outstanding Debt Securities of such series to be represented by
one or more Global Notes, (ii) shall be registered in the name of
the Depositary for such Global Note or Notes or the nominee of such
depositary, and (iii) shall bear a legend substantially to the
following effect: “This Debt Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor
Depositary, unless and until this Debt Security is exchanged in
whole or in part for Debt Securities in definitive
form.”
Notwithstanding any other provision
of this Section or Section 3.5, unless and until it is exchanged in
whole or in part for Debt Securities in definitive form, a Global
Note representing all or a portion of the Debt Securities of a
series may not be transferred except as a whole by the Depositary
for such series to a nominee of such depositary or by a nominee of
such depositary to
such depositary or another nominee
of such depositary or by such depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
depositary.
If at any time the Depositary for
the Debt Securities of a series notifies the Company that it is
unwilling or unable to continue as Depositary for the Debt
Securities of such series or if at any time the Depositary for Debt
Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act
of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to the
Debt Securities of such series. If a successor Depositary for the
Debt Securities of such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes
aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery
of definitive Debt Securities of such series, will authenticate and
deliver, Debt Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the
Global Note or Notes representing such series in exchange for such
Global Note or Notes.
The Company may at any time and in
its sole discretion, subject to the procedures of the Depositary,
determine that the Debt Securities of any series issued in the form
of one or more Global Notes shall no longer be represented by such
Global Note or Notes. In such event, the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Debt Securities of such series, will
authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the
principal amount of the Global Note or Notes representing such
series in exchange for such Global Note or Notes.
If the Debt Securities of any series
shall have been issued in the form of one or more Global Notes and
if an Event of Default with respect to the Debt Securities of such
series shall have occurred and be continuing, the Company will
promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of
such series in definitive form and in an aggregate principal amount
equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or
Notes.
If specified by the Company pursuant
to Section 3.1 with respect to Debt Securities of a series, the
Depositary for such series of Debt Securities may surrender a
Global Note for such series of Debt Securities in exchange in whole
or in part for Debt Securities of such series in definitive form on
such terms as are acceptable to the Company and such depositary.
Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to
each Person specified by the Depositary a new Debt Security or
Securities of the same series, of any authorized denomination as
requested by such Person in an aggregate principal amount equal to
and in exchange for such Person’s beneficial interest in the
Global Note; and
(ii) to
the Depositary a new Global Note in a denomination equal to the
difference, if any, between the principal amount of the surrendered
Global
Note and the aggregate principal
amount of Debt Securities delivered to Holders thereof.
Upon the exchange of a Global Note
for Debt Securities in definitive form, such Global Note shall be
canceled by the Trustee. Debt Securities issued in exchange for a
Global Note pursuant to this subsection (c) shall be registered in
such names and in such authorized denominations as the Depositary
for such Global Note, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Debt Securities to the Persons in whose
names such Debt Securities are so registered.
No holder of any beneficial interest
in any Global Note held on its behalf by a Depositary (or its
nominee) shall have any rights under this Indenture with respect to
such Global Note or any Debt Security represented thereby, and such
Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global
Note or any Debt Security represented thereby for all purposes
whatsoever. None of the Company, the Trustee nor any agent of the
Company or the Trustee 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
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. Notwithstanding the foregoing, with
respect to any 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 a Depositary or impair, as between a
Depositary and such holders of beneficial interest, the operation
of customary practices governing the exercise of the rights of the
Depositary (or its nominees) as Holder of any Debt
Security.
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Section 3.5.
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Registration, Transfer and
Exchange.
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(a) The
Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office or in
any other office or agency of the Company in a Place of Payment
being herein sometimes referred to as the “Security
Register”) in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration
of Debt Securities and of transfers and exchanges of Debt
Securities. Such Security Register shall be in written form in the
English language or in any other form capable of being accurately
and completely converted into such form within a reasonable time.
The Trustee is hereby appointed “Security Registrar”
for the purpose of registering Debt Securities and registering
transfers and exchanges of Debt Securities as herein provided;
provided, however, that the Company may appoint co-Security
Registrars unless the terms of any series of Debt Securities
provide otherwise.
Upon surrender for registration of
transfer of any Debt Security of any series at the office or agency
of the Company maintained for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more new Debt Securities
of the same series of like aggregate principal amount of such
denominations as are authorized for Debt Securities of such series
and of a like Stated Maturity and with like terms and
conditions.
Except as otherwise provided in
Section 3.4 and this Section 3.5, at the option of the Holder, Debt
Securities of any series may be exchanged for other Debt Securities
of the same series of like aggregate principal amount and of a like
Stated Maturity and with like terms and conditions, upon surrender
of the Debt Securities to be exchanged at such office or agency.
Whenever any Debt Securities are surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Debt Securities which the Holder making the exchange
is entitled to receive.
(b) All
Debt Securities issued upon any transfer or exchange of Debt
Securities shall be valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered for such transfer or
exchange.
Every Debt Security presented or
surrendered for transfer or exchange shall (if so required by the
Company or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company
and the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge will be made for
any transfer or exchange of Debt Securities except as provided in
Section 3.6. The Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any registration, transfer or exchange of Debt
Securities, other than those expressly provided in this Indenture
to be made at the Company’s own expense or without expense or
without charge to the Holders.
The Company shall not be required
(i) to register, transfer or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days before
the day of the transmission of a notice of redemption of Debt
Securities of such series selected for redemption under Section
13.3 and ending at the close of business on the day of such
transmission, or (ii) to register, transfer or exchange any Debt
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Debt Security being redeemed in
part.
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Section 3.6.
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Mutilated, Destroyed, Lost and Stolen Debt
Securities.
|
If (i) any mutilated Debt Security
is surrendered to the Trustee at its Corporate Trust Office, or
(ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt
Security, and there is delivered to the Company and the Trustee
such security or indemnity as may be satisfactory by them to save
each of them and any Paying Agent harmless, and neither the Company
nor the Trustee receives notice that such Debt Security has been
acquired by a bona fide purchaser, then the Company shall execute
and upon Company Request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Debt Security, a new Debt Security of the
same series of like Stated Maturity and with like terms and
conditions and like principal amount, bearing a number not
contemporaneously Outstanding,
In case any such mutilated,
destroyed, lost or stolen Debt Security has become or is about to
become due and payable, the Company in its discretion may, instead
of issuing a new Debt Security, pay the amount due on such Debt
Security in accordance with its terms.
Upon the issuance of any new Debt
Security under this Section, the Company may require the payment of
a sum sufficient to cover any tax or other governmental charge that
may be imposed in respect thereto and any other expenses (including
the fees and expenses of the Trustee) connected
therewith.
Every new Debt Security of any
series issued pursuant to this Section shall constitute an original
additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Debt Security 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
Debt Securities of that series duly issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities.
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Section 3.7.
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Payment of Interest; Interest Rights
Preserved.
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(a) Unless
otherwise specified as contemplated by Section 3.1 with respect to
the Debt Securities of any series, interest on any Debt Security
which is payable and is punctually paid or duly provided for on any
Interest Payment Date shall be paid to the Person in whose name
such Debt Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest notwithstanding the cancellation of such Debt
Security upon any transfer or exchange subsequent to the Regular
Record Date. Unless otherwise specified as contemplated by Section
3.1 with respect to the Debt Securities of any series, payment of
interest on Debt Securities shall be made at the place or places
specified pursuant to Section 3.1 or, at the option of the Company,
by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if provided
pursuant to Section 3.1, by wire transfer to an account designated
by the Holder by the Regular Record Date.
(b) Any
interest on any Debt Security which 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 Holder on the relevant Regular Record
Date by virtue of his 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 such Debt Securities (or their respective
Predecessor Securities) are registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debt Security and the date of the
proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which date shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to the Holders of such Debt
Securities at their addresses as they appear in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Debt Securities (or their respective Predecessor Securities) 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 Debt
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debt
Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the
Trustee.
(c) Subject
to the foregoing provisions of this Section, each Debt Security
delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by
such other Debt Security.
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Section 3.8.
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Cancellation.
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Unless otherwise specified pursuant
to Section 3.1 for Debt Securities of any series, all Debt
Securities surrendered for payment, redemption, transfer, exchange
or credit against any sinking fund shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All
Debt Securities so delivered shall be promptly canceled by the
Trustee. The Company may at any time deliver to the Trustee for
cancellation any Debt Securities 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 Debt
Securities previously authenticated hereunder which the Company has
not issued, and all Debt Securities so delivered shall be promptly
canceled by the Trustee. No Debt Securities shall be authenticated
in lieu of or in exchange for any Debt Securities canceled as
provided in this Section, except as expressly permitted by this
Indenture. All canceled Debt Securities held by the Trustee shall
be disposed of by the Trustee in accordance with its customary
procedures. The acquisition of any Debt Securities by the Company
shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until such Debt
Securities are surrendered to the Trustee for
cancellation.
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Section 3.9.
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Computation of Interest.
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Except as otherwise specified
pursuant to Section 3.1 for Debt Securities of any series, interest
on the Debt Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months (unless otherwise
specified).
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Section 3.10.
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Currency of Payments in Respect of Debt
Securities.
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Payment of the principal of (and
premium, if any) and any interest on any Debt Security of such
series will be made in Dollars.
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Section 3.11.
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CUSIP Numbers.
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The Company in issuing Debt
Securities may use “CUSIP” numbers (if then generally
in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders;
provided that any such
notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debt
Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers
printed on the Debt Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers. The
Company will promptly notify the Trustee in writing of any change
in the “CUSIP” numbers.
ARTICLE IV.
SATISFACTION AND
DISCHARGE
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Section 4.1.
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Satisfaction and Discharge of
Indenture.
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This Indenture, with respect to the
Debt Securities of any series (if all series issued under this
Indenture are not to be affected), shall, upon Company Request,
cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of such Debt Securities herein
expressly provided for and rights to receive payments of principal
(and premium, if any) and interest on such Debt Securities) and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when:
(A) all Debt
Securities of such series theretofore authenticated and delivered
(other than (i) Debt Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6 and (ii) Debt Securities of such series for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in
Section 12.4) have been delivered to the Trustee for cancellation;
or
(B) all Debt
Securities of such series not theretofore delivered to the Trustee
for cancellation,
(i) have
become due and payable by reason of the giving of a notice of
redemption or otherwise, or
(ii) will
become due and payable at their Stated Maturity within one year,
or
(iii) are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the
Company,
and the Company either complies with
any other condition or terms specified pursuant to Section 3.1, or
if not so specified in the case of (i), (ii) or (iii) of this
subclause (B), has irrevocably deposited or caused to be deposited
with the Trustee as trust funds held in trust solely for the
benefit of the Holders, cash in United States Dollars in an amount,
U.S. Government Obligations (as defined in Section 15.2) which
through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or a
combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge
the entire indebtedness on such Debt Securities not delivered to
the Trustee for cancellation for principal, premium, if any and
accrued interest to the date of such deposit (in the case of Debt
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the
Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the
Company has delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with.
Notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company to the
Trustee under Section 6.7, and if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 4.2 and the
last paragraph of Section 12.4, shall survive.
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Section 4.2.
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Application of Trust Money, Etc.
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The Trustee and any Paying Agent
shall promptly pay or return to the Company upon Company Request
any moneys or U.S. Government Obligations held by them at any time
that are not required for the payment of the principal of (and
premium, if any) and interest on the Debt Securities of any series
for which money or U.S. Government Obligations have been deposited
pursuant to Section 4.1.
Subject to the provisions of the
last paragraph of Section 12.4, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied
by it, in accordance with the provisions of the Debt Securities, if
any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for
whose payment such money has been deposited with the
Trustee.
The Company shall pay and shall
indemnify the Trustee for any series of Debt Securities against any
tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Section 4.1 or the
interest and principal received in respect of such U.S. Government
Obligations other than any such tax, fee or other charge which by
law is payable by or on behalf of Holders. The obligation of the
Company under this Section 4.2 shall be deemed to be an obligation
of the Company under Section 6.7.
ARTICLE V.
REMEDIES
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Section 5.1.
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Events of Default.
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“Event of Default”
wherever used herein with respect to Debt Securities of any series,
and unless otherwise provided with respect to Debt Securities of
any series pursuant to Section 3.1, means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of
law, pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(1) default
in the payment of any interest upon any Debt Security of such
series when it 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 (and premium, if any, on) any
Debt Security of such series at its Maturity; or
(3) default
in the deposit of any sinking fund payment, when and as due by the
terms of a Debt Security of such series, and the continuance of
such default for a period of 30 days; or
(4) default
in the performance, or breach, of any covenant or warranty of the
Company or any Guarantor with respect to such series in this
Indenture, the Pledge Agreement or the other Security Agreements
(other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt
with or which expressly has been included in this Indenture, the
Pledge Agreement or the other Security Agreements solely for the
benefit of Debt Securities of a series other than such series), and
continuance of such default or breach for a period of 90 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
Debt Securities of such series, 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
(5) the
entry of a decree or order for relief in respect of the Company by
a court having jurisdiction in the premises in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy, insolvency or
other similar law, or a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or State
law, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the Company or
of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the
commencement by the Company of a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar
law, or the consent by it to the entry of an order for relief in an
involuntary case under any such law or to the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or other similar official) of the Company or of any substantial
part of its property, or the making by it of an assignment for the
benefit of its creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any
such action; or
(7) any
Guarantor contests the validity or enforceability of its guarantee
or any obligation under a Guarantee shall not be (or is claimed by
a Guarantor not to be) in full force and effect; or
(8) any
other Event of Default provided with respect to Debt Securities of
that series pursuant to Section 3.1.
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Section 5.2.
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Acceleration of Maturity; Rescission and
Annulment.
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If an Event of Default (unless
otherwise provided with respect to Debt Securities of any series
pursuant to Section 3.1, other than an Event of Default specified
in clauses (5) or (6) of Section 5.1) with respect to Debt
Securities of any series at the time Outstanding occurs and is
continuing, then in every such case, unless the principal of all
Debt Securities shall have already become due and payable, the
Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series may declare the
principal amount (or, if any Debt Securities of such series are
Discount Securities or indexed securities, such portion of the
principal amount of such Discount Securities as may be specified in
the terms of such Discount Securities or indexed securities) of and
all accrued but unpaid interest on all the Debt Securities of such
series to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or
specified amount) plus accrued and
unpaid interest (and premium, if payable) shall become immediately
due and payable. Unless otherwise provided with respect to Debt
Securities of any series pursuant to Section 3.1, if an Event of
Default specified in clauses (5) or (6) of Section 5.1 occurs, such
amount shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or
any Holder. Upon payment of such amount, all obligations of the
Company in respect of the payment of principal of (and premium, if
payable) and interest on the Debt Securities of such series shall
terminate.
At any time after such a declaration
of acceleration with respect to Debt Securities of any series has
been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article
V provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, 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
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(A)
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all overdue installments of interest on all Debt
Securities of such series,
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(B)
|
the principal of (and premium, if any, on) any
Debt Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon at the
rate or rates prescribed therefor in such Debt
Securities,
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(C)
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to the extent that payment of such interest is
lawful, interest upon overdue installments of interest on each Debt
Security of such series at the Overdue Rate, and
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(D)
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all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; provided,
however, that all sums payable under this clause (D) shall be paid
in Dollars;
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and
(2) All
Events of Default with respect to Debt Securities of such series,
other than the nonpayment of the principal of Debt Securities of
such series which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
5.13.
No such rescission and waiver shall
affect any subsequent default or impair any right consequent
thereon.
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Section 5.3.
|
Collection of Indebtedness and Suits for
Enforcement by Trustee.
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The Company covenants that
if
(1) default
is made in the payment of any installment of interest on any Debt
Security when such interest becomes due and payable and such
default continues for a period of 30 days,
(2) default
is made in the payment of principal of (or premium, if any, on) any
Debt Security at the Maturity thereof, or
(3) default
is made in the making or satisfaction of any sinking fund payment
or analogous obligation when the same becomes due pursuant to the
terms of the Debt Securities of any series, and such default
continues for a period of 30 days,
the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such Debt
Securities, the amount then due and payable on such Debt
Securities, for the principal (and premium, if any) and interest,
if any, and, to the extent that payment of such interest shall be
legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the
Overdue Rate; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such
amount 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 such Debt
Securities, 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 such Debt Securities wherever
situated.
If an Event of Default with respect
to Debt Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Debt Securities of such
series 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.
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Section 5.4.
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Trustee May File Proofs of Claim.
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In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceedings,
or any voluntary or involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, relative to the Company or
any other obligor upon the Debt Securities, of a particular series
or all or substantially all of the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of
whether the principal of such Debt Securities shall then be due and
payable as therein expressed or by declaration of acceleration or
otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to
file and prove a claim for the whole amount of principal (or, if
the Debt Securities of such series are Discount Securities, such
portion of the principal amount as may be due and payable with
respect to such series pursuant to a declaration in accordance with
Section 5.2) (and premium, if any) and interest owing and unpaid in
respect of the Debt Securities of such series and to file such
other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders of such
Debt Securities 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
receiver, assignee, trustee, custodian, liquidator, sequestrator
(or other similar official) in any such proceeding is hereby
authorized by each such Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to such Holders, to pay to the
Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
6.7.
Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Debt
Securities of such series or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
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Section 5.5.
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Trustee May Enforce Claims Without Possession of
Debt Securities.
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All rights of action and claims
under this Indenture or the Debt Securities of any series may be
prosecuted and enforced by the Trustee without the possession of
any of such Debt Securities 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 Debt Securities in
respect of which such judgment has been recovered.
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Section 5.6.
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Application of Money Collected.
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Any money collected by the Trustee
pursuant to this Article (including, in respect of any Debt
Securities secured pursuant to Article XVIII, upon realization from
any Collateral) 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 (and premium, if any) or
interest, upon presentation of the Debt Securities of any series in
respect of which money has been collected and the notation thereon
of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts
due the Trustee under Section 6.7;
SECOND: To the payment of the
amounts then due and unpaid for principal of (and premium, if any)
and interest on the Debt Securities of such series, in respect of
which or for the benefit of which such money has been collected
ratably, without preference or priority of any kind, according to
the amounts due and payable on such Debt Securities for principal
(and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the
Person or Persons entitled thereto.
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Section 5.7.
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Limitation on Suits.
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No Holder of any Debt Security of
any series shall have any right to institute any action or
proceeding, judicial or otherwise, at law or in equity or in
bankruptcy or otherwise, with respect to this Indenture, or for the
appointment of a receiver, trustee, liquidator, custodian,
sequestrator (or similar official) 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 such series,
(2) the
Holders of not less than 25% in principal amount of the Outstanding
Debt Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder,
(3) such
Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to it 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
(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 Debt Securities of such
series;
it being understood and intended
that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any
other such Holders or of the Holders of Outstanding Debt Securities
of any other series (it being understood that the Trustee does not
have an affirmative duty to ascertain whether or not such actions
or forbearances are unduly prejudicial to 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 of such Holders. For the protection and enforcement
of the provisions of this Section 5.7, each and every Holder of
Debt Securities of any series and the Trustee for such series shall
be entitled to such relief as can be given at law or in
equity.
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Section 5.8.
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Unconditional Right of Holders to Receive
Principal, Premium and Interest.
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Notwithstanding any other provision
in this Indenture, the Holder of any Debt Security shall have the
right, which is absolute and unconditional, to receive payment of
the principal of (and premium, if any) and (subject to Section 3.7)
interest on such Debt Security on the respective Stated Maturity or
Maturities expressed in such Debt Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment and interest thereon, and such
right shall not be impaired without the consent of such
Holder.
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Section 5.9.
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Restoration of Rights and
Remedies.
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If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former
positions and rights hereunder, and thereafter all rights and
remedies of the Company, the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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Section 5.10.
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Rights and Remedies Cumulative.
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Except as otherwise expressly
provided elsewhere in this Indenture, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
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Section 5.11.
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Delay or Omission Not Waiver.
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No delay or omission of the Trustee
or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this
Indenture or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may
be.
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Section 5.12.
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Control By Holders.
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The Holders of a majority in
principal amount of the Outstanding Debt Securities of any series
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 by this Indenture on the
Trustee with respect to the Debt Securities of such series,
provided, that:
(1) such
direction shall not be in conflict with any rule of law or with
this Indenture;
(2) subject
to the provisions of Section 6.1, the Trustee shall have the right
to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of
the Trustee, determine that the proceeding so directed would be
unjustly prejudicial to the Holders of Debt Securities of such
series not joining in any such direction or would involve the
Trustee in personal liability; and
(3) the
Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
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Section 5.13.
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Waiver of Past Defaults.
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The Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all the
Debt Securities of any such series waive any past default hereunder
with respect to such series and its consequences, except a
default:
(1) in
the payment of the principal of (or premium, if any) or interest on
any Debt Security of such series, or in the payment of any sinking
fund installment or analogous obligation with respect to the Debt
Securities of such series; or
(2) in
respect of a covenant or provision hereof which pursuant to Article
XI cannot be modified or amended without the consent of the Holder
of each Outstanding Debt Security of such series affected; provided
that a majority in principal amount of the Outstanding Debt
Securities of such series may rescind and annul a declaration of
acceleration with respect to Debt Securities of a given series, as
provided in Section 5.2.
Upon any such waiver, such default
shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured and not to have occurred, for
every purpose of the Debt Securities of such series under this
Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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Section 5.14.
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Undertaking for Costs.
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All parties to this Indenture agree,
and each Holder of any Debt Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing
by any party litigant in such suit other than the Trustee of an
undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant, but the provisions
of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder or group of Holders holding in the
aggregate more than 10% in principal amount of the Outstanding Debt
Securities of any series, or to any suit instituted by any Holder
of a Debt Security for the enforcement of the payment of the
principal of (or premium, if any) or
interest on such Debt Security on or
after the respective Stated Maturity or Maturities expressed in
such Debt Security (or, in the case of redemption, o
