EXECUTION COPY
Coors Brewing Company
Issuer
The Guarantors Named Herein as Guarantors
Deutsche Bank Trust Company Americas
Trustee
____________________
INDENTURE
Dated as of May 7, 2002
_____________________
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) .............................. 7.10
(a)(2) .............................. 7.10
(a)(3) .............................. N.A.
(a)(4) .............................. N.A.
(b) .............................. 7.08; 7.10
(c) .............................. N.A.
311(a) .............................. 7.11
(b) .............................. 7.11
(c) .............................. N.A.
312(a) .............................. 2.05
(b) .............................. 10.03
(c) .............................. 10.03
313(a) .............................. 7.06
(b)(1) .............................. N.A.
(b)(2) .............................. 7.06
(c) .............................. 11.02
(d) .............................. 7.06
314(a) .............................. 4.02;
(b) .............................. N.A.
(c)(1) .............................. 10.04
(c)(2) .............................. 10.04
(c)(3) .............................. N.A.
(d) .............................. N.A.
(e) .............................. 10.05
315(a) .............................. 7.01
(b) .............................. 7.05; 10.02
(c) .............................. 7.01
(d) .............................. 7.01
(e) .............................. 6.11
316(a)(last sentence) .......................... 10.06
(a)(1)(A) .............................. 6.05
(a)(1)(B) .............................. 6.04
(a)(2) .............................. N.A.
(b) .............................. 6.07
317(a)(1) .............................. 6.08
(a)(2) .............................. 6.09
(b) .............................. 2.04
318(a) .............................. 10.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1 Definitions and Incorporation by Reference
SECTION 1.01. Definitions 1
SECTION 1.02. Other Definitions 7
SECTION 1.03. Incorporation by Reference of Trust Indenture Act 7
SECTION 1.04. Rules of Construction 7
ARTICLE 2 The Securities
SECTION 2.01. Issuable in Series 8
SECTION 2.02. Establishment of Terms of Series of Securities 8
SECTION 2.03. Execution and Authentication 12
SECTION 2.04. Paying Agent, Registrar and Service Agent 13
SECTION 2.05. Paying Agent to Hold Money in Trust 14
SECTION 2.06. Securityholder Lists 15
SECTION 2.07. Transfer and Exchange 15
SECTION 2.08. Replacement Securities 16
SECTION 2.09. Outstanding Securities 17
SECTION 2.10. Temporary Securities 17
SECTION 2.11. Cancellation 17
SECTION 2.12. Defaulted Interest 18
SECTION 2.13. Global Securities 18
SECTION 2.14. CUSIP Numbers 21
ARTICLE 3 Redemption
SECTION 3.01. Notices to Trustee 22
SECTION 3.02. Selection of Securities To Be Redeemed 22
SECTION 3.03. Notice of Redemption 23
SECTION 3.04. Effect of Notice of Redemption 24
SECTION 3.05. Deposit of Redemption Price 24
SECTION 3.06. Securities Redeemed in Part 24
ARTICLE 4 Covenants
SECTION 4.01. Payment of Securities 24
SECTION 4.02. Compliance Certificate 25
SECTION 4.03. Further Instruments and Acts 25
ARTICLE 5 Merger and Consolidation
SECTION 5.01. When Parent, Company or Subsidiary Guarantors May
Merge or Transfer Assets 25
ARTICLE 6 Defaults and Remedies
SECTION 6.01. Events of Default 27
SECTION 6.02. Acceleration 29
SECTION 6.03. Other Remedies 29
SECTION 6.04. Waiver of Defaults 30
SECTION 6.05. Control by Majority 30
SECTION 6.06. Limitation on Suits 31
SECTION 6.07. Rights of Holders to Receive Payment 31
SECTION 6.08. Collection Suit by Trustee 31
SECTION 6.09. Trustee May File Proofs of Claim 32
SECTION 6.10. Priorities 32
SECTION 6.11. Undertaking for Costs 33
SECTION 6.12. Waiver of Stay or Extension Laws 33
ARTICLE 7 Trustee
SECTION 7.01. Duties of Trustee 33
SECTION 7.02. Rights of Trustee 35
SECTION 7.03. Individual Rights of Trustee 35
SECTION 7.04. Trustee's Disclaimer 35
SECTION 7.05. Notice of Defaults 36
SECTION 7.06. Reports by Trustee to Holders 36
SECTION 7.07. Compensation and Indemnity 36
SECTION 7.08. Replacement of Trustee 37
SECTION 7.09. Successor Trustee by Merger 38
SECTION 7.10. Eligibility; Disqualification 39
SECTION 7.11. Preferential Collection of Claims Against Company 39
ARTICLE 8 Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance 39
SECTION 8.02. Conditions to Defeasance 40
SECTION 8.03. Application of Trust Money 42
SECTION 8.04. Repayment to Company 42
SECTION 8.05. Indemnity for Government Obligations 42
SECTION 8.06. Reinstatement 42
ARTICLE 9 Amendments
SECTION 9.01. Without Consent of Holders 43
SECTION 9.02. With Consent of Holders 45
SECTION 9.03. Compliance with Trust Indenture Act 46
SECTION 9.04. Revocation and Effect of Consents and Waivers 46
SECTION 9.05. Notation on or Exchange of Securities 46
SECTION 9.06. Trustee To Sign Amendments 47
SECTION 9.07. Payment for Consent 47
ARTICLE 10 Guaranties
SECTION 10.01. Guaranties 47
SECTION 10.02. Limitation on Liability 50
SECTION 10.03. Successors and Assigns 50
SECTION 10.04. No Waiver 50
SECTION 10.05. Modification 50
SECTION 10.06. Release of Subsidiary Guarantor 51
SECTION 10.07. Contribution 51
ARTICLE 11 Miscellaneous
SECTION 11.01. Trust Indenture Act Controls 51
SECTION 11.02. Notices 52
SECTION 11.03. Communication by Holders with Other Holders 52
SECTION 11.04. Certificate and Opinion as to Conditions Precedent 52
SECTION 11.05. Statements Required in Certificate or Opinion 53
SECTION 11.06. When Securities Disregarded 53
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar 54
SECTION 11.08. Legal Holidays 54
SECTION 11.09. Governing Law 54
SECTION 11.10. No Recourse Against Others 54
SECTION 11.11. Successors 54
SECTION 11.12. Multiple Originals 54
SECTION 11.13. Table of Contents; Headings 54
INDENTURE dated as of May 7, 2002, among Coors
Brewing Company, a Colorado Corporation (the
"Company"), Xxxxxx Xxxxx Company, a Colorado
corporation (the "Parent"), Coors Distributing
Company, a Colorado company, Coors Worldwide, Inc., a
Colorado company, Coors International Market
Development L.L.L.P, a Colorado limited liability
limited partnership and Coors Caribe, Inc., a Colorado
corporation, and Deutsche Bank Trust Company Americas,
a New York banking corporation, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the
securities issued under this Indenture (the "Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"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" when used with respect to any Person means
the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
adopted by the Board of Directors or pursuant to authorization by the
Board of Directors and to be in full force and effect on the date of the
certificate and delivered to the Trustee.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of
such Board.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such
Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
"Clearstream" means Clearstream Banking, societe anonyme.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and,
for purposes of any provision contained herein and required by the TIA,
each other obligor on the indenture securities.
"Company Order" means a written order signed in the name of
the Company by two Officers, one of whom must be the Company's principal
executive officer, principal financial officer or principal accounting
officer.
"Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor entity thereto.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Definitive Security" means a certificated Security
registered in the name of the holder thereof and issued in accordance
with Section 2.07 hereof.
"Depositary" means, with respect to the Securities issuable
or issued in whole or in part in global form, the Person specified in
Section 2.13 hereof as the Depositary with respect to the Securities,
and any and all successors thereto appointed as depositary hereunder and
having become such pursuant to the applicable provision of this
Indenture.
"Dollar" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal
tender for the payment of public and private debt.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of
the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means, with respect to any Series of Securities,
generally accepted accounting principles in the United States of America
as in effect as of the Issue Date for such Series, including those set
forth in:
(1) the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants;
(2) statements and pronouncements of the Financial
Accounting Standards Board;
(3) such other statements by such other entity as approved
by a significant segment of the accounting profession; and
(4) the rules and regulations of the SEC governing the
inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written
statements from the accounting staff of the SEC. All computations
based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.
"Global Security" when used with respect to any Series of
Securities issued hereunder, means a Security (1) which is executed by
the Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in
accordance with this Indenture and an indenture supplemental hereto, if
any, or with a Board Resolution and pursuant to a Company Order,
(2) which shall be registered in the name of the Depositary or its
nominee and (3) which shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all the outstanding
Securities of such Series or any portion thereof, in either case having
the same terms, including, without limitation, the same original issue
date, date or dates on which principal is due, and interest rate or
method of determining interest and which shall bear the Global Security
Legend.
"Global Security Legend" means the legend set forth in
Section 2.13(c), which is required to be placed on all Global Securities
issued under this Indenture.
"Guarantors" means Parent and the Subsidiary Guarantors.
"Guaranty" means a Parent Guaranty or a Subsidiary Guaranty.
"Guaranty Agreement" means a supplemental indenture, in a
form satisfactory to the Trustee, pursuant to which a Subsidiary
Guarantor guarantees the Company's obligations with respect to the
Securities on the terms provided for in this Indenture.
"Holder" or "Securityholder" means the Person in whose name
a Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Interest Payment Date" when used with respect to any Series
of Securities, means the date specified in such Securities for the
payment of any installment of interest on those Securities.
"Issue Date" means, with respect to any Series of
Securities, the date on which the initial Securities of such Series are
first issued.
"Maturity," when used with respect to any Security or
installment of principal thereof, means the date on which the principal
of such Security or such 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, notice of option to
elect repayment or otherwise.
"Mortgage" means any mortgage, pledge, security interest,
encumbrance, lien or similar charge.
"Officer" means, with respect to any Person (other than the
Trustee), the Chairman of the Board, the President, any Vice President,
the Treasurer or the Secretary of such Person.
"Officers' Certificate" means a certificate signed by two
Officers of the Parent and two Officers of the Company.
"Opinion of Counsel" means a written opinion from
legal counsel who is acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security that
provides for an amount less than the stated principal amount thereof to
be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.02.
"Participant" means, with respect to the Depositary,
Euroclear or Clearstream, a Person who has an account with the
Depositary, Euroclear or Clearstream, respectively (and, with respect to
the Depository Trust Company, shall include Euroclear and Clearstream).
"Parent" means Xxxxxx Xxxxx Company and its successors.
"Parent Guaranty" means any guarantee by Parent of the
Company's obligations with respect to any Series of Securities issued
under this Indenture.
"Person" means any individual, company, corporation,
partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization, government or
any agency or political subdivision thereof or any other entity.
"principal" of a Security means the principal of the
Security plus the premium, if any, payable on the Security which is due
or overdue or is to become due at the relevant time.
"SEC" means the Securities and Exchange Commission.
"Security" or "Securities" means each Security issued
formally by the Company.
"Series" or "Series of Securities" means each series of
debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.01 and 2.02 hereof.
"Stated Maturity," when used with respect to any Security,
means the date specified in such Security as the fixed date on which an
amount equal to the principal amount of such Security is due and
payable.
"Subsidiary" means, with respect to any Person, any other
Person more than 50% of the outstanding Voting Stock of which at the
time of determination is owned, directly or indirectly, by such Person
and/or one or more other Subsidiaries of such Person.
"Subsidiary Guarantors" means Coors Distributing Company,
Coors International Market Development, L.L.L.P., Coors Worldwide, Inc.,
and Coors Caribe, Inc. and any of the Parent's future Subsidiaries or
any one or combination of such Subsidiaries to the extent designated in
accordance with Section 2.02 as a "Subsidiary Guarantor" for a
particular Series of Securities.
"Subsidiary Guaranty" means any guarantee by a Subsidiary
Guarantor of the Company's obligations with respect to any Series of
Securities under this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
sections 77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it, pursuant to Section 7.08, and,
thereafter, means the successor.
"Trust Officer" means when used with respect to the Trustee,
any managing director, director, vice president, assistant vice
president, assistant treasurer, assistant secretary, associate or any
other officer within the corporate trust department of the Trustee
customarily performing functions similar to those performed by any of
the above designated officers and also shall mean, with respect to a
particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge and familiarity with the particular
subject.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of
the United States of America (including any agency or instrumentality
thereof) for the payment of which the full faith and credit of the
United States of America is pledged and which are not callable at the
issuer's option.
"Voting Stock" of a Person means all classes of Capital
Stock or other interests (including partnership interests) of such
Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof.
SECTION 1.02. Other Definitions.
Defined in
Term Section
"Agent" 2.04
"Bankruptcy Law" 6.01
"covenant defeasance option" 8.01(b)
"CUSIP" 2.12
"Event of Default" 6.01
"Guaranteed Obligation" 10.01
"ISIN" 2.12
"legal defeasance option" 8.01(b)
"Legal Holiday" 11.08
"Paying Agent" 2.04
"Registrar" 2.04
"Retiring Trustee" 7.08
"Service Agent" 2.04
"Successor Company" 5.01
"Successor Parent" 5.01
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA
which are incorporated by reference in and made a part of this Indenture.
The following TIA terms have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities, the Parent
Guaranty and the Subsidiary Guaranties;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company, the
Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) interest payable on Securities of any Series shall include
any additional interest required to be paid on such Securities under
any registration rights or similar agreement entered into by the
Company with respect to such Series of Securities;
(7) provisions apply to successive events and transactions;
and
(8) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2
The Securities
SECTION 2.01. Issuable in Series. The aggregate principal
amount of Securities that may be executed, authenticated and delivered
under this Indenture is unlimited. The Securities may be issued in one or
more Series. All Securities of a Series shall be identical except as may be
set forth in a supplemental indenture detailing the adoption of the terms
thereof pursuant to the authority granted under a Board Resolution. In the
case of Securities of a Series to be issued from time to time, the
supplemental indenture may provide for the method by which specified terms
(such as interest rate, maturity date, record date or date from which
interest shall accrue) are to be determined. Securities may differ between
Series in respect of any matters.
SECTION 2.02. Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series, the
following shall be established in a supplemental indenture (as to the
Series generally, in the case of Subsection 2.02(a)), and either as to such
Securities within the Series or as to the Series generally, in the case of
Subsections 2.02(b) through 2.02(aa) as reflecting terms set forth in a
Board Resolution or an Officers' Certificate pursuant to authority granted
under a Board Resolution:
(a) the title of the Securities of the Series (which shall
distinguish the Securities of that particular Series from the Securities of
any other Series);
(b) any limit upon the aggregate principal amount of the
Securities of the Series which may be executed, authenticated and delivered
under this Indenture (except for Securities executed, authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of the Series);
(c) the date or dates on which the principal and premium of the
Securities of the Series are payable;
(d) the rate or rates (which may be fixed or variable) at which
the Securities of the Series shall bear interest, if any, or the method of
determining such rate or rates, the date or dates from which such interest,
if any, shall accrue, the Interest Payment Dates on which such interest, if
any, shall be payable or the method by which such dates will be determined,
the record dates, for the determination of Holders thereof to whom such
interest is payable (in the case of Securities in registered form), and the
basis upon which such interest will be calculated if other than that of a
360-day year of twelve 30-day months;
(e) the currency or currencies, including composite currencies
in which Securities of the Series shall be denominated, if other than
Dollars, the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee (in the case of Securities in
registered form) or the principal New York office of the Trustee (in the
case of Securities in bearer form), where the principal, premium and
interest with respect to Securities of such Series shall be payable or the
method of such payment, if by wire transfer, mail or other means;
(f) the price or prices at which, the period or periods within
which, and the terms and conditions upon which, Securities of the Series
may be redeemed, in whole or in part at the option of the Company or
otherwise;
(g) whether Securities of the Series are to be issued in
registered form or bearer form or both and, if Securities are to be issued
in bearer form, whether coupons will be attached to them, whether
Securities of the Series in bearer form may be exchanged for Securities of
the Series issued in registered form, and the circumstances under which and
the places at which any such exchanges, if permitted, may be made;
(h) if any Securities of the Series are to be issued in bearer
form or as one or more Global Securities representing individual Securities
of the Series in bearer form, whether certain provisions for the payment of
additional interest or tax redemptions shall apply; whether interest with
respect to any portion of a temporary Security of the Series in bearer form
payable with respect to any Interest Payment Date prior to the exchange of
such temporary Security in bearer form for definitive Securities of the
Series in bearer form shall be paid to any clearing organization with
respect to the portion of such temporary Security in bearer form held for
its account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date; and the terms upon which a
temporary Security in bearer form may be exchanged for one or more
definitive Securities of the Series in bearer form;
(i) the obligation, if any, of the Company to redeem, purchase
or repay the Securities of the Series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which, the period or periods within which, and the terms and
conditions upon which, Securities of the Series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligations;
(j) the terms, if any, upon which the Securities of the Series
may be convertible into or exchanged for any of the Company's common stock,
preferred stock, other debt securities or warrants for common stock,
preferred stock or other securities of any kind and the terms and
conditions upon which such conversion or exchange shall be effected,
including the initial conversion or exchange price or rate, the conversion
or exchange period and any other additional provisions;
(k) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Securities of the Series
shall be issuable;
(l) if the amount of principal, premium or interest with
respect to the Securities of the Series may be determined with reference to
an index or pursuant to a formula, the manner in which such amounts will be
determined;
(m) if the principal amount payable at the Stated Maturity of
Securities of the Series will not be determinable as of any one or more
dates prior to such Stated Maturity, the amount that will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any Maturity
other than the Stated Maturity and which will be deemed to be outstanding
as of any such date (or, in any such case, the manner in which such deemed
principal amount is to be determined), and if necessary, the manner of
determining the equivalent thereof in Dollars;
(n) any changes or additions to Article 8;
(o) if other than the principal amount thereof, the portion of
the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02;
(p) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Securities of the Series of any properties,
assets, moneys, proceeds, securities or other collateral, including whether
certain provisions of the TIA are applicable and any corresponding changes
to provisions of this Indenture as then in effect;
(q) any addition to or change in the Events of Default which
applies to any Securities of the Series and any change in the right of the
Trustee or the requisite Holders of such Series of Securities to declare
the principal amount of, premium, if any, and interest on such Series of
Securities due and payable pursuant to Section 6.02;
(r) if the Securities of the Series shall be issued in whole or
in part in the form of a Global Security, the terms and conditions, if any,
upon which such Global Security may be exchanged in whole or in part for
other individual Definitive Securities of such Series, the Depositary for
such Global Security and the form of any legend or legends to be borne by
any such Global Security in addition to or in lieu of the Global Securities
Legend;
(s) any Trustee, authenticating agent, Paying Agent, transfer
agent, Service Agent or Registrar;
(t) the applicability of, and any addition to or change in, the
covenants (and the related definitions) set forth in Articles 4 or 5 which
applies to Securities of the Series;
(u) the names, if any, of the Subsidiary Guarantors and any
addition to or change in the terms of the Subsidiary Guaranties relating to
the Series, including any provisions related to their subordination;
(v) any addition to or change in the terms of the Parent
Guaranty, if any, to apply to the Securities of the Series, including any
provisions related to its subordination;
(w) the subordination, if any, of the Securities of the Series
pursuant to this Indenture;
(x) with regard to Securities of the Series that do not bear
interest, the dates for certain required reports to the Trustee;
(y) any United States Federal income tax consequences
applicable to the Securities;
(z) the terms applicable to Original Issue Discount Securities,
including the rate or rates at which original issue discount will accrue;
(aa) any other terms of Securities of the Series (which terms
shall not be prohibited by the provisions of this Indenture).
All Securities of any one Series need not be issued at the same
time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the supplemental indenture
referred to above, and the authorized principal amount of any Series may
not be increased to provide for issuances of additional Securities of such
Series, unless otherwise provided in such supplemental indenture.
SECTION 2.03. Execution and Authentication. Two Officers
shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall nevertheless
be valid. A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature shall
be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time,
authenticate Securities for original issue in the principal amount provided
in the supplemental indenture hereto upon receipt by the Trustee of a
Company Order. Such Company Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Company or
its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of
its authentication unless otherwise provided by a supplemental indenture
hereto.
The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the supplemental indenture hereto
delivered pursuant to Section 2.02, except as provided in Section 2.08.
Prior to the issuance of Securities of any Series, the Trustee
shall have received and (subject to Section 7.02) shall be fully protected
in relying on: (a) supplemental indenture hereto establishing the form of
the Securities of that Series or of Securities within that Series and the
terms of the Securities of that Series or of Securities within that Series,
(b) an Officers' Certificate complying with Section 11.04, and (c) an
Opinion of Counsel complying with Section 11.04.
The Trustee may decline to authenticate and deliver any
Securities of such Series: (a) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (b) if the
Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall
determine that such action would expose the Trustee to personal liability
to Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited
by the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar,
Paying Agent or Service Agent.
SECTION 2.04. Paying Agent, Registrar and Service Agent. The
Company shall maintain, with respect to each Series of Securities, an
office or agency in the Borough of Manhattan, the City and State of New
York (or any other place or places specified with respect to such Series
pursuant to Section 2.02) where Securities of such Series may be presented
or surrendered for payment ("Paying Agent"), where Securities of such
Series may be presented for registration of transfer or exchange
("Registrar") and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture (not including,
however, service of process) may be served ("Service Agent" and
collectively with the Paying Agent and the Registrar, the "Agents" and
each, an "Agent"). The Registrar shall keep a register with respect to
each Series of Securities and to their transfer and exchange. The Company
will give prompt written notice to the Trustee of the name and address, and
any change in the name or address, of each Registrar, Paying Agent or
Service Agent. If at any time the Company shall fail to maintain any such
required Registrar, Paying Agent or Service Agent or shall fail to furnish
the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands (other than service of process) may be made
or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
co-registrars, additional paying agents or additional service agents and
may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of
its obligations to maintain a Registrar, Paying Agent and Service Agent in
each place so specified pursuant to Section 2.02 for Securities of any
Series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
name or address of any such co-registrar, additional paying agent or
additional service agent. The term "Registrar" includes any co-registrar;
the term "Paying Agent" includes any additional paying agent; and the term
"Service Agent" includes any additional service agent.
The Company hereby appoints the Trustee as the initial
Registrar, Paying Agent and Service Agent for each Series unless another
Registrar, Paying Agent or Service Agent, as the case may be, is appointed
prior to the time Securities of that Series are first issued.
SECTION 2.05. Paying Agent to Hold Money in Trust. The
Company shall require each Paying Agent, other than the Trustee, to agree
in writing that the Paying Agent will hold in trust, for the benefit of
Holders of any Series of Securities, or the Trustee, all money held by the
Paying Agent for the payment of principal of or interest on the Series of
Securities, and will notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The
Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if
other than the Company or a Subsidiary) shall have no further liability for
the money. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of Holders of
any Series of Securities all money held by it as Paying Agent.
SECTION 2.06. Securityholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders of each Series
of Securities and shall otherwise comply with TIA section 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee, in
writing, at least five Business Days before each Interest Payment Date and
at such other times as the Trustee may request in writing a list, in such
form and as of such date as the Trustee may reasonably require, of the names
and addresses of Holders of each Series of Securities.
SECTION 2.07. Transfer and Exchange. When Securities of a
Series are presented to the Registrar or a co-registrar with a request to
register a transfer or to exchange them for an equal principal amount of
Securities of the same Series, the Registrar shall register the transfer or
make the exchange if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Company shall issue
and execute and the Trustee shall authenticate and deliver Securities at
the Registrar's request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company or Registrar may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer tax or
similar governmental charge payable upon exchanges pursuant to
Sections 3.06 or 9.05).
Neither the Company nor the Registrar shall be required (a) to
issue, register the transfer of, or exchange Securities of any Series for
the period beginning at the opening of business fifteen days immediately
preceding the mailing of a notice of redemption of Securities of that
Series selected for redemption and ending at the close of business on the
day of such mailing, or (b) to register the transfer or exchange of
Securities of any Series selected, called or being called for redemption as
a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.
SECTION 2.08. Replacement Securities. If any mutilated
Security is surrendered to the Trustee, the Company shall issue and
execute and, if the requirements of Section 8-405 of the Uniform
Commercial Code are met and the Holder satisfies any other reasonable
requirements of the Company or the Trustee, the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same
Series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then,
in the absence of written notice to the Company or a Trust Officer of the
Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same Series and
of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new 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 relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any Series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional obligation of the Company, whether or
not the destroyed, lost or stolen 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 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 Securities.
SECTION 2.09. Outstanding Securities. The Securities
outstanding at any time are all the Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and
those described in this Section as not outstanding. A Security does not
cease to be outstanding because the Company or an Affiliate of the
Company holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases
to be outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) has received on time from the Company and
holds on the Maturity of Securities of a Series money sufficient to pay
such Securities payable on that date, then on and after that date such
Securities of the Series cease to be outstanding and interest on them
ceases to accrue.
In determining whether the Holders of the requisite principal
amount of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes 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 6.02.
SECTION 2.10. Temporary Securities. Until Definitive
Securities are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities upon a Company Order.
Temporary Securities shall be substantially in the form of Definitive
Securities but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall
prepare and the Trustee upon request shall authenticate Definitive
Securities of the same Series and date of maturity in exchange for
temporary Securities. Until so exchanged, temporary Securities shall
have the same rights under this Indenture as the Definitive Securities.
SECTION 2.11. Cancellation. The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment. The Trustee
shall cancel all Securities surrendered for transfer, exchange, payment,
replacement or cancellation and shall dispose of such canceled Securities
according to its normal operating procedures (subject to the record
retention requirements of the Exchange Act) and deliver a certificate of
such destruction to the Company, unless the Company otherwise directs the
Trustee to deliver canceled Securities to the Company. The Company may
not issue new Securities to replace Securities that it has redeemed, paid
or delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Company defaults
in a payment of interest on a Series of Securities, it shall pay the
defaulted interest, plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the persons who are Holders of the
Series on a subsequent special record date. The Company shall fix such
record date and payment date. At least 30 days before the record date,
the Company shall mail to the Trustee and to each Holder of the Series a
notice that states the record date, the payment date and the amount of
interest to be paid. The Company may pay defaulted interest in any other
lawful manner.
SECTION 2.13. Global Securities.
(a) Terms of Securities. A supplemental indenture entered
into pursuant to a Board Resolution or an Officers' Certificate shall
establish whether the Securities of a Series shall be issued in whole or
in part in the form of one or more Global Securities and the Depositary
for such Global Security or Securities.
(b) Transfer and Exchange. Unless otherwise provided for
any particular Series of Securities pursuant to Section 2.02,
notwithstanding any provisions to the contrary contained in Section 2.07
of the Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.07 of the Indenture for Securities
registered in the names of Holders other than the Depositary for such
Security or its nominee only if (i) such Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time such Depositary ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company fails
to appoint a successor Depositary within 90 days of such event, (ii) the
Company executes and delivers to the Trustee an Officers' Certificate to
the effect that such Global Security shall be so exchangeable or (iii) an
Event of Default with respect to the Securities represented by such
Global Security shall have happened and be continuing. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the Depositary
shall direct in writing in an aggregate principal amount equal to the
principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.13(b) a Global Security
may not be transferred except as a whole by the Depositary with respect
to such Global Security to a nominee of such Depositary, by a nominee of
such Depositary to such Depositary or another nominee of such Depositary
or by the Depositary or any such nominee to a successor Depositary or a
nominee of such a successor Depositary with the prior written consent of
the Company.
(c) Legend. Unless otherwise provided for any particular
Series of Securities pursuant to Section 2.02, any Global Security issued
hereunder shall bear a legend in substantially the following form:
"THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED
IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE
INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.07 OF THE INDENTURE, (III) THIS GLOBAL
SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE ISSUER HEREOF"
(d) Acts of Holders. (i) Any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the
"Act" of Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(ii) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to such
officer the execution thereof. Where such execution is by a signer
acting in a capacity other than such signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such
signer's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems
sufficient.
(iii) The ownership of bearer securities may be proved by the
production of such bearer securities or by a certificate executed by any
trust company, bank, banker or other depositary, wherever situated, if
such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit
with such depositary, or exhibited to it, the bearer securities therein
described; or such facts may be proved by the certificate or affidavit of
the Person holding such bearer securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and
the Company may assume that such ownership of any bearer security
continues until (i) another such certificate or affidavit bearing a later
date issued in respect of the same bearer security is produced, (ii) such
bearer security is produced to the Trustee by some other Person,
(iii) such bearer security is surrendered in exchange for a registered
security or (iv) such bearer security is no longer outstanding. The
ownership of bearer securities may also be proved in any other manner
which the Trustee deems sufficient.
(iv) The ownership of registered securities shall be proved
by the register maintained by the Registrar.
(v) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the holder of every Security
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be
done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(vi) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to
do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite
proportion of outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the outstanding
Securities shall be computed as of such record date; provided that no
such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the
record date.
The Depositary, as a Holder, may appoint agents and otherwise
authorize Participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a
Holder is entitled to give or take under the Indenture.
(e) Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.02,
payment of the principal of and interest, if any, on any Global Security
shall be made to the Holder thereof.
(f) Consents, Declaration and Directions. Except as
provided in Section 2.13(e), the Company, the Trustee and any Agent shall
treat a person as the Holder of such principal amount of outstanding
Securities of such Series represented by a Global Security as shall be
specified in a written statement of the Depositary with respect to such
Global Security, for purposes of obtaining any consents, declarations,
waivers or directions required to be given by the Holders pursuant to
this Indenture.
SECTION 2.14. CUSIP Numbers. The Company in issuing the
Securities may use numbers assigned by the Committee on Uniform
Securities Identification Procedures ("CUSIP") and corresponding
International Securities Identification Numbers ("ISIN") (if then
generally in use) and, if so, the Trustee shall use CUSIP numbers in
notices of redemption as a convenience to Holders; provided, however,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as
contained in such notice and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such
notice shall not be affected by any defect in or omission of such
numbers. The Company shall promptly notify the Trustee of any change in
the CUSIP or ISIN numbers.
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. The Company may, with
respect to any Series of Securities, reserve the right to redeem and pay
the Series of Securities or may covenant to redeem and pay the Series of
Securities or any part thereof prior to the Stated Maturity thereof at
such time and on such terms as provided for in such Series of Securities.
If a Series of Securities is redeemable and the Company elects or is
obligated to redeem prior to the Stated Maturity thereof all or part of
the Series of Securities pursuant to the terms of such Securities, it
shall notify the Trustee in writing of the redemption date, the principal
amount of Securities of the Series to be redeemed and the redemption
price.
The Company shall give each notice to the Trustee provided
for in this Section at least 60 days before the redemption date unless
the Trustee consents to a shorter period. Such notice shall be
accompanied by an Officers' Certificate and an Opinion of Counsel from
the Company to the effect that such redemption will comply with the
conditions herein and the terms provided for such Series of Securities.
SECTION 3.02. Selection of Securities To Be Redeemed.
Unless otherwise provided for a particular Series of Securities pursuant
to Section 2.02, if fewer than all the Securities of a Series are to be
redeemed or purchased in an offer to purchase at any time, the Trustee
shall select the Securities to be redeemed or purchased pro rata or by
lot or by a method that complies with applicable legal and securities
exchange requirements, if any, and that the Trustee in its sole
discretion shall deem to be fair and appropriate and in accordance with
methods generally used at the time of selection by fiduciaries in similar
circumstances. The Trustee shall make the selection from outstanding
Securities not previously called for redemption. The Trustee may select
for redemption or purchase portions of the principal of Securities that
have denominations larger than $1,000. Securities and portions of them
the Trustee selects shall be in principal amounts of $1,000 or a whole
multiple of $1,000. Provisions of this Indenture that apply to
Securities called for redemption or purchase also apply to portions of
Securities called for redemption or purchase. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be
redeemed or purchased.
SECTION 3.03. Notice of Redemption. Unless otherwise
provided for a particular Series of Securities pursuant to Section 2.02,
at least 30 days but not more than 60 days before a date for redemption
of Securities, the Company shall mail a notice of redemption by first-
class mail to each Holder of Securities to be redeemed at such Xxxxxx's
registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts of the
particular Securities to be redeemed after determination by the
trustee pursuant to Section 3.02;
(6) that, unless the Company defaults in making such
redemption payment, interest on Securities (or portion thereof)
called for redemption ceases to accrue on and after the redemption
date;
(7) the paragraph of the Securities and/or provision of this
Indenture or any supplemental indenture pursuant to which the
Securities called for redemption are being redeemed; and
(8) the CUSIP or ISIN number, if any, printed on the
Securities being redeemed; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice
or printed on the Securities.
At the Company's request, the Trustee shall give the notice
of redemption in the Company's name and at the Company's expense. In
such event, the Company shall provide the Trustee with the information
required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice
of redemption is mailed, Securities called for redemption become due and
payable on the redemption date and at the redemption price stated in the
notice. Upon surrender to the Paying Agent, such Securities shall be
paid at the redemption price stated in the notice, plus accrued interest
to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the related Interest
Payment Date). Failure to give notice or any defect in the notice to any
Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if
the Company or a Subsidiary is the Paying Agent, shall segregate and hold
in trust) money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which have
been delivered by the Company to the Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender
of a Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate for the Holder (at the Company's expense) a
new Security equal in principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Company covenants
and agrees for the benefit of the Holders of each Series of Securities
that it shall promptly pay the principal of and interest on the
Securities of such Series on the dates and in the manner provided in the
Securities of such Series and in this Indenture. Principal and interest
shall be considered paid on the date due if on such date the Trustee or
the Paying Agent has received on time from the Company and holds in
accordance with this Indenture money sufficient to pay all principal and
interest then due.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
SECTION 4.02. Compliance Certificate. Each of the Parent
and the Company shall deliver to the Trustee within 120 days after the
end of its respective fiscal year an Officers' Certificate stating that
in the course of the performance by the signers of their duties as
Officers of Parent or the Company, respectively, they would normally have
knowledge of any Default and whether or not the signers know of any
Default that occurred during such period. If they do, the certificate
shall describe the Default, its status and what action the Parent or the
Company, as applicable, is taking or proposes to take with respect
thereto. Each of the Parent and Company also shall comply with TIA
section 314(a)(4).
SECTION 4.03. Further Instruments and Acts. Upon request of
the Trustee, the Parent and the Company will execute and deliver such
further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this
Indenture.
ARTICLE 5
Merger and Consolidation
SECTION 5.01. When Parent, Company or Subsidiary Guarantors
May Merge or Transfer Assets. (a) Unless otherwise provided for a
particular Series of Securities pursuant to Section 2.02, neither the
Parent nor the Company shall consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of
transactions, directly or indirectly, all or substantially all its assets
to, any Person, unless:
(1) the resulting, surviving or transferee Person (the
"Successor Company", in the case of the Company, or the "Successor
Parent", in the case of the Parent) shall be a Person organized and
existing under the laws of the United States of America, any State
thereof or the District of Columbia and the Successor Company (if
not the Company) or the Successor Parent (if not the Parent) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Parent or the Company, as applicable, under
the Securities and this Indenture;
(2) immediately after giving pro forma effect to such
transaction (and treating any indebtedness or sale and leaseback
transaction which becomes an obligation of the Successor Company,
the Successor Parent or any Subsidiary as a result of such
transaction as having been incurred at the time of such
transaction), no Default shall have occurred and be continuing;
(3) the Parent or the Company, as applicable, shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer
and such supplemental indenture (if any) comply with this
Indenture; and
(4) the Parent or the Company, as applicable, shall have
delivered to the Trustee an Opinion of Counsel to the effect that
the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such transaction and will be
subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
transaction had not occurred.
For purposes of this Section 5.01, the sale, lease,
conveyance, assignment, transfer or other disposition of all or
substantially all of the properties and assets of one or more
Subsidiaries of the Parent or the Company, which properties and assets,
if held by the Parent or the Company, as the case may be, instead of such
Subsidiaries would constitute all or substantially all of the properties
and assets of the Parent or the Company, as the case may be, on a
consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of Parent or the Company,
as applicable.
The Successor Parent and the Successor Company shall be the
successor to the Parent or the Company, as applicable, and shall succeed
to, and be substituted for, and may exercise every right and power of,
the Parent or the Company, as applicable, under this Indenture, and the
predecessor Parent or the Company, as applicable, except in the case of a
lease, shall be released from the obligation to pay the principal of and
interest on the Securities.
(b) Unless otherwise provided for a particular Series of
Securities pursuant to Section 2.02, neither Parent nor the Company shall
permit any Subsidiary Guarantor to consolidate with or merge with or
into, or convey, transfer or lease, in one transaction or series of
transactions, all or substantially all of its assets to any Person
unless: (1) except upon the occurrence of one of the events referred to
clause (i), (ii) or (iii) of Section 10.06, the resulting, surviving or
transferee Person (if not such Subsidiary) shall be a Person organized
and existing under the laws of the jurisdiction under which such
Subsidiary was organized or under the laws of the United States of
America, or any State thereof or the District of Columbia, and such
Person shall expressly assume all the obligations of such Subsidiary, if
any, under its Subsidiary Guaranty; (2) immediately after giving effect
to such transaction or transactions on a pro forma basis (and treating
any indebtedness which becomes an obligation of the resulting, surviving
or transferee Person as a result of such transaction as having been
issued by such Person at the time of such transaction), no Default shall
have occurred and be continuing; and (3) the Company delivers to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and such Guaranty Agreement,
if any, complies with this Indenture and all provisions applicable to
particular Series of Securities.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. Unless otherwise provided
for a particular Series of Securities pursuant to Section 2.02, each of
the following constitutes an "Event of Default" with respect to each
Series of Securities:
(1) the Company defaults in any payment of interest on any
Security when the same becomes due and payable, and such default
continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
any Security when the same becomes due and payable at its stated
maturity, upon optional redemption, upon declaration of
acceleration or otherwise;
(3) the Company or any Guarantor fails to comply with
Section 5.01;
(4) the Company or any Guarantor fails to comply with any of
its agreements in the Securities or this Indenture (other than
those referred to in clause (1), (2)or (3) above) and such failure
continues for 90 days after the notice specified below;
(5) the Parent (if a Guarantor) or the Company pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it or
for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Parent (if a Guarantor)
or the Company in an involuntary case;
(B) appoints a Custodian of the Parent (if a Guarantor)
or the Company or for any substantial part of its property;
or
(C) orders the winding up or liquidation of the Parent
(if a Guarantor) or the Company;
or any similar relief is granted under any foreign laws and the
order or decree remains unstayed and in effect for 60 days.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or State law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.
Unless otherwise provided for a particular Series of
Securities pursuant to Section 2.02, a Default under clause (4) is not an
Event of Default with respect to a Series of Securities until the Trustee
or the holders of at least 25% in principal amount of the outstanding
Securities of such Series notify the Company of the Default and the
Company does not cure such Default within the time specified after
receipt of such notice. Such notice must specify the Default, demand
that it be remedied and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days
after the occurrence thereof, written notice in the form of an Officers'
Certificate of any event which with the giving of notice or the lapse of
time would become an Event of Default under clause (4), its status and
what action the Company is taking or proposes to take with respect
thereto.
SECTION 6.02. Acceleration. If an Event of Default with
respect to any Series of Securities (other than an Event of Default
specified in Section 6.01(5)) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount
of the outstanding Securities of such Series by notice to the Company and
the Trustee, may declare the principal amount of (or, in the case of
Original Issue Discount Securities of that Series, the portion thereof
specified in terms of such Security), premium, if any, and accrued and
unpaid interest on all the Securities of such Series to be due and
payable. Upon such a declaration, such principal and interest shall be
due and payable immediately. If an Event of Default with respect to any
Series of Securities specified in Section 6.01(5) occurs, the principal
amount of (or, in the case of Original Issue Discount Securities of that
Series, the portion thereof specified in the terms of such Security),
premium, if any, and interest on all the Securities of such Series shall
ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in principal amount of the
Securities of any Series by notice to the Trustee may rescind an
acceleration of the Securities of such Series and its consequences if the
rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
the principal amount of (or, in the case of Original Issue Discount
Securities of that Series, the portion thereof specified in the terms of
such Security), premium, if any, or interest on the Securities of such
Series that has become due solely because of acceleration. No such
rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default with
respect to any Series of Securities occurs and 45
is continuing, the Trustee may pursue any available remedy to collect the
payment of the principal amount of (or, in the case of Original Issue
Discount Securities of that Series, the portion thereby specified in the
terms of such Security), premium, if any, or interest on the Securities
of that Series or to enforce the performance of any provision of the
Securities of that Series or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities of a Series or does not produce any of them
in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event
of Default with respect to any Series of Securities shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Securities of any Series by notice to
the Trustee may waive an existing Default and its consequences except
(i) a Default in the payment of the principal amount of (or, in the case
of Original Issue Discount Securities of that Series, the portion thereby
specified in the terms of such Security), premium, if any, or interest on
a Security of that Series, (ii) a Default arising from the failure to
redeem or purchase any Security of that Series when required pursuant to
the terms of this Indenture or (iii) a Default in respect of a provision
that under Section 9.02 cannot be amended without the consent of each
Holder of Securities of that Series affected. When a Default is waived,
it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a
majority in principal amount of the outstanding Securities of any Series
may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee with respect to that Series. However, the
Trustee may refuse to follow any direction that conflicts with law or
this Indenture or, subject to Section 7.01, that the Trustee determines
is unduly prejudicial to the rights of any other Holder of Securities of
that Series or that would expose the Trustee to personal liability;
provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction.
Prior to taking any action hereunder, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all
losses and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. Except to enforce the
right to receive payment of the principal amount of (or, in the case of
Original Issue Discount Securities, the portion thereby specified in the
terms of such Security), premium, if any, or interest on a Security of
any Series when due, no Holder of a Security of such Series may pursue
any remedy with respect to this Indenture or the Securities of that
Series unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default with respect to that Series is continuing;
(2) the Holders of at least 25% in principal amount of the
outstanding Securities of that Series make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or
indemnity reasonably satisfactory to it against any loss, liability
or expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
outstanding Securities of that Series do not give the Trustee a
direction inconsistent with the request during such 60-day period.
A Securityholder of any Series may not use this Indenture to
prejudice the rights of another Securityholder of that Series or to
obtain a preference or priority over another Securityholder of that
Series.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of the principal amount of (or, in the case of
Original Issue Discount Securities, the portion thereby specified in the
terms of such Security), premium, if any, and interest on the Securities
held by such Holder, on or after the respective due dates expressed in
the Securities, or to bring suit for the enforcement of any payment with
respect to the Securities, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and
the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relative to the
Company, its creditors or its property and, unless prohibited by law or
applicable regulations, may vote on behalf of and as directed by the
Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the
Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other
amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money
or property pursuant to this Article 6 (including Section 6.08) with
respect to any Series of Securities, it shall pay out the money or
property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities of that Series for principal (or, in the case of
Original Issue Discount Securities, the portion thereby specified
in the terms of such Security), premium, if any, and interest,
ratably, without preference or priority of any kind, according to
the amounts due and payable on the Securities for principal (or, in
the case of Original Issue Discount Securities, the portion thereby
specified in the terms of such Security), premium, if any, and
interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days
before such record date, the Company shall mail to each Securityholder
and the Trustee a notice that states the record date, the payment date
and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a
court in its discretion may require the filing by any party litigant in
the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07 or a suit by Holders of more
than 10% in principal amount of the outstanding Securities of any Series.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company
(to the extent it may lawfully do so) shall not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and shall not hinder, delay or impede the execution of any
power herein granted to the Trustee or any Holder, but shall suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of
Default with respect to any Series of Securities has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it
by this Indenture and use the same degree of care and skill in their
exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Xxxxxx's own affairs.
(b) Except during the continuance of an Event of Default
with respect to any Series of Securities:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
other duties, covenants or obligations shall be implied or read
into this Indenture otherwise or inferred against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine
the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(e) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in
the performance of any of its duties hereunder or in the exercise of any
of its rights or powers, if it shall have reasonable grounds to believe
that repayment of such funds or adequate indemnity against such risk or
liability satisfactory to it is not reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section and to the
provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely
on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on the Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Trustee's
conduct does not constitute wilful misconduct or negligence.
(e) At the Company's expense, the Trustee may consult with
counsel, and the advice or opinion of counsel with respect to legal
matters relating to this Indenture and the Securities shall be full and
complete authorization and protection from liability in respect to any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
SECTION 7.03. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee. Any Service Agent,
Paying Agent, Registrar, co-registrar or co-paying agent may do the same
with like rights. However, the Trustee must comply with Sections 7.10
and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not
be responsible for and makes no representation as to the validity or
adequacy of this Indenture, the Securities or any offering materials, it
shall not be accountable for the Company's use of the proceeds from the
Securities, and it shall not be responsible for any statement of the
Company in the Indenture or in any document issued in connection with the
sale of the Securities or in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default with respect
to Securities of any Series occurs and is continuing and if it is known
to the Trustee, the Trustee shall mail to each Securityholder of that
Series notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any
Security (including payments pursuant to the redemption provisions of
such Security, if any), the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is not opposed to the interests of
Securityholders.
SECTION 7.06. Reports by Trustee to Holders. Unless
otherwise provided for a particular Series of Securities pursuant to
Section 2.02, as promptly as practicable after each May 15, beginning
with May 15, 2003, and in any event prior to July 15 in each year, the
Trustee shall mail to each Securityholder a brief report dated as of
May 15 that complies with TIA section 313(a). The Trustee also shall comply
with TIA section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if
any) on which the Securities are listed. The Company agrees to notify
the Trustee promptly whenever the Securities become listed on any stock
exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time reasonable compensation for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred or made by it in connection with this Indenture or any
matter relating to it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Company shall
indemnify the Trustee against any and all loss, liability or expense
(including attorneys' fees) it may incur in connection with the
administration of this trust and the performance of its duties hereunder.
The Trustee shall notify the Company promptly of any matter for which it
may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. If a claim
is brought against the Trustee the Company shall defend the claim and the
Trustee may have separate counsel and the Company shall pay the fees and
expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee
through the Trustee's own wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee other than money or property
received from the Company and held in trust to pay principal of and
interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs
expenses after the occurrence of a Default specified in Section 6.01(5)
or (6), the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may
resign at any time with respect to any Series of Securities by so
notifying the Company not less than 60 days prior to the effective date
of such resignation. The Holders of a majority in principal amount of
the outstanding Securities of any Series may remove the Trustee with
respect to that Series by so notifying the Trustee and may appoint a
successor Trustee with respect to that Series. The Company shall remove
the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the outstanding Securities
of any Series and such Holders do not reasonably promptly appoint a
successor Trustee within 30 days from the Company's receipt of notice
from the Trustee of such resignation, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in each such event being
referred to herein as the "Retiring Trustee"), the Company shall promptly
appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective,
and the successor Trustee shall have all the rights, powers and duties of
the Trustee under this Indenture. The successor Trustee with respect to
any Series of Securities shall mail a notice of its succession to the
outstanding Securityholders of that Series. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.07.
If a successor Trustee with respect to any Series of
Securities does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee or the Holders of 10% in
principal amount of the outstanding Securities of that Series may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee with respect to any Series of Securities fails
to comply with Section 7.10, any outstanding Securityholder of that
Series may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue
for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Xxxxxx. If the Trustee
consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor
Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts
created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee, and
deliver such Securities so authenticated; and in case at that time any of
the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor to the Trustee; and
in all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the
certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA section 310(a). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The
Trustee shall comply with TIA section 310(b); provided, however, that there
shall be excluded from the operation of TIA section 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims
Against Company. The Trustee shall comply with TIA section 311(a), excluding
any creditor relationship listed in TIA section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA section 311(a) to the extent
indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on
Securities; Defeasance. (a) When (1) the Company delivers to the
Trustee all outstanding Securities of a Series (other than Securities
replaced pursuant to Section 2.08) for cancellation or (2) all
outstanding Securities of a Series have become due and payable, whether
at maturity or on a redemption date as a result of the mailing of a
notice of redemption pursuant to Article 3 hereof and the Company
irrevocably deposits with the Trustee funds sufficient to pay at maturity
or upon redemption all outstanding Securities of that Series, including
interest thereon to maturity or such redemption date (other than
Securities replaced pursuant to Section 2.08), and if in either case the
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, as it relates to that Series, subject to
Section 8.01(c), cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (1) all its obligations under the Securities of any
Series and this Indenture with respect to such Series ("legal defeasance
option") or (2) its obligations with respect to any Series of Securities
under the covenants contained in the supplemental indenture establishing
the terms of such Series and the operation of Sections 6.01(4) and the
limitations contained in Sections 5.01(b) with respect to such Series
("covenant defeasance option"). The Company may exercise its legal
defeasance option with respect to any Series of Securities
notwithstanding its prior exercise of its covenant defeasance option with
respect to that Series.
If the Company exercises its legal defeasance option with
respect to any Series of Securities, payment of the Securities of such
Series may not be accelerated because of an Event of Default with respect
thereto. If the Company exercises its covenant defeasance option with
respect to any Series of Securities, payment of the Securities of such
Series may not be accelerated because of an Event of Default specified in
Sections 6.01(4) or because of the failure of the Company to comply with
Section 5.01(b). If the Company exercises its legal defeasance option or
its covenant defeasance option with respect to any Series of Securities,
each Subsidiary Guarantor, if any, shall be released from all its
obligations with respect to its Subsidiary Guaranty with respect to that
Series.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company terminates, subject to
Section 8.06.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07 and 7.08
and in this Article 8, with respect to each Series of Securities shall
survive until all the Securities of that Series have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05
shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option
with respect to any Series of Securities only if:
(1) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations for the payment of
principal of and interest on all the Securities of that Series to
maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when due
and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will
provide cash at such times and in such amounts as will be
sufficient to pay principal and interest when due on all the
Securities of that Series to maturity or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Sections 6.01(5) or 6.01(6)
occurs which is continuing at the end of the 123-day period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or if it does so constitute, is qualified as, a
regulated investment company under the Investment Company Act of
1940;
(6) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (B) since the date of
this Indenture there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the
Securityholders of that Series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit
and legal defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such deposit and legal defeasance had not
occurred;
(7) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Securityholders of that Series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had
not occurred; and
(8) the Company delivers to the Trustee an Opinion of Counsel
in the jurisdiction of organization of the Company (if other than
the United States) to the effect that (A) Holders of that Series
will not recognize income, gain or loss for income tax purposes of
such jurisdiction as a result of such deposit or defeasance or
both, and (B) will be subject to income tax of such jurisdiction on
the same amounts, and in the same manner and at the same times as
would have been the case if such deposit or defeasance or both had
not occurred; and
(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the
Securities as contemplated by this Article 8 have been complied
with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future
date in accordance with Article 3.
SECTION 8.03. Application of Trust Money. (a) The Trustee
shall hold in trust any money or U.S. Government Obligations deposited
with it pursuant to this Article 8. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent
and in accordance with this Indenture to the payment of principal of and
interest on the Securities.
(b) During the term of this Indenture, the Trustee shall
have no obligation to invest or reinvest any money, U.S. Government
Obligations or other securities deposited or received hereunder, except
as specifically directed by the Company in writing. Any interest or
other income received on such U.S. Government Obligations or other
securities deposited or received hereunder, or from investment and
reinvestment of the money, U.S. Government Obligations or other
securities deposited or received hereunder shall become part of the
property held hereunder and any losses incurred on such investment and
reinvestment of such property shall be debited against the property held
hereunder.
SECTION 8.04. Repayment to Company. The Trustee and the
Paying Agent shall promptly turn over to the Company upon request any
excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held
by them for the payment of principal or interest that remains unclaimed
for two years, and, thereafter, Securityholders entitled to the money
must look to the Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against deposited money, U.S.
Government Obligations or the principal and interest received on
such money or U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent
is unable to apply any money or U.S. Government Obligations in accordance
with this Article 8 by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the applicable Series of Securities
and the Subsidiary Guarantors' obligations under their respective
Subsidiary Guaranties shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article 8; provided,
however, that, if the Company has made any payment of interest on or
principal of any Securities of that Series because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the money or U.S.
Government Obligations deposited with and held by the Trustee or Paying
Agent.
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders. The Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the
Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to
or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of
the Code;
(4) in the case of subordinated Securities, to make any
change in the provisions of this Indenture or any supplemental
indenture relating to subordination that would limit or terminate
the benefits available to any holder of Senior Debt (as defined in
the applicable Board Resolution, supplemental indenture hereto or
Officers' Certificate related to such Series of subordinated
Securities) under such provisions (but only if each such holder of
Senior Debt under such provisions consents to such change);
(5) to add guarantees with respect to the Securities,
including any Subsidiary Guaranties, or to secure the Securities;
(6) to add to the covenants of the Company or any Guarantor
for the benefit of the Holders of all or any Series of Securities,
to add Events of Default or to surrender any right or power herein
conferred upon the Company or any Guarantor;
(7) to comply with any requirement of the SEC in connection
with qualifying, or maintaining the qualification of, this
Indenture under the TIA;
(8) to make any change that does not adversely affect the
rights of any Securityholder;
(9) to evidence the acceptance of appointment of a successor
Trustee;
(10) to add to, change, or eliminate any of the provisions of
this Indenture with respect to one or more Series of Securities, so
long as any such addition, change or elimination not otherwise
permitted under this Indenture shall (A) neither apply to any
Security of any Series created prior to the execution of such
supplemental indenture and entitled to the benefit of such
provision nor modify the rights of the Holders of any such Security
with respect to the benefit of such provision or (B) become
effective only when there is no such prior Security outstanding;
(11) to evidence and provide for the acceptance of appointment
by a successor or separate Trustee with respect to the Securities
of one or more Series and to add to or change any of the provisions
of this Indenture as shall be necessary or desirable to provide for
or facilitate the administration of this Indenture by more than one
Trustee; or
(12) to establish the form or terms of Securities and coupons
of any Series pursuant to Article 2 and to change the procedures
for transferring and exchanging Securities of any Series so long as
such change does not adversely affect the holders of any
outstanding Securities (except as required by applicable securities
laws).
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or
any defect therein, shall not impair or affect the validity of an
amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company, the
Guarantors and the Trustee may amend this Indenture or the Securities of
any Series with the written consent of the Holders of at least a majority
in principal amount of the Securities of each Series then outstanding
(including consents obtained in connection with a tender offer or
exchange for the Securities) affected by such amendment. However,
without the consent of each Securityholder affected thereby, an amendment
may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal amount of or extend the final
maturity of any Security;
(4) reduce the amount payable upon the redemption of any
Security or change the time at which any Security may be redeemed
in accordance with Article 3;
(5) make any Security payable in money other than that stated
in the Security;
(6) make any changes in the ranking or priority of any
Security that would adversely affect the Securityholders;
(7) make any change in Section 6.04 or 6.05 or the second
sentence of this Section;
(8) make any change in the Parent Guaranty or any Subsidiary
Guaranty that would adversely affect the Securityholders; or
(9) subject to Section 6.06, impair the right of any Holder
of a Security of any Series to institute suit for the payment of
principal amount of (or in the case of Original Issue Discount
Securities, the portion thereby specified in the terms of such
Security), premium, if any, or interest on a Security of such
Series when due.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment under this Section becomes effective, the
Company shall mail to all affected Securityholders a notice briefly
describing such amendment. The failure to give such notice to all such
Securityholders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA
as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers.
A consent to an amendment or a waiver by a Holder of a Security shall
bind the Holder and every subsequent Holder of that Security or portion
of the Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent or waiver is not made on the
Security. However, any such Holder or subsequent Holder may revoke the
consent or waiver as to such Holder's Security or portion of the Security
if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective. After an amendment or waiver
becomes effective, it shall bind every Securityholder of that particular
Series. An amendment or waiver becomes effective upon the execution of
such amendment or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders of a particular
Series entitled to give their consent or take any other action described
above or required or permitted to be taken pursuant to this Indenture or
any applicable supplemental indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who
were Securityholders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such consent,
to revoke any consent previously given or to take any such action,
whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 120 days
after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the
Holder of the Security to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security regarding the changed terms
and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall
issue and execute and the Trustee shall authenticate and deliver a new
Security that reflects the changed terms. Failure to make the
appropriate notation or to issue, execute, authenticate or deliver a new
Security shall not affect the validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment, consent or waiver authorized pursuant to this Article
9 if the amendment consent or waiver does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may but need not sign it. In signing such amendment, consent
or waiver the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Officers' Certificate and an Opinion
of Counsel stating that such amendment consent or waiver is authorized or
permitted by this Indenture or the applicable supplemental indenture.
SECTION 9.07. Payment for Consent. Neither the Company nor
any Affiliate of the Company shall, directly or indirectly, pay or cause
to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver
or amendment of any of the terms or provisions of this Indenture or any
Subsidiary Guaranty or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to
amend in the time frame set forth in solicitation documents relating to
such consent, waiver or agreement.
ARTICLE 10
Guaranties
SECTION 10.01. Guaranties. If Guaranties have been provided
for any particular Series of Securities pursuant to Section 2.02, each
applicable Guarantor hereby unconditionally and irrevocably guarantees,
jointly and severally, to each Holder of Securities of such Series and to
the Trustee and its successors and assigns (a) the full and punctual
payment of principal and interest on the Securities of such Series when
due, whether at maturity, by acceleration, by redemption or otherwise,
and all other monetary obligations of the Company under this Indenture
and the Securities of such Series and (b) the full and punctual
performance within applicable grace periods of all other obligations of
the Company under this Indenture with respect to the Securities of such
Series and under the Securities of such Series (all the foregoing being
hereinafter collectively called the "Guaranteed Obligations"). Each
Guarantor further agrees that the Guaranteed Obligations may be extended
or renewed, in whole or in part, without notice or further assent from
such Guarantor and that such Guarantor will remain bound under this
Article 10 notwithstanding any extension or renewal of any Guaranteed
Obligation.
In addition, if Guaranties have been provided pursuant to
Section 2.02 for a particular Series of Securities, each applicable
Guarantor waives (1) presentation to, demand of, payment from and protest
to the Company of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment and (2) notice of any default under the
Securities of such Series or the Guaranteed Obligations. The obligations
of each Guarantor hereunder shall not be affected by (a) the failure of
any Holder or the Trustee to assert any claim or demand or to enforce any
right or remedy against the Company or any other Person under this
Indenture, the Securities or any other agreement or otherwise; (b) any
extension or renewal of any thereof; (c) any rescission, waiver,
amendment or modification of any of the terms or provisions of this
Indenture, the Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Guaranteed Obligations
or any of them; (e) the failure of any Holder or the Trustee to exercise
any right or remedy against any other guarantor of the Guaranteed
Obligations; or (f) any change in the ownership of such Guarantor.
If Guaranties have been provided for a particular Series of
Securities pursuant to Section 2.02, each applicable Guarantor further
agrees that its Guaranty constitutes a guarantee of payment, performance
and compliance when due (and not a guarantee of collection) and waives
any right to require that any resort be had by any Holder or the Trustee
to any security held for payment of the Guaranteed Obligations.
If Guaranties have been provided for a particular Series of
Securities pursuant to Section 2.02, and except as expressly set forth in
Sections 8.01(b), 10.02 and 10.06, the obligations of each applicable
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to
any defense of setoff, counterclaim, recoupment or termination whatsoever
or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of
the foregoing, the obligations of each Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any remedy
under this Indenture, the Securities or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the obligations, or by any
other act or thing or omission or delay to do any other act or thing
which may or might in any manner or to any extent vary the risk of such
Guarantor or would otherwise operate as a discharge of such Guarantor as
a matter of law or equity.
If Guaranties have been provided for a particular Series of
Securities pursuant to Section 2.02, each applicable Guarantor further
agrees that its Guaranteed Obligations herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment,
or any part thereof, of principal of or interest on any Guaranteed
Obligation is rescinded or must otherwise be restored by any Holder or
the Trustee upon the bankruptcy or reorganization of the Company or
otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity
against any Guarantor by virtue hereof, upon the failure of the Company
to pay the principal of or interest on any Guaranteed Obligation when and
as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform or comply with any other
Guaranteed Obligation, each Guarantor hereby promises to and shall, upon
receipt of written demand by the Trustee, forthwith pay, or cause to be
paid, in cash, to the Holders or the Trustee an amount equal to the sum
of (1) the unpaid amount of such Guaranteed Obligations, (2) accrued and
unpaid interest on such Guaranteed Obligations (but only to the extent
not prohibited by law) and (3) all other monetary Guaranteed Obligations
of the Company to the Holders and the Trustee.
Each Guarantor agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the
Guaranteed Obligations may be accelerated as provided in Article 6 for
the purposes of such Guarantor's Guaranty herein, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the Guaranteed Obligations, and (y) in the event of any
declaration of acceleration of such Obligations as provided in Article 6,
such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purposes of
this Section.
If Guaranties have been provided for a particular Series of
Securities pursuant to Section 2.02, each applicable Guarantor also
agrees to pay any and all costs and expenses (including reasonable fees
and expenses of attorneys and other agents) incurred by the Trustee or
any Holder in enforcing any rights under this Section.
SECTION 10.02. Limitation on Liability. Any term or
provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the Guaranteed Obligations by any Subsidiary
Guarantor shall not exceed the maximum amount that can be hereby
guaranteed without rendering this Indenture, as it relates to such
Guarantor, or the applicable supplemental indenture voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer
or similar laws affecting the rights of creditors generally.
SECTION 10.03. Successors and Assigns. If Guaranties have
been provided for a particular Series of Securities pursuant to
Section 2.02, this Article 10 shall be binding upon each Guarantor so
providing a Guaranty with respect to such Series and its successors and
assigns and shall inure to the benefit of the successors and assigns of
the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Indenture and in such Series
of Securities shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.04. No Waiver. Neither a failure nor a delay on
the part of either the Trustee or the Holders in exercising any right,
power or privilege under this Article 10 shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any right, power or privilege. The rights,
remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies
or benefits which either may have under this Article 10 or this Indenture
at law, in equity, by statute or otherwise.
SECTION 10.05. Modification. No modification, amendment or
waiver of any provision of this Article 10, nor the consent to any
departure by any Guarantor therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Trustee, and then
such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on any
Guarantor in any case shall entitle such Guarantor to any other or
further notice or demand in the same, similar or other circumstances.
SECTION 10.06. Release of Subsidiary Guarantor. Upon
(i) the sale or other disposition (including by way of consolidation or
merger), in one transaction or a series of related transactions, of a
majority of the total voting power of the capital stock or other
interests of a Subsidiary Guarantor or (ii) the sale or other disposition
of all or substantially all the assets of such Subsidiary Guarantor or if
(iii) at any time when no Default has occurred and is continuing, such
Subsidiary Guarantor no longer guarantees any debt of the Parent, the
Company or any other Subsidiary Guarantor, such Subsidiary Guarantor
shall be deemed released from all obligations under this Article 10
without any further action required on the part of the Trustee or any
Holder; provided, however, that, in each of cases (i) and (ii) above,
such sale or disposition is to a Person other than the Parent, the
Company or any of their respective Affiliates. At the request of the
Company, the Trustee shall execute and deliver an appropriate instrument
evidencing such release.
SECTION 10.07. Contribution. If Guaranties have been
provided for a particular Series of Securities pursuant to Section 2.02,
each Subsidiary Guarantor that makes a payment under its Subsidiary
Guaranty shall be entitled upon payment in full of all Guaranteed
Obligations with respect to such Series to a contribution from each other
Subsidiary Guarantor so providing a Subsidiary Guaranty with respect to
such Series of Securities in an amount equal to such other Subsidiary
Guarantor's pro rata portion of such payment based on the respective net
assets of all the Subsidiary Guarantors so providing a Subsidiary
Guaranty with respect to such Series of Securities at the time of such
payment determined in accordance with GAAP.
ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
SECTION 11.02. Notices. Any notice or communication shall
be in writing and delivered in person or mailed by first-class mail
addressed as follows:
if to the Company or any Guarantor:
Coors Brewing Company
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Legal Officer
if to the Trustee:
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
c/o DB Services New Jersey Inc.
000 Xxxxx One - MS JCY 03-0603
Jersey City, NJ 07311
Attention: Corporate Trust and Agency Services
The Company, any Guarantor or the Trustee by notice to the
other may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it
appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to
other Securityholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee
receives it.
SECTION 11.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, any Guarantor, the Trustee, the Registrar and
anyone else shall have the protection of TIA section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee
to take or refrain from taking any action under this Indenture, the
Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such 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 or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 11.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the
Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company shall be
disregarded and deemed not to be outstanding, except that, for the
purpose of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities which the
Trustee knows are so owned shall be so disregarded. Also, subject to the
foregoing, only Securities outstanding at the time shall be considered in
any such determination.
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable
rules for their functions.
SECTION 11.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not
required to be open in the State of New York. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening
period. If a regular record date is a Legal Holiday, the record date
shall not be affected.
SECTION 11.09. Governing Law. This Indenture and the
Securities shall be governed by, and construed in accordance with, the
laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of the
laws of another jurisdiction would be required thereby.
SECTION 11.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company or any
Guarantor shall not have any liability for any obligations of the Company
under the Securities or this Indenture or of such Guarantor under its
Guaranty or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security,
each Securityholder waives and releases all such liability. The waiver
and release shall be part of the consideration for the issue of the
Securities.
SECTION 11.11. Successors. All agreements of the Company
and the Guarantors in this Indenture and the Securities shall bind their
respective successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 11.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
SECTION 11.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections
of this Indenture have been inserted for convenience of reference only,
are not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
COORS BREWING COMPANY,
by
________________________
Name:
Title:
GUARANTORS
XXXXXX XXXXX COMPANY
by
________________________
Name:
Title:
COORS DISTRIBUTING COMPANY
by
________________________
Name:
Title:
COORS INTERNATIONAL MARKET
DEVELOPMENT, L.L.L.P.
by
________________________
Name:
Title:
COORS WORLDWIDE, INC.
by
________________________
Name:
Title:
COORS CARIBE, INC.
by
________________________
Name:
Title:
TRUSTEE
DEUTSCHE BANK TRUST COMPANY
AMERICAS
by
Name:
Title:
