EXHIBIT 4.1
RESIDENTIAL CAPITAL CORPORATION,
ANY GUARANTORS PARTY HERETO,
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS TRUSTEE
INDENTURE
DATED AS OF JUNE 24, 2005
DEBT SECURITIES
TABLE OF CONTENTS
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ARTICLE ONE. DEFINITIONS.................................................................. 1
Section 1.01. Definitions................................................................. 1
Section 1.02. Notice to Securityholders................................................... 10
ARTICLE TWO. ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES.................... 11
Section 2.01. Amount Unlimited; Issuable in Series........................................ 11
Section 2.02. Form of Trustee's Certificate of Authentication............................. 13
Section 2.03. Form, Execution, Authentication, Delivery and Dating of Securities.......... 13
Section 2.04. Denominations; Record Date.................................................. 15
Section 2.05. Exchange and Registration of Transfer of Securities......................... 16
Section 2.06. Temporary Securities........................................................ 17
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities............................. 18
Section 2.08. Cancellation................................................................ 19
Section 2.09. Computation of Interest..................................................... 19
Section 2.10. Securities in Global Form................................................... 19
Section 2.11. Medium-Term Securities...................................................... 20
ARTICLE THREE. REDEMPTION OF SECURITIES..................................................... 20
Section 3.01. Redemption of Securities; Applicability of Article.......................... 20
Section 3.02. Notice of Redemption; Selection of Securities............................... 20
Section 3.03. Payment of Securities Called for Redemption................................. 22
ARTICLE FOUR. PARTICULAR COVENANTS OF THE COMPANY.......................................... 22
Section 4.01. Payment of Principal, Premium, Interest and Additional Amounts.............. 22
Section 4.02. Offices for Notices and Payments, etc....................................... 23
Section 4.03. Provisions as to Paying Agent............................................... 24
Section 4.04. Luxembourg Publications..................................................... 24
Section 4.05. Statement by Officers as to Default......................................... 25
Section 4.06. Existence................................................................... 25
Section 4.07. Limitation on Liens......................................................... 25
Section 4.08. Guarantees of Significant Subsidiaries...................................... 25
ARTICLE FIVE. SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.............. 26
Section 5.01. Securityholder Lists........................................................ 26
Section 5.02. Preservation and Disclosure of Lists........................................ 26
Section 5.03. Reports by the Company...................................................... 28
Section 5.04. Reports by the Trustee...................................................... 28
TABLE OF CONTENTS
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ARTICLE SIX. REMEDIES ON DEFAULT.......................................................... 29
Section 6.01. Events of Default........................................................... 29
Section 6.02. Payment of Securities on Default; Suit Therefor............................. 31
Section 6.03. Application of Moneys Collected by Trustee.................................. 33
Section 6.04. Proceedings by Securityholders.............................................. 33
Section 6.05. Remedies Cumulative and Continuing.......................................... 34
Section 6.06. Direction of Proceedings.................................................... 35
Section 6.07. Notice of Defaults.......................................................... 35
Section 6.08. Undertaking to Pay Costs.................................................... 36
ARTICLE SEVEN. CONCERNING THE TRUSTEE....................................................... 36
Section 7.01. Duties and Responsibilities of Trustee...................................... 36
Section 7.02. Reliance on Documents, Opinions, etc........................................ 37
Section 7.03. No Responsibility for Recitals, etc......................................... 38
Section 7.04. Ownership of Securities or Coupons.......................................... 38
Section 7.05. Moneys to be Held in Trust.................................................. 38
Section 7.06. Compensation and Expenses of Trustee........................................ 38
Section 7.07. Officers' Certificate as Evidence........................................... 39
Section 7.08. Conflicting Interest of Trustee............................................. 39
Section 7.09. Eligibility of Trustee...................................................... 39
Section 7.10. Resignation or Removal of Trustee........................................... 40
Section 7.11. Acceptance by Successor Trustee............................................. 41
Section 7.12. Successor by Merger, etc.................................................... 42
Section 7.13. Limitations on Rights of Trustee as Creditor................................ 42
ARTICLE EIGHT. CONCERNING THE SECURITYHOLDERS............................................... 42
Section 8.01. Action by Securityholders................................................... 42
Section 8.02. Proof of Execution by Securityholders....................................... 43
Section 8.03. Who Are Deemed Absolute Owners.............................................. 43
Section 8.04. Company-Owned Securities Disregarded........................................ 44
Section 8.05. Revocation of Consents; Future Securityholders Bound........................ 44
Section 8.06. Securities in a Foreign Currency............................................ 44
ARTICLE NINE. SECURITYHOLDERS' MEETINGS.................................................... 45
Section 9.01. Purposes of Meetings........................................................ 45
Section 9.02. Call of Meetings by Trustee................................................. 45
Section 9.03. Call of Meetings by Company or Securityholders.............................. 46
Section 9.04. Qualification for Voting.................................................... 46
Section 9.05. Regulations................................................................. 46
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TABLE OF CONTENTS
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Section 9.06. Voting...................................................................... 47
ARTICLE TEN. SUPPLEMENTAL INDENTURES...................................................... 47
Section 10.01. Supplemental Indentures Without Consent of Securityholders.................. 47
Section 10.02. Supplemental Indentures with Consent of Securityholders..................... 48
Section 10.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures...... 50
Section 10.04. Notation on Securities...................................................... 50
ARTICLE ELEVEN. CONSOLIDATION, MERGER, SALE OR CONVEYANCE.................................... 50
Section 11.01. Company May Consolidate, etc., on Certain Terms............................. 50
Section 11.02. Successor Corporation Substituted........................................... 51
Section 11.03. Reliance by Trustee on Officers' Certificate and Opinion of Counsel......... 51
ARTICLE TWELVE. SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.................... 51
Section 12.01. Discharge of Indenture...................................................... 51
Section 12.02. Satisfaction, Discharge and Defeasance of Securities of any Series.......... 52
Section 12.03. Deposited Moneys to be Held in Trust by Trustee............................. 54
Section 12.04. Paying Agent to Repay Moneys Held........................................... 54
Section 12.05. Return of Unclaimed Moneys.................................................. 54
ARTICLE THIRTEEN. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.............. 54
Section 13.01. Indenture and Securities Solely Corporate Obligations....................... 54
ARTICLE FOURTEEN. GUARANTEE.................................................................... 55
Section 14.01. Unconditional Guarantee..................................................... 55
Section 14.02. Severability................................................................ 56
Section 14.03. Limitation of Guarantor's Liability......................................... 56
Section 14.04. Release of Guarantor........................................................ 56
Section 14.05. Contribution................................................................ 56
Section 14.06. Waiver of Subrogation....................................................... 57
Section 14.07. Execution of Guarantee...................................................... 57
Section 14.08. Waiver of Stay, Extension or Usury Laws..................................... 58
ARTICLE FIFTEEN. MISCELLANEOUS PROVISIONS..................................................... 58
Section 15.01. Benefits of Indenture Restricted to Parties and Securityholders............. 58
Section 15.02. Provisions Binding on Company's Successors.................................. 58
Section 15.03. Addresses for Notices, etc.................................................. 58
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Section 15.04. Evidence of Compliance with Conditions Precedent............................ 59
Section 15.05. Legal Holidays.............................................................. 59
Section 15.06. Trust Indenture Act to Control.............................................. 59
Section 15.07. Execution in Counterparts................................................... 59
Section 15.08. New York Contract........................................................... 59
Section 15.09. Judgment Currency........................................................... 60
Section 15.10. Severability of Provisions.................................................. 60
Section 15.11. Company Released From Indenture Requirements Under Certain Circumstances.... 60
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THIS INDENTURE, dated as of the day of June 24, 2005 between RESIDENTIAL
CAPITAL CORPORATION, a corporation duly organized and existing under the laws of
the State of Delaware (hereinafter sometimes called the "COMPANY"), the
Guarantors (as defined herein), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a
banking corporation duly incorporated and existing under the laws of the State
of New York, as trustee hereunder (hereinafter sometimes called the "TRUSTEE,"
which term shall include any successor trustee appointed pursuant to Article
Seven).
WITNESSETH:
WHEREAS, the Company deems it necessary to issue from time to time for its
lawful purposes securities (hereinafter called the "SECURITIES" or, in the
singular, "SECURITY") evidencing its unsecured indebtedness and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of the Securities in one or more series, unlimited as to principal
amount, to bear such rates of interest, to mature at such time or times and to
have such other provisions as shall be fixed as hereinafter provided; and
WHEREAS, the Company represents that all acts and things necessary to
constitute these presents a valid indenture and agreement according to its
terms, have been done and performed, and the execution of this Indenture has in
all respects been duly authorized, and the Company, in the exercise of legal
rights and power in it vested, is executing this Indenture;
NOW, THEREFORE:
In order to declare the terms and conditions upon which the Securities are
authenticated, issued and received, and in consideration of the premises, of the
purchase and acceptance of the Securities by the Holders thereof and of the sum
of one dollar to it duly paid by the Trustee at the execution of these presents,
the receipt whereof is hereby acknowledged, the Company covenants and agrees
with the Trustee, for the equal and proportionate benefit of the respective
Holders from time to time of the Securities, as follows:
ARTICLE ONE.
Definitions.
Section 1.01. Definitions. The terms defined in this Section (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act or which are
by reference therein defined in the Securities Act shall have the meanings
(except as herein otherwise expressly provided or unless the context otherwise
clearly requires) assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture as originally executed.
The words "HEREIN," "HEREOF" and "HEREUNDER" and other words of similar import
refer to this Indenture as a whole, including the Exhibits to this instrument,
and not to any particular article, Section or other subdivision. Certain terms
used wholly or principally within an Article of this Indenture may be defined in
that Article.
ADDITIONAL AMOUNTS:
The term "ADDITIONAL AMOUNTS" shall mean any additional amounts which are
required by a Security or by or pursuant to a Board Resolution under
circumstances specified therein, to be paid by the Company in respect of certain
taxes, assessments or governmental charges imposed on certain Holders of
Securities and which are owing to such Holders of Securities.
ADJUSTED NET ASSETS:
The term "ADJUSTED NET ASSETS" shall have the meaning specified in Section
14.05.
APPLICANTS:
The term "APPLICANTS" shall have the meaning specified in Section 5.02(b).
AUTHORIZED NEWSPAPER:
The term "AUTHORIZED NEWSPAPER" shall mean a newspaper in an official
language of the country of publication of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof which
is made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
BOARD OF DIRECTORS:
The term "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company or any committee established by the Board of Directors.
BOARD RESOLUTION:
The term "BOARD RESOLUTION" shall mean a resolution certified by the
Secretary or Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
BUSINESS DAY:
The term "BUSINESS DAY" shall mean, with respect to any Security, a day
(other than a Saturday or Sunday) that in the city (or in any of the cities, if
more than one) in which amounts are payable as specified on the face of the form
of such Security, is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive order to
close.
CAPITAL LEASE:
The term "CAPITAL LEASE" shall mean, with respect to any Subsidiary, any
lease of (or other agreement conveying the right to use) any real or personal
property by such Subsidiary
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that, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of such Subsidiary.
COMPANY:
The term "COMPANY" shall mean the Person named as the "COMPANY" in the
first paragraph of this instrument until a successor company shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"COMPANY" shall mean such successor company.
COMPANY ORDER:
The term "COMPANY ORDER" shall mean any request, order or confirmation
signed by a Person designated pursuant to Section 2.03 to the Trustee, which may
be transmitted by telecopy or in writing.
CORPORATE TRUST OFFICE:
The term "CORPORATE TRUST OFFICE" means the office of the Trustee in New
York, New York, at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, except that, with respect to presentation of
Securities for payment or registration of transfers and exchanges and the
location of the Security Registrar, such term means the office or agency of the
Trustee in said city at which at any particular time its corporate agency
business shall be conducted, which at the date hereof is located at 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Trust and Securities
Services.
CORPORATION:
The term "CORPORATION" shall mean a corporation, limited liability
company, a statutory trust, a limited partnership or similar limited liability
entity.
COUPON:
The term "COUPON" shall mean any interest coupon appertaining to a
Security.
COUPON SECURITY:
The term "COUPON SECURITY" shall mean any Security authenticated and
delivered with one or more Coupons appertaining thereto.
DEFAULTS:
The term "DEFAULTS" shall have the meaning specified in Section 6.07.
DEPOSITORY:
The term "DEPOSITORY" shall mean, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as
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Depository by the Company pursuant to Section 2.01 until a successor Depository
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "DEPOSITORY" shall mean or include each Person who is then a
Depository hereunder, and if at any time there is more than one such Person,
"DEPOSITORY" as used with respect to the Securities of any such series shall
mean the Depository with respect to the Securities of that series.
EVENT OF DEFAULT:
The term "EVENT OF DEFAULT" shall mean any event specified as such in
Section 6.01.
EXCHANGE ACT:
The term "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
EXCLUDED SIGNIFICANT SUBSIDIARY:
The term "EXCLUDED SIGNIFICANT SUBSIDIARY" shall mean (a) GMAC Bank, (b)
any Foreign Subsidiary, (c) any Significant Subsidiary that is effectively
restricted from guaranteeing the Securities by law or regulation, or (d) any
Significant Subsidiary that is effectively restricted from guaranteeing the
Securities by its charter, so long as such Significant Subsidiary referred to in
this clause (d) is required to make dividends of all cash legally available
therefor that is not required to pay current obligations of such Significant
Subsidiary; provided, that no Significant Subsidiary under (a), (b), (c) and (d)
shall be deemed an Excluded Significant Subsidiary if it guarantees any
unsecured indebtedness of the Company or any Guarantor for borrowed money,
whether or not evidenced by bonds, debentures, notes or similar instruments, or
any guarantee of any such indebtedness.
FOREIGN SUBSIDIARY:
The term "FOREIGN SUBSIDIARY" shall mean a Subsidiary which is a
controlled foreign corporation within the meaning of Section 957 of the Internal
Revenue Code of 1986, as amended (unless substantially all the Subsidiary's
assets are located, and substantially all its operations are conducted, within
one of the 50 states of the United States of America or any jurisdiction that
hereinafter becomes a state).
FUNDING GUARANTOR:
The term "FUNDING GUARANTOR" shall have the meaning specified in Section
14.05.
GAAP:
The term "GAAP" shall mean United States generally accepted accounting
principles as in effect from time to time and as applied by the Company in the
preparation of its financial statements.
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GLOBAL SECURITY:
The term "GLOBAL SECURITY" shall mean a Registered Security or an
Unregistered Security evidencing all or part of a series of Securities issued to
the Depository for such series in accordance with Section 2.03.
GUARANTEE:
The term "GUARANTEE" shall have the meaning specified in Section 14.01.
GUARANTOR:
The term "GUARANTOR" shall mean any of the guarantors signatory hereto or
any other Subsidiary that becomes a Guarantor pursuant to Section 4.08; provided
that any Person constituting a Guarantor as described above shall cease to
constitute a Guarantor when its Guarantee is released in accordance with the
terms of Section 14.04.
HOLDER:
The terms "HOLDER," "HOLDER OF SECURITIES," "SECURITYHOLDER" or other
similar terms, shall mean (a) in the case of any Registered Security, the Person
in whose name at the time such Security is registered on the registration books
kept for that purpose in accordance with the terms hereof, and (b) in the case
of any Unregistered Security, the bearer of such Security.
INDEBTEDNESS:
The term "INDEBTEDNESS" shall mean, with respect to any Person, without
duplication: (i) all indebtedness of such Person for borrowed money, whether or
not evidenced by bonds, debentures, notes or similar instruments; (ii) all
obligations of such Person as lessee under Capital Leases that have been or
should be recorded as liabilities on a balance sheet of such Person in
accordance with GAAP and all obligations of such Person as lessee under any
so-called synthetic, off-balance sheet or tax retention lease; (iii) all
obligations of such Person to pay the deferred purchase price of property or
services (excluding trade accounts payable in the ordinary course of business);
(iv) all indebtedness secured by a lien on the property of such Person, whether
or not such indebtedness shall have been assumed by such Person; (v) all
obligations, contingent or otherwise, with respect to the face amount of all
letters of credit and banker's acceptances issued for the account of such
Person; (vi) all Suretyship Liabilities of such Person in respect of obligations
of others of the type described in clauses (i) through (v) above; and (vii) all
indebtedness of any partnership of which such Person is a general partner, to
the extent of such liability.
INDENTURE:
The term "INDENTURE" shall mean this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
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INTERCOMPANY SECURITIES:
The term "INTERCOMPANY SECURITIES" shall mean any capital stock of any
Significant Subsidiary or Indebtedness of any Significant Subsidiary owed to the
Company or another Subsidiary.
INTEREST PAYMENT DATE:
The term "INTEREST PAYMENT DATE" when used with respect to any Security,
means the stated maturity of an installment of interest on such Security.
ISSUE DATE:
The term "ISSUE DATE" shall mean, with respect to Securities of any
tranche, whether evidenced by a Registered Security or an Unregistered Security,
the date such Securities are authenticated pursuant to Section 2.03.
JUDGMENT CURRENCY:
The term "JUDGMENT CURRENCY" shall have the meaning specified in Section
15.09.
MATURITY DATE:
The term "MATURITY DATE" when used with respect to any Security, shall
mean the stated maturity of the Security.
NEW YORK BANKING DAY:
The term "NEW YORK BANKING DAY" shall have the meaning specified in
Section 15.09.
OFFICERS' CERTIFICATE:
The term "OFFICERS' CERTIFICATE" shall mean a certificate signed by the
Chairman of the Board of Directors or the President or any Chief Executive
Officer or any Chief Financial Officer or any Executive Vice President or any
Senior Vice President or any Vice President or any Managing Director or the
Treasurer or the Assistant Treasurer and by the Secretary or any Assistant
Secretary of the Company.
OFFICER:
The term "OFFICER" shall mean the Chairman of the Board of Directors or
the President or any Chief Executive Officer or any Chief Financial Officer or
any Executive Vice President or any Senior Vice President or any Vice President
or any Managing Director or the Treasurer or the Assistant Treasurer or the
Secretary or any Assistant Secretary of the Company.
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OPINION OF COUNSEL:
The term "OPINION OF COUNSEL" shall mean an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company or any
Subsidiary, which opinion shall be reasonably acceptable to the Trustee.
ORIGINAL ISSUE DISCOUNT SECURITIES:
The term "ORIGINAL ISSUE DISCOUNT SECURITIES" shall mean any Securities
which are initially sold at a discount from the principal amount thereof and
which provide upon Event of Default for declaration of an amount less than the
principal amount thereof to be due and payable upon acceleration thereof.
OUTSTANDING:
The term "OUTSTANDING" when used with reference to Securities, shall,
subject to the provisions of Section 7.08 and Section 8.04, mean, as of any
particular time, all Securities authenticated and delivered by the Trustee under
this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent), provided, that if such Securities are to be redeemed prior to
the Maturity Date thereof, notice of such redemption shall have been given as in
Article Three provided, or provisions satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities in lieu of and in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Article
Two, unless proof satisfactory to the Trustee is presented that any such
Securities are held by bona fide Holders in due course.
PAYING AGENT:
The term "PAYING AGENT" shall mean initially Deutsche Bank Trust Company
Americas, and subsequently, any other paying agent appointed by the Company from
time to time in respect of the Securities.
PERSON:
The term "PERSON" shall mean any individual, Corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
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PLACE OF PAYMENT:
The term "PLACE OF PAYMENT," when used with respect to the Securities of
any series, means the place or places where the principal of (and premium, if
any) and interest, if any, (and Additional Amounts, if any) on the Securities of
that series are payable.
RECORD DATE:
The term "RECORD DATE" shall have the meaning specified in Section 2.04.
REGISTERED SECURITY:
The term "REGISTERED SECURITY" shall mean any Security registered on the
Security registration books of the Company.
REGULAR RECORD DATE:
The term "REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Sections 2.01 and 2.04.
REQUIRED CURRENCY:
The term "REQUIRED CURRENCY" shall have the meaning specified in Section
15.09.
RESPONSIBLE OFFICER:
The term "RESPONSIBLE OFFICER" when used with respect to the Trustee shall
mean any officer assigned by the Trustee to administer its corporate trust
matters.
SECURITIES ACT:
The term "SECURITIES ACT" shall mean the United States Securities Act of
1933, as amended.
SECURITIES AND SECURITY:
The terms "SECURITIES" and "SECURITY" shall have the respective meanings
specified in the recitals.
SECURITY REGISTER AND SECURITY REGISTRAR:
The term "SECURITY REGISTER" and "SECURITY REGISTRAR" shall have the
respective meanings specified in Section 2.05.
SIGNIFICANT SUBSIDIARY:
The term "SIGNIFICANT SUBSIDIARY" shall mean any Subsidiary of the Company
which meets any of the following conditions:
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(1) The Company's and its other subsidiaries' proportionate share of the
total assets (after intercompany eliminations) of the subsidiary exceeds 10
percent of the total assets of the Company and its subsidiaries on a
consolidated basis as of the end of the most recently completed fiscal year; or
(2) The subsidiary's income from continuing operations before income
taxes, extraordinary items and cumulative effect of a change in accounting
principle exceeds 10 percent of such income of the Company and its subsidiaries
on a consolidated basis for the most recently completed fiscal year.
For purposes of this definition a subsidiary shall mean a Person which is
controlled by the Company directly or indirectly through one or more
intermediaries. For purposes of making any determinations or calculations, this
definition shall be interpreted in accordance with the rules and instructions of
Rule 1-02 of Regulation S-X of the Securities Act as in effect on the date
hereof.
SUBSIDIARY:
The term "SUBSIDIARY" shall mean any corporation, partnership, limited
liability company, association or other entity of which at least a majority of
the outstanding stock or other interest having by the terms thereof ordinary
voting power to elect a majority of the board of directors, managers or trustees
of such corporation, partnership, limited liability company, association or
other entity (irrespective of whether or not at the time stock or other interest
of any other class or classes of such Person shall have or might have voting
power by reason of the happening of any contingency) is at the time owned by the
Company, or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
SURETYSHIP LIABILITY:
The term "SURETYSHIP LIABILITY" shall mean any agreement, undertaking or
arrangement by which any Subsidiary guarantees, endorses or otherwise becomes or
is contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to or otherwise to
invest in a debtor, or otherwise to assure a creditor against loss) any
indebtedness, obligation or other liability of any other Subsidiary (other than
by endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other
Subsidiary. The amount of any Subsidiary's obligation in respect of any
Suretyship Liability shall (subject to any limitation set forth therein) be
deemed to be the principal amount of the debt, obligation or other liability
supported thereby.
TRUSTEE
The term "TRUSTEE" shall have the meaning specified in the preamble.
TRUST INDENTURE ACT:
The term "TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939,
as amended.
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UNITED STATES:
The term "UNITED STATES" shall mean the United States of America
(including the States and the District of Columbia) and its possessions
(including the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands).
UNITED STATES PERSON:
The term "UNITED STATES PERSON" has the meaning given to it by the
Internal Revenue Code of 1986, as amended, and regulations thereunder, including
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D).
UNREGISTERED SECURITY:
The term "UNREGISTERED SECURITY" shall mean any Security other than a
Registered Security.
U.S. DOLLAR:
The term "U.S. DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
Section 1.02. Notice to Securityholders. Except as otherwise expressly
provided herein, where this Indenture provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given if in writing
and mailed, first class, postage prepaid, to each Holder at such Holder's
address as it appears in the Securities Register, not later than the latest
date, and not earlier than the earliest date prescribed for such notice.
Neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Security shall affect the sufficiency of
such notice with respect to other Holders of Securities.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
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ARTICLE TWO.
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES.
Section 2.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the designation of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.05, 2.06, 2.07, 3.02 or
10.04 and except for any Securities which, pursuant to Section 2.03, are
deemed never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal of the Securities of
the series is payable and the manner of payment of such principal; the
rate or rates, which may be fixed or variable, at which the Securities of
the series shall bear interest, if any, and if the rate or rates are
variable, the manner of calculation thereof, the circumstances (if any)
under which the rate or rates may be adjusted, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which such
interest shall be payable, the manner of payment of such interest and, in
the case of Registered Securities, the Regular Record Date for the
determination of Holders of such Securities to whom interest is payable on
any Interest Payment Date;
(4) the place or places (in addition to such place or places
specified in this Indenture) where the principal of (and premium, if any),
interest, if any, and Additional Amounts, if any, on Securities of the
series shall be payable;
(5) the right, if any, of the Company to redeem Securities, in whole
or in part, at its option and the period or periods within which, the
price or prices at which and the terms and conditions upon which
Securities of the series may be redeemed pursuant to any sinking fund or
otherwise;
(6) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(7) if other than U.S. Dollars, the currency or currencies, or units
based on or related to foreign currencies, in which the Securities of the
series shall be denominated and in which payments of principal of
(premium, if any), interest, if any, on and any other
11
amounts payable with respect to such Securities shall or may be payable; or in
the manner in which such currency, currencies or composite currencies will be
determined; and if the principal of (and premium, if any) and interest, if any,
on the Securities of such series are to be payable, at the election of the
Company or a holder thereof, in a currency or currencies, including composite
currencies, other than that or those in which the Securities are stated to be
payable, the currency or currencies in which payment of the principal of (and
premium, if any) and interest, if any, on Securities of such series as to which
such election is made shall be payable, and the periods within which and the
terms and conditions upon which such election is to be made;
(8) if the amount of principal of or any premium or interest on the
Securities of the series may be determined with reference to an index based on a
currency or currencies other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(9) the denominations in which Securities of the series shall be issuable,
if other than U.S. $l,000 or integral multiples thereof with respect to
Registered Securities and denominations of U.S. $1,000 and U.S. $5,000 for
Unregistered Securities;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof or which the Trustee shall
be entitled to claim pursuant to Section 6.02;
(11) whether the Securities of the series will be issuable as Registered
Securities or Unregistered Securities (with or without Coupons), or both, any
restrictions applicable to the offer, sale or delivery of Unregistered
Securities and, if other than as provided for in Section 2.05, the terms upon
which Unregistered Securities of the series may be exchanged for Registered
Securities of such series and vice versa; and whether the Securities of the
series shall be issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depository for such Global Security or
Securities and whether any Global Securities of the series are to be issuable
initially in temporary form and whether any Global Securities of the series are
to be issuable in definitive form with or without Coupons and, if so, whether
beneficial owners of interests in any such definitive Global Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which and the place
or places where any such exchanges may occur, if other than in the manner
provided in Section 2.05;
(12) whether and under what circumstances the Company will pay Additional
Amounts on the Securities of the series held by a Person who is not a U.S.
person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts;
(13) the provisions, if any, for the defeasance of the Securities of the
series;
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(14) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying agents,
transfer agents, registrars or any other agents with respect to the
Security of such series;
(16) any deletions from, modifications of or additions to the Events
of Default with respect to any of such Securities; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
(i) as to denomination, (ii) that Securities of any series may be issuable as
either Registered Securities or Unregistered Securities and (iii) as may
otherwise be provided in or pursuant to such Board Resolution and set forth in
such Officers' Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or any Assistant Secretary of the Company and
delivered to the Trustee at the same time as or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in the following form:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Deutsche Bank Trust
Company Americas,
as Trustee,
By: __________________________
Authorized Signatory
Section 2.03. Form, Execution, Authentication, Delivery and Dating of
Securities. The Securities of each series and the Coupons, if any, to be
attached thereto, shall be in the forms approved from time to time by or
pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of
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this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Each Security and Coupon shall be executed on behalf of the Company by its
Chairman of the Board of Directors or any Vice Chairman of the Board of
Directors or its President or any Chief Executive Officer or any Chief Financial
Officer or any Executive Vice President or any Senior Vice President or any Vice
President and by its Treasurer or any Assistant Treasurer or its Secretary or
any Assistant Secretary. Such signatures may be the manual or facsimile
signatures of the present or any future such officers.
Each Security and Coupon bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Security, or
the Security to which such Coupon appertains. At any time and from time to time
after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company and, in the case of Coupon
Securities, having attached thereto appropriate Coupons, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities or Coupons of the series have been established in or pursuant to
one or more Board Resolutions as permitted by this Section and Section 2.01, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities or Coupons has been established by or
pursuant to Board Resolution as permitted by Section 2.01, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 2.01, that such terms have been
established in conformity with the provisions of this Indenture; and
(c) that each such Security and Coupon, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If such form or terms has been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and the Indenture or otherwise in a manner which
is not reasonably acceptable to the Trustee.
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Every Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in or pursuant to the
Board Resolution or supplemental indenture referred to in Section 2.01 or, if no
such terms are specified, the date of its original issuance.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been duly authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 2.08 together with a written statement
(which need not comply with Section 15.04 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
If the Company shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in whole or in part in the form of a
Global Security, then the Company shall execute and the Trustee shall in
accordance with this Section and the Company Order with respect to such series
authenticate and deliver the Global Security that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal amount of
outstanding Securities of such series to be represented by the Global Security,
(ii) shall be registered, if in registered form, in the name of the Depository
for such Global Security or the nominee of such Depository, and (iii) shall be
delivered by the Trustee to such Depository or pursuant to such Depository's
instructions.
Each Depository designated pursuant to Section 2.01 for a Global Security
in registered form must, at the time of its designation and at all times while
it serves as Depository, be a clearing agency registered under the Exchange Act
and any other applicable statute or regulation.
Section 2.04. Denominations; Record Date. The Securities shall be issuable
as Registered Securities or Unregistered Securities in such denominations as may
be specified as contemplated in Section 2.01. In the absence of any such
specification with respect to any series, such Securities shall be issuable in
the denominations contemplated by Section 2.01.
The term "RECORD DATE" as used with respect to an Interest Payment Date
(except a date for payment of defaulted interest) shall mean such day or days as
shall be specified in the terms of the Registered Securities of any particular
series as contemplated by Section 2.01; provided, however, that in the absence
of any such provisions with respect to any series, such term shall mean (1) the
last day of the calendar month next preceding such Interest Payment Date if such
Interest Payment Date is the fifteenth day of a calendar month; or (2) the
fifteenth day of a calendar month next preceding such Interest Payment Date if
such Interest Payment Date is the first day of the calendar month.
15
The Person in whose name any Registered Security is registered at the
close of business on the Regular Record Date with respect to an Interest Payment
Date shall be entitled to receive the interest payable and Additional Amounts,
if any, payable on such Interest Payment Date notwithstanding the cancellation
of such Registered Security upon any transfer or exchange thereof subsequent to
such Regular Record Date and prior to such Interest Payment Date; provided,
however, that if and to the extent the Company shall default in the payment of
the interest and Additional Amounts, if any, due on such Interest Payment Date,
such defaulted interest and Additional Amounts, if any, shall be paid to the
Persons in whose names outstanding Registered Securities are registered on a
subsequent Record Date established by notice given by mail by or on behalf of
the Company to the Holders of Securities of the series in default not less than
fifteen days preceding such subsequent Record Date, such Record Date to be not
less than five days preceding the date of payment of such defaulted interest.
Section 2.05. Exchange and Registration of Transfer of Securities.
Registered Securities of any series may be exchanged for a like aggregate
principal amount of Registered Securities of other authorized denominations of
such series. Registered Securities to be exchanged shall be surrendered at the
office or agency to be designated and maintained by the Company for such purpose
in the Borough of Manhattan, The City of New York, in accordance with the
provisions of Section 4.02, and the Company shall execute and register and the
Trustee shall authenticate and deliver in exchange therefor the Registered
Security or Registered Securities which the Holder making the exchange shall be
entitled to receive.
If the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.01, at
the option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series of any authorized
denominations and of a like aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that shall
be maintained for such purpose in accordance with Section 4.02, with, in the
case of Unregistered Securities that are Coupon Securities, all unmatured
Coupons and all matured Coupons in default thereto appertaining. At the option
of the Holder thereof, if Unregistered Securities of any series are issued in
more than one authorized denomination, except as otherwise specified pursuant to
Section 2.01, such Unregistered Securities may be exchanged for Unregistered
Securities of such series of other authorized denominations and of a like
aggregate principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.02 or as specified pursuant to Section 2.01, with,
in the case of Unregistered Securities that are Coupon Securities, all unmatured
Coupons and all matured Coupons in default thereto appertaining. Unless
otherwise specified pursuant to Section 2.01, Registered Securities of any
series may not be exchanged for Unregistered Securities of such series. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
The Company (or its designated agent (the "SECURITY REGISTRAR")) shall
keep, at such office or agency, a Security Register (the "SECURITY REGISTER") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall register Securities and shall register the transfer of Registered
Securities as in this Article Two provided. The Security Register shall be in
written form or in any other form capable of being converted into written
16
form within a reasonable time. At all reasonable times the Security Register
shall be open for inspection by the Trustee. Upon due presentment for
registration of transfer of any Registered Security of a particular series at
such office or agency, the Company shall execute and the Company or the Security
Registrar shall register and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Registered Security or Registered
Securities of such series for an equal aggregate principal amount.
Unregistered Securities (except for any temporary bearer Securities) and
Coupons shall be transferable by delivery.
All Securities presented for registration of transfer or for exchange,
redemption or payment, as the case may be, shall (if so required by the Company
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Registered Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
The Company shall not be required to exchange or register a transfer of
(a) any Registered Securities of any series for a period of fifteen days next
preceding any selection of such Registered Securities of such series to be
redeemed, or (b) any Security of any such series selected for redemption except
in the case of any such series to be redeemed in part, the portion thereof not
to be so redeemed.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, neither the Company nor the Trustee (which shall
rely on an Officers' Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Company
(including the inability of the Company to deduct from its income, as computed
for Federal income tax purposes, the interest payable on any Securities) under
then applicable United States Federal income tax laws.
Section 2.06. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute and upon receipt of a Company
Order the Trustee shall authenticate and deliver temporary Securities of such
series (printed or lithographed). Temporary Securities of any series shall be
issuable in any authorized denominations, and in the form approved from time to
time by or pursuant to a Board Resolution but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Every temporary Security shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unnecessary delay the Company shall execute and shall
furnish definitive Securities of such series and thereupon any or all temporary
Registered Securities of such series may be surrendered in exchange therefor
without charge at the office or agency to be designated and maintained by the
Company for such purpose in the Borough of Manhattan, The City of New York, in
accordance with the provisions of Section 4.02
17
and in the case of Unregistered Securities at any agency maintained by the
Company for such purpose as specified pursuant to Section 2.01, and the Trustee
shall authenticate and deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and in the case of such Securities that are Coupon
Securities, having attached thereto the appropriate Coupons. Until so exchanged
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series. The provisions of
this Section 2.06 are subject to any restrictions or limitations on the issue
and delivery of temporary Unregistered Securities of any series that may be
established pursuant to Section 2.01 (including any provision that Unregistered
Securities of such series initially be issued in the form of a single global
Unregistered Security to be delivered to a depositary or agency of the Company
located outside the United States and the procedures pursuant to which
definitive Unregistered Securities of such series would be issued in exchange
for such temporary global Unregistered Security).
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In case any
temporary or definitive Security of any series or, in the case of a Coupon
Security, any Coupon appertaining thereto, shall become mutilated or be
destroyed, lost or stolen, the Company in the case of a mutilated Security or
Coupon shall, and in the case of a lost, stolen or destroyed Security or Coupon
may, in its discretion, execute, and upon receipt of a Company Order the Trustee
shall authenticate and deliver, a new Security of the same series as the
mutilated, destroyed, lost or stolen Security or, in the case of a Coupon
Security, a new Coupon Security of the same series as the mutilated, destroyed,
lost or stolen Coupon Security or, in the case of a Coupon, a new Coupon
Security of the same series as the Coupon Security to which such mutilated,
destroyed, lost or stolen Coupon appertains, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen or in exchange for the Coupon Security to which such mutilated,
destroyed, lost or stolen Coupon appertains, with all appurtenant Coupons not
destroyed, lost or stolen. In every case the applicant for a substituted
Security or Coupon shall furnish to the Company and to the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon, as the case may be, and
of the ownership thereof. The Trustee may authenticate any such substituted
Security and deliver the same upon the written request or authorization of any
officer of the Company. Upon the issuance of any substituted Security or Coupon,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses connected therewith and in addition a further sum not exceeding ten
dollars for each Security so issued in substitution. In case any Security or
Coupon which has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substituted
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security or Coupon) if the applicant for such
payment shall furnish the Company and the Trustee with such security or
indemnity as they may require to save them harmless and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
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Every substituted Security with, in the case of any such Security that is
a Coupon Security, its Coupons, issued pursuant to the provisions of this
Section by virtue of the fact that any Security or Coupon is destroyed, lost or
stolen shall, with respect to such Security or Coupon, constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security or Coupon shall be found at any time, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities, and the Coupons appertaining thereto, duly issued hereunder.
All Securities and any Coupons appertaining thereto shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and Coupons appertaining thereto and shall, to the extent
permitted by law, preclude any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.08. Cancellation. All Securities surrendered for payment,
redemption, exchange or registration of transfer, and all Coupons surrendered
for payment as the case may be, shall, if surrendered to the Company or any
agent of the Company or of the Trustee, be delivered to the Trustee and promptly
cancelled by it or, if surrendered to the Trustee, be cancelled by it, and no
Securities or Coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall destroy
cancelled Securities and Coupons and deliver a certificate of destruction to the
Company.
Section 2.09. Computation of Interest. Except as otherwise specified as
contemplated by Section 2.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 2.10. Securities in Global Form. If Securities of a series are
issuable in global form, as specified as contemplated by Section 2.01, then,
notwithstanding clause (9) of Section 2.01 and the provisions of Section 2.04,
such Security shall represent such of the outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of outstanding Securities from time to time endorsed thereon
and that the aggregate amount of outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
of outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 2.03 or Section 2.06. Subject to the provisions of Section
2.03 and, if applicable, Section 2.06, the Trustee shall deliver and redeliver
any Security in definitive global bearer form in the manner and upon written
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 2.03 or 2.06
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 15.04 and need not be
accompanied by an Opinion of Counsel. The beneficial owner of a Security
represented by a definitive Global Security in bearer form may, upon no less
than 30 days written notice to the Trustee, given by the beneficial owner
through a Depository, exchange its interest in such definitive Global Security
for a definitive Unregistered
19
Security or Securities, or a definitive Registered Security or Securities, of
any authorized denomination, subject to the rules and regulations of such
Depository and its members. No individual definitive Unregistered Security will
be delivered within the United States nor to any United States person (except as
permitted under Treas. Reg. Section 1.163-5(c)(2)(i)(D)(3)).
The provisions of the last sentence of the third to the last paragraph of
Section 2.03 shall apply to any Security represented by a Security in global
form if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Security in global form together with written
instructions (which need not comply with Section 15.04 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of the third to the last paragraph
of Section 2.03.
Unless otherwise specified as contemplated by Section 2.01, payment of
principal of and any premium and any interest on any Security in definitive
global form shall be made to the Person or Persons specified therein.
Section 2.11. Medium-Term Securities. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary to deliver the Company Order, Officers'
Certificate, supplemental indenture or Opinion of Counsel otherwise required
pursuant to Sections 2.01, 2.03, 2.06 and 15.04 at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
An Officers' Certificate or supplemental indenture, delivered pursuant to
this Section 2.11 in the circumstances set forth in the preceding paragraph may
provide that Securities which are the subject thereof will be authenticated and
delivered by the Trustee on original issue from time to time upon the written
order of Persons designated in such Officers' Certificate or supplemental
indenture and that such Persons are authorized to determine, consistent with
such Officers' Certificate or any applicable supplemental indenture such terms
and conditions of said Securities as are specified in such Officers' Certificate
or supplemental indenture, provided that the foregoing procedure is acceptable
to the Trustee.
ARTICLE THREE.
REDEMPTION OF SECURITIES.
Section 3.01. Redemption of Securities; Applicability of Article.
Redemption of Securities of any series as permitted or required by the terms
thereof shall be made in accordance with such terms and this Article; provided,
however, that if any provision of any series of Securities shall conflict with
any provision of this Article, the provision of such series of Securities shall
govern.
The notice date for a redemption of Securities shall mean the date on
which notice of such redemption is given in accordance with the provisions of
Section 3.02 hereof.
Section 3.02. Notice of Redemption; Selection of Securities. The election
of the Company to redeem any Securities shall be evidenced by an Officers'
Certificate. In case the Company shall desire to exercise the right to redeem
all, or, as the case may be, any part of a
20
series of Securities pursuant to the terms and provisions applicable to such
series, it shall fix a date for redemption and shall mail a notice of such
redemption at least thirty and not more than sixty days prior to the date fixed
for redemption to the Holders of the Securities of such series which are
Registered Securities to be redeemed as a whole or in part at their last
addresses as the same appear on the Security Register. Such mailing shall be by
prepaid first class mail. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder shall have received such notice. In any case, failure to give notice
by mail, or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security of such series.
Notice of redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names and addresses with
the Trustee as described in Section 5.02(a)(iii), shall be given by mailing
notice of such redemption, by first class mail, postage prepaid, at least thirty
days and not more than sixty days prior to the date fixed for redemption, to
such Holders at such addresses as were so furnished to the Trustee (and, in the
case of any such notice given by the Company, the Trustee shall make such
information available to the Company for such purpose). Notice of redemption to
any other Holder of an Unregistered Security of such series shall be published
in an Authorized Newspaper in the Borough of Manhattan, The City of New York and
in an Authorized Newspaper in London (and, if required by Section 4.04, in an
Authorized Newspaper in Luxembourg), in each case, once in each of two
successive calendar weeks, the first publication to be not less than thirty nor
more than sixty days prior to the date fixed for redemption. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder shall have received such notice. In any
case, failure to give notice by mail, or any defect in the notice to the Holder
of any Security of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other
Security of such series.
Each such notice of redemption shall specify the provisions of such
Securities under which such redemption is made, that the conditions precedent,
if any, to such redemption have occurred, shall describe the same and the date
fixed for redemption, the redemption price at which such Securities are to be
redeemed, the Place of Payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Coupon Securities, of all
Coupons appertaining thereto maturing after the date fixed for redemption, that
interest and Additional Amounts, if any, accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest, if any, thereon or on the portions thereof to be redeemed will
cease to accrue. If less than all of the Securities of a series are to be
redeemed any notice of redemption published in an Authorized Newspaper shall
specify the numbers of the Securities to be redeemed. In case any Security is to
be redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that upon surrender
of such Security, a new Security or Securities in principal amount equal to the
unredeemed portion thereof will be issued of the same series.
At least one Business Day prior to the redemption date specified in the
notice of redemption given for Unregistered Securities as provided in this
Section and on or prior to the redemption date specified in the notice of
redemption given for all Securities other than Unregistered Securities, the
Company will deposit in trust with the Trustee or with one or more
21
paying agents an amount of money sufficient to redeem on the redemption date all
the Securities or portions of Securities so called for redemption at the
appropriate redemption price, together with accrued interest, if any, to the
date fixed for redemption. The Company will give the Trustee notice of each
redemption at least forty-five days prior to the date fixed for redemption
(unless a shorter notice is acceptable to the Trustee) as to the aggregate
principal amount of Securities to be redeemed.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select, pro rata or by lot or in such other manner as it shall
deem reasonable and fair, the numbers of the Securities to be redeemed in whole
or in part.
Section 3.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities with respect to which such notice has been given shall become due and
payable on the date and at the Place of Payment stated in such notice at the
applicable redemption price, together with interest, if any (and Additional
Amounts, if any), accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Securities at
the redemption price, together with interest, if any, and Additional Amounts, if
any, accrued to said date) interest on the Securities or portions of Securities
so called for redemption shall cease to accrue. On presentation and surrender of
such Securities subject to redemption at said Place of Payment in said notice
specified, the said Securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable redemption price, together with
interest, if any, and Additional Amounts, if any, accrued thereon to the date
fixed for redemption. Interest, if any (and Additional Amounts, if any),
maturing on or prior to the date fixed for redemption shall continue to be
payable (but without interest thereon unless the Company shall default in
payment thereof) in the case of Coupon Securities to the bearers of the Coupons
for such interest upon surrender thereof, and in the case of Registered
Securities to the Holders thereof registered as such on the Security Register on
the relevant record date subject to the terms and provisions of Section 2.04. At
the option of the Company payment may be made by check to (or to the order of)
the Holders of the Securities or other Persons entitled thereto against
presentation and surrender of such Securities.
If any Coupon Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the date fixed for redemption, the
surrender of such missing Coupon or Coupons may be waived by the Company and the
Trustee, if there be furnished to each of them such security or indemnity as
they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities, of authorized
denominations, in aggregate principal amount equal to the unredeemed portion of
the Security so presented of the same series.
ARTICLE FOUR.
PARTICULAR COVENANTS OF THE COMPANY.
Section 4.01. Payment of Principal, Premium, Interest and Additional
Amounts. The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any),
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interest, if any, and Additional Amounts, if any, on each of the Securities at
the place, at the respective times and in the manner provided in the terms of
the Securities and in this Indenture. The interest on Coupon Securities
(together with any Additional Amounts) shall be payable only upon presentation
and surrender of the several Coupons for such interest installments as are
evidenced thereby as they severally mature. The interest, if any, on any
temporary bearer Securities (together with any Additional Amounts) shall be
paid, as to the installments of interest evidenced by Coupons attached thereto,
if any, only upon presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such Securities for
notation thereon of the payment of such interest. The interest on Registered
Securities (together with any Additional Amounts) shall be payable only to the
Holders thereof and at the option of the Company may be paid by mailing checks
for such interest payable to or upon the order of such Holders at their last
addresses as they appear on the Security Register for such Securities unless
otherwise specified in the terms of the Securities of the series as contemplated
by Section 2.01.
Section 4.02. Offices for Notices and Payments, etc. As long as any of the
Securities of a series remain outstanding, the Company will designate and
maintain, in the Borough of Manhattan, The City of New York, an office or agency
where the Registered Securities of such series may be presented for registration
of transfer and for exchange as in this Indenture provided, an office or agency
where notices and demands to or upon the Company in respect of the Securities of
such series or of this Indenture may be served, and an office or agency where
the Securities of such series may be presented for payment. The Company will
give to the Trustee notice of the location of each such office or agency and of
any change in the location thereof. In case the Company shall fail to maintain
any such office or agency in the Borough of Manhattan, The City of New York, or
shall fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
corporate trust office of the Trustee in the Borough of Manhattan, The City of
New York, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, notices and demands.
If Unregistered Securities of any series are outstanding, the Company will
maintain or cause the Trustee to maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of such series are listed) where such Unregistered
Securities, and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States, except, at the option of the
Company, if the Company shall have determined that, pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Company. Notwithstanding the foregoing,
payments in U.S. Dollars with respect to Unregistered Securities of any series
and Coupons appertaining thereto which are payable in U.S. Dollars may be made
at an agency of the Company maintained in the Borough of Manhattan, The City of
New York if such payment in U.S. Dollars at each agency maintained by the
Company outside the United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other similar
restrictions.
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The Company hereby initially designates Deutsche Bank Trust Company
Americas, located at its Corporate Trust Office as the Security Registrar and as
the office or agency of the Company in the Borough of Manhattan, The City of New
York, where the Securities may be presented for payment and, in the case of
Registered Securities, for registration of transfer and for exchange as in this
Indenture provided and where notices and demands to or upon the Company in
respect of the Securities of any series or of this Indenture may be served.
Section 4.03. Provisions as to Paying Agent. (a) Whenever the Company
shall appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1) that it will hold sums held by it as such agent for the payment
of the principal of (and premium, if any), interest, if any, or Additional
Amounts, if any, on the Securities of such series in trust for the benefit
of the Holders of the Securities of such series, or Coupons appertaining
thereto, as the case may be, entitled thereto and will notify the Trustee
of the receipt of sums to be so held,
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to make
any payment of the principal of (or premium, if any), interest, if any, or
Additional Amounts, if any, on the Securities of such series when the same
shall be due and payable, and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of (and premium, if any), interest, if
any, or Additional Amounts, if any, on the Securities of any series set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such series entitled thereto a sum sufficient to pay such principal (and premium
if any), interest, if any, or Additional Amounts, if any, so becoming due. The
Company will promptly notify the Trustee of any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for such series by it or any paying agent hereunder as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 12.03 and 12.04.
Section 4.04. Luxembourg Publications. In the event of the publication of
any notice pursuant to Section 3.02, 6.07, 7.10, 7.11, 9.02, 10.02 or 12.05, the
party making such publication shall also, to the extent that notice is required
so to be given to Holders of Securities of any series by applicable Luxembourg
law or stock exchange regulation, make a similar publication the same number of
times in Luxembourg.
24
Section 4.05. Statement by Officers as to Default. (a) The Company will
deliver to the Trustee, on or before a date not more than four months after the
end of each fiscal year of the Company (which, on the date of execution hereof,
ends on December 31) ending after the date hereof, commencing with the fiscal
year ended 2005, but in no event less than once every twelve months, a brief
certificate of the Company's principal executive officer, principal financial
officer or principal accounting officer as to such officer's knowledge of the
Company's compliance with all conditions and covenants under this Indenture
(such compliance to be determined without regard to any period of grace or
requirement of notice provided under this Indenture).
(b) Promptly after any Officer has knowledge of a default hereunder, the
Company will deliver to the Trustee a written notice specifying the nature and
period of existence thereof and the action the Company is taking and proposes to
take with respect thereto.
Section 4.06. Existence. Subject to Article Eleven, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any rights or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Securityholders.
Section 4.07. Limitation on Liens. The Company will not, nor will it
permit any Subsidiary to, at any time pledge or otherwise subject to any lien
any Intercompany Securities (whether now owned or hereafter acquired) without
thereby expressly securing the due and punctual payment of the principal of
(premium, if any) and interest, if any, and Additional Amounts, if any, on the
Securities and all other amounts payable thereunder or hereunder equally and
ratably with any and all other obligations and Indebtedness secured by such
pledge or other lien, so long as any such other obligations and Indebtedness
shall be so secured, and the Company covenants that if and when any such pledge
or other lien is created, the Securities will be so secured thereby, provided,
however, that this restriction shall not apply to (1) any lien on any
Intercompany Securities existing at the time of acquisition, directly or
indirectly, by the Company or any Subsidiary of such Intercompany Securities
(including acquisition through merger or consolidation) or given to secure the
payment of all or any part of the purchase price thereof or to secure any
Indebtedness incurred prior to, at the time of, or within 180 days after, the
acquisition thereof for the purpose of financing all or any part of the purchase
price thereof; and (2) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any lien, charge
or pledge referred to in the foregoing clause (1) of this Section, provided,
however, that the amount of any and all obligations and Indebtedness secured
thereby shall not exceed the amount thereof so secured immediately prior to the
time of such extension, renewal or replacement, and that such extension, renewal
or replacement shall be limited to all or a part of the Intercompany Securities
subject to such lien being extended, renewed or replaced.
Section 4.08. Guarantees of Significant Subsidiaries. The Company shall:
(a) within 45 days after the end of each of the first three fiscal
quarters of each year and 90 days after the end of each fiscal year,
25
(b) contemporaneously with the acquisition of any Person which upon such
acquisition is, or of any asset which causes the Subsidiary acquiring such
assets (without regard to any other assets of such Subsidiary) to be, a
Significant Subsidiary (other than an Excluded Significant Subsidiary), and
(c) contemporaneously with the guarantee by any Subsidiary of any
unsecured indebtedness of the Company with a maturity in excess of one year,
cause (i) in the case of clause (a), each Person that is a Significant
Subsidiary (other than an Excluded Significant Subsidiary) as of the end of such
quarter or fiscal year and is not already a Guarantor, (ii) in the case of
clause (b), such Significant Subsidiary and (iii) in the case of clause (c),
such Subsidiary, to execute and deliver to the Trustee a supplemental indenture
pursuant to Section 10.01(h) whereby such Significant Subsidiary or Subsidiary
unconditionally guarantees in accordance with Article Fourteen the principal of
(premium, if any), and interest, if any, and Additional Amounts, if any, on the
Securities and all other amounts payable by the Company hereunder or thereunder,
and shall agree to be bound by Article Fourteen of this Indenture.
ARTICLE FIVE.
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.
Section 5.01. Securityholder Lists. The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee with respect to the
Securities of each series:
(a) semiannually, not later than each Interest Payment Date (in the case
of any series having semiannual Interest Payment Dates) or not later than the
dates determined pursuant to Section 2.01 (in the case of any series not having
semiannual Interest Payment Dates) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities of
such series as of the Regular Record Date (or as of such other date as may be
determined pursuant to Section 2.01 for such series) therefor, and
(b) at such other times as the Trustee may request in writing, within
thirty days after receipt by the Company of any such request, a list in such
form as the Trustee may reasonably require of the names and addresses of the
Holders of Securities of a particular series specified by the Trustee as of a
date not more than fifteen days prior to the time such information is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar any such list shall exclude names and addresses received by the
Trustee in its capacity as Security Registrar, and if and so long as all of the
Securities of any series are Registered Securities, such list shall not be
required to be furnished.
Section 5.02. Preservation and Disclosure of Lists. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the Holders of each series of Securities (i)
contained in the most recent list furnished to it as provided in Section 5.01,
(ii) received by the Trustee in its capacity as Security Registrar or a Paying
Agent, or (iii) that have filed their names and addresses with the Trustee
within the preceding two years. The Trustee may destroy any list furnished to it
as provided in Section 5.01 upon receipt of a new list so furnished.
26
(b) In case three or more Holders of Securities (hereinafter referred to
as "APPLICANTS") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the Applicants' desire to communicate with other
Holders of Securities of a particular series (in which case the Applicants must
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities and it is
accompanied by a copy of the form of proxy or other communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(1) afford to such Applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection
(a) of this Section, or
(2) inform such Applicants as to the approximate number of Holders
of Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such Applicants access to such
information, the Trustee shall, upon the written request of such Applicants,
mail to each Holder of such series or all Securities, as the case may be, whose
name and address appear in the information preserved at the time by the Trustee
in accordance with the provisions of subsection (a) of this Section a copy of
the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five Business Days after such tender, the Trustee
shall mail to such Applicants and file with the Securities and Exchange
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
all Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If said
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, said Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met, and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such Applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of the Company or of the Trustee shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with the provisions of
subsection (b) of this Section, regardless of the source from which such
27
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under said subsection
(b).
Section 5.03. Reports by the Company. The Company covenants:
(a) to file with the Trustee within fifteen days after the Company is
required to file the same with the Securities and Exchange Commission, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as said Commission may from time
to time by rules and regulations prescribe) which the Company may be required to
file with said Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file information, documents
or reports pursuant to either of such sections, then to file with the Trustee
and said Commission, in accordance with rules and regulations prescribed from
time to time by said Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the Securities and Exchange Commission,
in accordance with the rules and regulations prescribed from time to time by
said Commission, such additional information, documents, and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations;
(c) to transmit by mail to all the Holders of Securities of each series,
as the names and addresses of such Holders appear on the Security Register,
within thirty days after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by the Company with
respect to each such series pursuant to subsections (a) and (b) of this Section
as may be required by rules and regulations prescribed from time to time by the
Securities and Exchange Commission; and
(d) If Unregistered Securities of any series are outstanding, to file with
the listing agent of the Company with respect to such series such documents and
reports of the Company as may be required from time to time by the rules and
regulations of any stock exchange on which such Unregistered Securities are
listed.
Section 5.04. Reports by the Trustee. (a) On or before a date not more
than four months after the end of each fiscal year of the Company (which, on the
date of execution hereof, ends on December 31) ending after the date hereof,
commencing with the fiscal year December 31, 2005, but in no event less than
once every twelve months, so long as any Securities of any series are
outstanding hereunder, the Trustee shall transmit to the Holders of any
Securities of such series (including any Holder that has filed their names and
addresses with the Trustee pursuant to Section 5.02(a)(iii)), in the manner
provided by Section 313(c) of the Trust Indenture Act, a brief report dated as
of such reporting date as may be required by Section 313(a) of the Trust
Indenture Act. The Trustee shall also, to the extent applicable, provide such
Persons, in the manner provided by Section 313(c) of the Trust Indenture Act,
the reports required by Section 313(b) of the Trust Indenture Act.
28
(b) A copy of each such report shall, at the time of such transmission to
Holder of Securities of a particular series, be filed by the Trustee with each
stock exchange upon which the Securities of such series are listed and also with
the Securities and Exchange Commission. The Company agrees to notify the Trustee
when and as the Securities of any series become listed on any stock exchange.
ARTICLE SIX.
REMEDIES ON DEFAULT.
Section 6.01. Events of Default. In case one or more of the following
Events of Default with respect to a particular series of Securities shall have
occurred and be continuing, that is to say:
(a) default in the payment of the principal of (or premium, if any, on)
any of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
(b) default in the payment of any installment of interest, if any, or in
the payment of any Additional Amounts upon any of the Securities of such series
as and when the same shall become due and payable, and continuance of such
default for a period of thirty days;
(c) failure on the part of the Company duly to observe or perform any of
the covenants or agreements described in Section 4.07, Section 4.08 or Article
Eleven for a period of thirty days after the date on which written notice of
such failure, requiring the Company to remedy the same, shall have been given to
the Company by the Trustee, or to the Company and the Trustee by the Holders of
at least twenty-five percent in aggregate principal amount of the Securities of
such series at the time outstanding;
(d) failure on the part of the Company or any Guarantor duly to observe or
perform any other of the covenants or agreements on the part of the Company or
such Guarantor, applicable to such series of the Securities or contained in this
Indenture (other than the covenants described in clauses (a), (b) and (c)) for a
period of ninety days after the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the Company
by the Trustee, or to the Company and the Trustee by the Holders of at least
twenty-five percent in aggregate principal amount of the Securities of such
series at the time outstanding;
(e) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company, any Significant Subsidiary or any
Guarantor in an involuntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or a decree or
order adjudging the Company, such Significant Subsidiary or such Guarantor a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment, or composition of or in respect of the
Company, such Significant Subsidiary or Guarantor or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Company, such Significant Subsidiary or such Guarantor or for any
substantial part of its property, or ordering the winding-up or liquidation of
29
its affairs, shall have been entered and such decree or order shall remain
unstayed and in effect for a period of ninety (90) days;
(f) the Company, any Significant Subsidiary or any Guarantor shall
commence a voluntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law now or hereafter in
effect or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or shall consent to the entry of a decree or order for relief in an
involuntary case or proceeding against the Company, such Significant Subsidiary
or such Guarantor, or the filing by the Company, any Significant Subsidiary or
any Guarantor of a petition or answer to consent seeking reorganization or
relief under any such applicable federal or state law, or the consent by the
Company, any Significant Subsidiary or any Guarantor to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar official) of
the Company, such Significant Subsidiary or any Guarantor or of any substantial
part of its property, or the making by the Company, any Significant Subsidiary
or any Guarantor of any general assignment for the benefit of creditors, or the
taking of action by the Company, any Significant Subsidiary or any Guarantor in
furtherance of any such action; or
(g) any Guarantee shall cease to be in full force and effect (unless such
Guarantee shall have been released pursuant to Section 14.04),
then if an Event of Default (other than as described in clause (e) or (f)) shall
have occurred and be continuing, and in each and every such case, unless the
principal amount of all the Securities of such series shall have already become
due and payable, either the Trustee or the Holders of not less than twenty-five
percent in aggregate principal amount of the Securities of all series affected
thereby then outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by Holders of such Securities) may declare the principal
amount of all the Securities (or, with respect to Original Issue Discount
Securities, such lesser amount as may be specified in the terms of such
Securities) of the series affected thereby to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable, any provision of this Indenture or the Securities of such series
contained to the contrary notwithstanding; and if an Event of Default described
in clause (e) or (f) shall have occurred and be continuing, the principal of all
the Securities not already due and payable (or, with respect to Original Issue
Discount Securities, such lesser amount as may be specified in the terms of such
Securities) shall become due and payable immediately without any declaration or
other act on part of the Trustee or any Securityholder, any provision of this
Indenture or the Securities of such series contained to the contrary
notwithstanding. The foregoing provisions, however, are subject to the
conditions that if, at any time after the principal of the Securities of any one
or more or all series, as the case may be, shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest, if any, and all Additional Amounts, if any, due upon
all the Securities of such series or of all the Securities, as the case may be,
and the principal of (and premium, if any, on) all Securities of such series or
of all the Securities, as the case may be (or, with respect to Original Issue
Discount Securities, such lesser amount as may be specified in the terms of such
Securities), which shall have become due otherwise than by acceleration (with
interest, if any, upon such principal and premium, if any, and, to the extent
30
that payment of such interest is enforceable under applicable law, on overdue
installments of interest and Additional Amounts, if any, at the same rate as the
rate of interest specified in the Securities of such series, as the case may be
(or, with respect to Original Issue Discount Securities at the rate specified in
the terms of such Securities for interest on overdue principal thereof upon
maturity, redemption or acceleration of such series, as the case may be), to the
date of such payment or deposit), and such amount as shall be payable to the
Trustee pursuant to Section 7.06, and any and all defaults under the Indenture
shall have been remedied, then and in every such case the Holders of a majority
in aggregate principal amount of the Securities of such series (or of all the
Securities, as the case may be) then outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect to that series
or with respect to all Securities, as the case may be and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon. If the principal of all Securities shall have been declared
to be payable pursuant to this Section 6.01, in determining whether the Holders
of a majority in aggregate principal amount thereof have waived all defaults and
rescinded and annulled such declaration, all series of Securities shall be
treated as a single class and the principal amount of Original Issue Discount
Securities shall be deemed to be the amount declared payable under the terms
applicable to such Original Issue Discount Securities.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such recession and annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
Trustee and the Holders of Securities, as the case may be, shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the Holders of Securities,
as the case may be, shall continue as though no such proceedings had been taken.
Section 6.02. Payment of Securities on Default; Suit Therefor. The Company
covenants that (1) in case default shall be made in the payment of any
installment of interest, if any, on any of the Securities of any series or any
Additional Amounts payable in respect of any of the Securities of any series, as
and when the same shall become due and payable, and such default shall have
continued for a period of thirty days or (2) in case default shall be made in
the payment of the principal of (or premium, if any, on) any of the Securities
of any series, as and when the same shall have become due and payable, whether
upon maturity of such series or upon redemption or upon declaration or
otherwise, then upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the Holders of the Securities of such series, and the
Coupons, if any, appertaining to such Securities, the whole amount that then
shall have become due and payable on all such Securities of such series and such
Coupons, for principal (and premium, if any) or interest, if any, or Additional
Amounts, if any, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue installments of interest, if any,
and Additional Amounts, if any, at the same rate as the rate of interest
specified in the Securities of such series (or, with respect to Original Issue
Discount Securities, at the rate specified in the terms of such Securities for
interest on overdue principal thereof upon maturity, redemption or
acceleration); and, in addition thereto, such further amounts as shall be
payable pursuant to Section 7.06.
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In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Company or other obligor upon such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor upon Securities of any series
under Title 11 of the United States Code or any other applicable law, or in case
a receiver or trustee shall have been appointed for the property of the Company
or such other obligor, or in case of any other judicial proceedings relative to
the Company or such other obligor, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the
principal of the Securities of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal
(or, with respect to Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series), and premium,
if any, interest, if any, and Additional Amounts, if any, owing and unpaid in
respect of the Securities of such series, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee under Section 7.06 and of the Holders of the Securities and Coupons of
such series allowed in any such judicial proceedings relative to the Company or
other obligor upon the Securities of such series, or to the creditors or
property of the Company or such other obligor, and to collect and receive any
moneys or other property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims of the
Securityholders of such series and of the Trustee on their behalf; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Holders of the Securities and Coupons of such series
to make payments to the Trustee and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders of such series, to pay
to the Trustee such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
reasonable expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or Coupons appertaining to such Securities,
or the production thereof on any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall be for the ratable benefit of the Holders of the Securities or Coupons
appertaining thereto.
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In case of a default hereunder the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 6.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 6.02 shall be applied in the order
following, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, if any, upon presentation of the several Securities and Coupons in
respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of the amounts payable to the Trustee pursuant to
Section 7.06;
SECOND: In case the principal of the Securities in respect of which moneys
have been collected shall not have become due, to the payment of interest, if
any, and Additional Amounts, if any, on the Securities of such series in the
order of the maturity of the installments of such interest, with interest (to
the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate as the rate of interest, if
any, and Additional Amounts, if any, specified in the Securities of such series
(or, with respect to Original Issue Discount Securities, at the rate specified
in the terms of such Securities for interest on overdue principal thereof upon
maturity, redemption or acceleration), such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference; and
THIRD: In case the principal of the Securities in respect of which moneys
have been collected shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Securities of such
series for principal (and premium, if any), interest, if any, and Additional
Amounts, if any, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest, if any, and Additional Amounts,
if any, at the same rate as the rate of interest specified in the Securities of
such series (or, with respect to Original Issue Discount Securities, at the rate
specified in the terms of such Securities for interest on overdue principal
thereof upon maturity, redemption or acceleration); and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal (and premium,
if any), interest, if any, and Additional Amounts, if any, without preference or
priority of principal (and premium, if any), over interest, if any, and
Additional Amounts, if any, or of interest, if any, and Additional Amounts, if
any, over principal (and premium, if any), or of any installment of interest, if
any, or Additional Amounts, if any, over any other installment of interest, if
any, or Additional Amounts, if any, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal (and
premium, if any), and accrued and unpaid interest, if any, and Additional
Amounts, if any.
Section 6.04. Proceedings by Securityholders. No Holder of any Security of
any series or of any Coupon appertaining thereto shall have any right by virtue
or by availing of any
33
provision of this Indenture to institute any action or proceedings at law or in
equity or in bankruptcy or otherwise, upon or under or with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than twenty-five percent in
aggregate principal amount of the Securities of such series then outstanding
shall have made written request upon the Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for sixty
days after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceedings and no direction inconsistent
with such written request shall have been given to the Trustee pursuant to
Section 6.06; it being understood and intended, and being expressly covenanted
by the taker and Holder of every Security with every other taker and Holder and
the Trustee, that no one or more Holders of Securities or Coupons appertaining
to such Securities shall have any right in any manner whatever by virtue of or
by availing himself of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of Securities or Coupons appertaining
to such Securities, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities and Coupons. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Notwithstanding the first sentence of this Section 6.04, if an Event of Default
specified in clauses (e) and (f) of Section 6.01 occurs, no further action or
declaration on part of the Trustee or any Securityholder is required.
Notwithstanding any other provisions in this Indenture, however, the right
of any Holder of any Security to receive payment of the principal of (and
premium, if any) and interest, if any, and Additional Amounts, if any, on such
Security or Coupon, on or after the respective due dates expressed in such
Security or Coupon, or to institute suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of such Holder. With respect to Original Issue Discount Securities,
principal shall mean such amount as shall be due and payable be specified in the
terms of such Securities.
Section 6.05. Remedies Cumulative and Continuing. All powers and remedies
given by this Article Six to the Trustee or to the Holders of Securities or
Coupons shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or the Holders of Securities or Coupons, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder of any of the Securities or Coupons to exercise any right or
power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section
6.04, every power and remedy given by this Article Six or by law to the Trustee
or to the Holders of Securities or Coupons may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Holders of
Securities or Coupons, as the case may be.
34
Section 6.06. Direction of Proceedings. The Holders of a majority in
aggregate principal amount of the Securities of any or all series affected
(voting as one class) at the time outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee;
provided, however, that (i) such direction shall not be in conflict with any
rule of law or with this Indenture, (ii) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction and
(iii) the Trustee shall have the right to decline to follow any such direction
if the Trustee, being advised by counsel, determines that the action or
proceedings so directed would be prejudicial to the Holders not joining in such
direction or may not lawfully be taken or if the Trustee in good faith by its
board of directors or executive committee or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or
proceedings so directed would involve the Trustee in personal liability.
Prior to any declaration accelerating the maturity of the Securities of
any series, the holders of a majority in aggregate principal amount of the
Securities of such series at the time outstanding may on behalf of the Holders
of all of the Securities of such series waive any past default or Event of
Default hereunder and its consequences except a default in the payment of
principal of (premium, if any) or interest, if any, or Additional Amounts, if
any, on any Securities of such series or in respect of a covenant or provision
hereof which may not be modified or amended without the consent of the Holders
of each outstanding Security of such series affected. Upon any such waiver the
Company, the Trustee and the Holders of the Securities of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 6.06, said default
or Event of Default shall for all purposes of the Securities of such series and
this Indenture be deemed to have been cured and to be not continuing.
Section 6.07. Notice of Defaults. The Trustee shall, within ninety days
after the occurrence of a default with respect to the Securities of any series,
give notice of all Defaults with respect to that series known to the Trustee (i)
if any Unregistered Securities of that series are then outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 4.04, at least once in an
Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities of that
series are then outstanding, to all Holders thereof who have filed their names
and addresses with the Trustee as described in Section 5.02(a)(iii), by mailing
such notice to such Holders at such addresses and (iii) to all Holders of then
outstanding Registered Securities of that series, by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register, unless
in each case such Defaults shall have been cured before the mailing or
publication of such notice (the term "DEFAULTS" for the purpose of this Section
being hereby defined to be the events specified in Sections 6.01(a), (b), (c),
(d), (e), (f) and (g) and any additional events specified in the terms of any
series of Securities pursuant to Section 2.01, not including periods of grace,
if any, provided for therein, and irrespective of the giving of written notice
specified in Section 6.01(c) or (d) or in the terms of any Securities
established pursuant to Section 2.01); and provided that, except in the case of
Default in the payment of the principal of (premium, if any), interest, if any,
or Additional Amounts, if any, on any of the Securities of such series, the
Trustee shall be protected
35
in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or Responsible Officers
of the Trustee in good faith determines that the withholding of such notice is
in the interests of the Holders of the Securities of such series.
Section 6.08. Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholders of
any series, or group of such Securityholders, holding in the aggregate more than
ten percent in aggregate principal amount of all Securities (voting as one
class), or to any suit instituted by any Securityholders for the enforcement of
the payment of the principal of (or premium, if any), interest, if any, or
Additional Amounts, if any on any Security on or after the due date expressed in
such Security.
ARTICLE SEVEN.
CONCERNING THE TRUSTEE.
Section 7.01. Duties and Responsibilities of Trustee. The Trustee, prior
to the occurrence of an Event of Default of a particular series and after the
curing of all Events of Default of such series which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to a
particular series has occurred (which has not been cured) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to a
particular series and after the curing of all Events of Default with respect to
such series which may have occurred:
(1) the duties and obligations of the Trustees with respect to such
series shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions
36
expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or officers, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of Securities pursuant to Section 6.06 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
No provision of this Indenture shall be construed as requiring the Trustee
to expend or risk its own funds or otherwise to incur any personal financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there shall be reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
Section 7.02. Reliance on Documents, Opinions, etc. Subject to the
provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, Coupon or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an instrument signed in the name of
the Company by the Chairman of the Board of Directors or any Vice Chairman of
the Board of Directors or the President or any Executive Vice President or any
Senior Vice President or any Vice President or any Managing Director or the
Chief Financial Officer or the Treasurer and by the Secretary or any Assistant
Secretary or, if the other signatory is other than the Treasurer, any Assistant
Treasurer (unless other evidence in respect thereof be herein specifically
prescribed); and a Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or any Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken
or suffered by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the
37
Trustee reasonable security or indemnity against the costs, expenses, and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, provided, however, that the Trustee shall be responsible for any
misconduct or negligence on the part of any agent or attorney appointed by it
hereunder; and
(g) the Trustee shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
Section 7.03. No Responsibility for Recitals, etc. The recitals contained
herein and in the Securities, other than the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture, the
Guarantees or of the Securities, provided that the Trustee shall not be relieved
of its duty to authenticate Securities only as authorized by this Indenture. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 7.04. Ownership of Securities or Coupons. The Trustee or any agent
of the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons with the same rights it
would have if it were not Trustee, or an agent of the Company or of the Trustee.
Section 7.05. Moneys to be Held in Trust. Subject to the provisions of
Section 12.04 hereof, all moneys received by the Trustee or any paying agent
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received but need not be segregated from other
funds except to the extent required by law. Neither the Trustee nor any paying
agent shall be under any liability for interest on any moneys received by it
hereunder except such as it may agree with the Company to pay thereon. So long
as no Event of Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the written
order of the Company, signed by its Chairman of the Board of Directors or any
Vice Chairman of the Board of Directors or its President or any Executive Vice
President or any Senior Vice President or any Vice President or any Managing
Director or its Treasurer or any Assistant Treasurer.
Section 7.06. Compensation and Expenses of Trustee. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable
38
compensation, and, except as otherwise expressly provided the Company will pay
or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation,
expenses and disbursements of its counsel and of all Persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. If any property other than cash shall at any time
be subject to the lien of this Indenture, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent jurisdiction or by
the supplemental instrument subjecting such property to such lien, shall be
entitled to make advances for the purpose of preserving such property or of
discharging tax liens or other prior liens or encumbrances hereon. The Company
also covenants to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or reasonable expense incurred without negligence or bad
faith on the part of the Trustee, arising out of or in connection with the
acceptance or administration of this trust, including the reasonable costs and
expenses of defending itself against any claim of liability in the premises. The
obligations of the Company under this Section to compensate the Trustee and to
pay or reimburse the Trustee for reasonable expenses, disbursements and advances
shall constitute additional indebtedness hereunder, and shall survive discharge
of the Indenture, payment in full at maturity of the Notes, and resignation or
removal of the Trustee. Such additional indebtedness shall be secured by a lien
prior to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities or Coupons.
Section 7.07. Officers' Certificate as Evidence. Subject to the provisions
of Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such Certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section 7.08. Conflicting Interest of Trustee. The Trustee shall comply
with Section 310(b) of the Trust Indenture Act.
Section 7.09. Eligibility of Trustee. There shall at all times be a
trustee hereunder which shall be a corporation organized and doing business
under the laws of the United States or of any State or Territory thereof or of
the District of Columbia, which (a) is authorized under such laws to exercise
corporate trust powers and (b) is subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority and (c) shall have
at all times a combined capital and surplus of not less than twenty-five million
dollars. If such corporation publishes reports of condition at least annually,
pursuant to law, or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation at any time shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
39
Section 7.10. Resignation or Removal of Trustee. (a) The Trustee, or any
trustee or trustees hereafter appointed, may, upon sixty days written notice to
the Company, at any time resign with respect to one or more or all series by
giving written notice of resignation to the Company (i) if any Unregistered
Securities of a series affected are then outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in London (and, if required by Section 4.04, at least once
in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities
of a series affected are then outstanding, by mailing notice of such resignation
to the Holders thereof who have filed their names and addresses with the Trustee
as described in Section 5.02(a)(iii) at such addresses as were so furnished to
the Trustee and (iii) by mailing notice of such resignation to the Holders of
then outstanding Registered Securities of each series affected at their
addresses as they shall appear on the Security Register. Upon receiving such
notice of resignation the Company shall promptly appoint a successor trustee
with respect to the applicable series by written instrument, in duplicate,
executed by order of the Board of Directors of the Company, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within thirty days after the mailing of such notice of
resignation to the Securityholders, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 6.08, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 with respect to any series of Securities after written request
therefor by the Company or by any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months,
or
(2) the Trustee shall cease to be eligible in accordance with the
provision of Section 7.09 with respect to any series of Securities and
shall fail to resign after written request therefor by the Company or by
any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee with respect to
such series by written instrument, in duplicate, executed by order of the Board
of Directors of the Company, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.08, any Securityholder of such series who has been a
bona fide Holder of a Security or Securities of the applicable series for at
least six months
40
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(b) The Holders of a majority in aggregate principal amount of the
Securities of all series (voting as one class) at the time outstanding may at
any time remove the Trustee with respect to Securities of all series and appoint
a successor trustee with respect to the Securities of all series.
(c) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
Section 7.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 7.06, execute and deliver an instrument transferring to such
successor trustee all the rights and powers of the trustee so ceasing to act.
Upon request of any such successor trustee, the Company shall execute any and
all instruments in writing in order more fully and certainly to vest in and
confirm to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a lien upon all property or funds
held or collected by such trustee to secure any amounts then due it pursuant to
the provisions of Section 7.06.
In case of the appointment hereunder of a successor trustee with respect
to the Securities of one or more (but not all) series, the Company, the
predecessor Trustee and each successor trustee with respect to the Securities of
any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such trustees co-trustees of the
same trust and that each such trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such trustee.
No successor trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor trustee shall be qualified
under the provisions of Section 7.08 and eligible under the provisions of
Section 7.09.
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Upon acceptance of appointment by a successor trustee as provided in this
Section, the Company shall give notice of the succession of such trustee
hereunder (a) if any Unregistered Securities of a series affected are then
outstanding, to the Holders thereof, by publication of such notice at least once
in an Authorized Newspaper in the Borough of Manhattan, The City of New York and
at least once in an Authorized Newspaper in London (and, if required by Section
4.04, at least once in an Authorized Newspaper in Luxembourg), (b) if any
Unregistered Securities of a series affected are then outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 5.02(a)(iii), by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Company for such purpose) and (c) to the Holders of
Registered Securities of each series affected, by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register. If the
Company fails to mail such notice in the prescribed manner within ten days after
the acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be so given at the expense of the Company.
Section 7.12. Successor by Merger, etc. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 7.13. Limitations on Rights of Trustee as Creditor. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act.
ARTICLE EIGHT.
CONCERNING THE SECURITYHOLDERS.
Section 8.01. Action by Securityholders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by Securityholders in Person or by agent or proxy appointed in writing,
or (b) by the record of the Holders of Securities voting in favor thereof at any
meeting of Securityholders duly called and held in accordance with the
provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Securityholders. In
determining whether the Holders of a specified percentage in aggregate principal
amount of the Securities have taken any action (including the making of any
demand or request, the waiving of any notice, consent or waiver or the taking of
any other action), the principal amount of any Original Issue Discount Security
that may be counted in making such determination and that shall be deemed to be
outstanding for such purposes shall be equal to the amount of the principal
thereof that could be declared to be due and payable upon an Event of Default
pursuant to the terms of such Original Issue Discount Security at the time the
taking of such action is evidenced to the Trustee.
42
Section 8.02. Proof of Execution by Securityholders. Subject to the
provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Securityholder or its agent or proxy shall be sufficient if made
in the following manner:
(a) In the case of Holders of Unregistered Securities, the fact and date
of the execution by any such Person of any instrument may be proved by the
certificate of any notary public or other officer of any jurisdiction authorized
to take acknowledgments of deeds or administer oaths that the Person executing
such instruments acknowledged to him the execution thereof or by an affidavit of
a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by or on behalf of any legal entity other than
an individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the Person executing the same. The fact of the holding
by any Holder of a Security of any series, and the identifying number of such
Security and the date of his holding the same, may be proved by the production
of such Security or by a certificate executed by any trust company, bank, banker
or recognized securities dealer wherever situated satisfactory to the Trustee,
if such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer by
the Person named in such certificate. Any such certificate may be issued in
respect of one or more Securities of one or more series specified therein. The
holding by the Person named in any such certificate of any Securities of any
series specified therein shall be presumed to continue for a period of one year
from the date of such certificate unless at the time of any determination of
such holding (1) another certificate bearing a later date issued in respect of
the same Securities shall be produced, or (2) the Security of such series
specified in such certificate shall be produced by some other Person, or (3) the
Security of such series specified in such certificates shall have ceased to be
outstanding. Subject to Sections 7.01, 7.02 and 9.05, the fact and date of the
execution of any such instrument and the amount and numbers of Securities of any
series held by the Person so executing such instrument and the amount and
numbers of any Security or Securities for such series may also be proven in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee for such series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such Securities
shall be proved by the Security Register or by a certificate of the Security
Registrar.
Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee,
any paying agent, any transfer agent and any Security Registrar may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the
Company, the Trustee, any paying agent, any transfer agent nor any Security
Registrar shall be affected by any notice to the contrary. The Company, the
Trustee, any paying agent, any transfer agent and any Security Registrar may,
subject to Section 2.04 hereof, treat the Person in whose name a Registered
Security shall be registered upon the Security Register as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue) for the purpose of receiving payment thereof or on account thereof and
for all other
43
purposes and neither the Company, the Trustee, any paying agent, any transfer
agent nor any Security Registrar shall be affected by any notice to the
contrary.
Section 8.04. Company-Owned Securities Disregarded. In determining whether
the Holders of the required aggregate principal amount of Securities have
concurred in any direction, consent or waiver under this Indenture, Securities
which are 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 for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are so owned shall be
disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company. In the case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05. Revocation of Consents; Future Securityholders Bound. At any
time prior to the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security the identifying number of
which is shown by the evidence to be included in the Securities the Holders of
which have consented to such action may, by filing written notice with the
Trustee at its office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security and of
any Security issued in exchange or substitution therefor irrespective of whether
or not any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the percentage in aggregate principal amount of the
Securities specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all the
Securities of each series intended to be affected thereby.
Section 8.06. Securities in a Foreign Currency. Unless otherwise specified
in an Officers' Certificate or supplemental indenture delivered pursuant to
Section 2.01 of this Indenture with respect to a particular series of
Securities, on any day when for purposes of this Indenture any action may be
taken by the Holders of a specified percentage in aggregate principal amount of
two or more series of outstanding Securities and, at such time, there are
outstanding Securities of at least one such series which are denominated in a
coin or currency other than that of at least one other such series, then the
principal amount of Securities of each such series (other than any such series
denominated in U.S. Dollars) which shall be deemed to be outstanding for the
purpose of taking such action shall be that amount of U.S. Dollars that could be
obtained for such amount at the Market Exchange Rate. For purposes of this
Section 8.06, Market Exchange Rate shall mean the noon U.S. Dollar buying rate
for that currency for cable transfers quoted in The City of New York on such day
as certified for customs purposes by the Federal Reserve Bank of New York. If
such Market Exchange Rate is not available for any reason with respect to such
currency, the Company shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date. The provisions of this paragraph shall apply in
determining the equivalent
44
number of votes which each Securityholder or proxy shall be entitled to pursuant
to Section 9.05 in respect of Securities of a series denominated in a currency
other than U.S. Dollars.
All decisions and determinations of the Company regarding the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company and all Holders.
ARTICLE NINE.
SECURITYHOLDERS' MEETINGS.
Section 9.01. Purposes of Meetings. A meeting of Securityholders of any or
all series may be called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive any default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee pursuant
to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Securities of any or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
Section 9.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of any or all series to take any action
specified in Section 9.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or in London, as the Trustee shall
determine. Notice of every meeting of the Holders of Securities of any or all
series, setting forth the time and place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given (i) if any
Unregistered Securities of a series that may be affected by the action proposed
to be taken at such meeting are then outstanding, to all Holders thereof, by
publication at least twice in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least twice in an Authorized Newspaper in
London (and, if required by Section 4.04, at least twice in an Authorized
Newspaper in Luxembourg) prior to the date fixed for the meeting, the first
publication, in each case, to be not less than twenty nor more than one hundred
eighty days prior to the date fixed for the meeting and the last publication to
be not more than five days prior to the date fixed for the meeting, (ii) if any
Unregistered Securities of a series that may be affected by the action proposed
to be taken at such meeting are then outstanding, to all Holders thereof who
have filed their names and addresses with the Trustee as described in Section
5.02(a)(iii), by mailing such notice to such Holders at such addresses, not less
than twenty nor more than one hundred eighty days prior to the date fixed for
the meeting and (iii) to all Holders of then outstanding Registered Securities
of each series that may be affected by the action proposed to be taken at such
meeting, by mailing
45
such notice to such Holders at their addresses as they shall appear on the
Security Register, not less than twenty nor more than one hundred eighty days
prior to the date fixed for the meeting. Failure of any Holder or Holders to
receive such notice or any defect therein shall in no case affect the validity
of any action taken at such meeting. Any meeting of Holders of Securities of all
or any series shall be valid without notice if the Holders of all such
Securities outstanding, the Company and the Trustee are present in Person or by
proxy or shall have waived notice thereof before or after the meeting. The
Trustee may fix, in advance, a date as the record date for determining the
holders entitled to notice of or to vote at any such meeting at not less than
twenty or more than one hundred eighty days prior to the date fixed for such
meeting.
Section 9.03. Call of Meetings by Company or Securityholders. In case at
any time the Company, pursuant to a Board Resolution, or the Holders of at least
ten percent in aggregate principal amount of the Securities of any or all
series, as the case may be, then outstanding, shall have requested the Trustee
to call a meeting of Securityholders of any or all series to take any action
authorized in Section 9.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed or published as provided in Section 9.02, the notice of such meeting
within thirty days after receipt of such request, then the Company or the
Holders of such Securities in the amount above specified may determine the time
and the place in said Borough of Manhattan or London for such meeting and may
call such meeting to take any action authorized in Section 9.01, by mailing
notice thereof as provided in Section 9.02.
Section 9.04. Qualification for Voting. To be entitled to vote at any
meeting of Securityholders a Person shall be a Holder of one or more Securities
of a series with respect to which a meeting is being held or a Person appointed
by an instrument in writing as proxy by such a Holder. The only Persons who
shall be entitled to be present or to speak at any meeting of the
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 9.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 9.03, in which case the
Company or the Securityholder calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
Subject to the provisions of Sections 8.01 and 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each U.S. $1,000
principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
46
respect of any Security challenged as not outstanding and ruled by the chairman
of the meeting not to be outstanding. The chairman of the meeting shall have no
right to vote except as a Securityholder or proxy. Any meeting of
Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03
may be adjourned from time to time, and the meeting may be held as so adjourned
without further notice.
Section 9.06. Voting. The vote upon any resolution submitted to any
meeting of Securityholders shall be by written ballot on which shall be
subscribed the signatures of the Securityholders or proxies and on which shall
be inscribed the identifying number or numbers or to which shall be attached a
list of identifying numbers of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavit by one or more Persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 9.02. The record shall be signed and verified by the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE TEN.
SUPPLEMENTAL INDENTURES.
Section 10.01. Supplemental Indentures Without Consent of Securityholders.
Without the consent of the Holders of any of the Securities at the time
outstanding, the Company and each Guarantor, when authorized by a Board
Resolution of each of them, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act) for one or more of the
following purposes:
(a) to evidence the succession of another corporation to the Company or
each Guarantor, or successive successions, and the assumption by any successor
corporation of the covenants, agreements and obligations of the Company or each
Guarantor pursuant to Article Eleven hereof;
(b) to add to the covenants of the Company or each Guarantor such further
covenants, restrictions, conditions or provisions as its Board of Directors and
the Trustee shall consider to be for the protection of the Holders of Securities
of any or all series, or the Coupons appertaining to such Securities, and to
make the occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or provisions a default or
an Event of Default with respect to any or all series permitting the enforcement
of all or any of the several
47
remedies provided in this Indenture as herein set forth, with such period of
grace, if any, and subject to such conditions as such supplemental indenture may
provide;
(c) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
of any series in bearer form, registrable or not registrable as to principal,
and with or without interest Coupons, and, if permitted by law, to provide for
exchangeability of such Securities with Securities issued hereunder in fully
registered form and to make all appropriate changes for such purpose, and to add
or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of uncertificated Securities of
any series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture or to make such other provisions in regard to matters or questions
arising under this Indenture, provided that such action pursuant to this clause
(d) shall not adversely affect the interests of the Holders of any series of
Securities or any Coupons appertaining to such Securities;
(e) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee;
(f) to evidence and provide for the acceptance and appointment hereunder
by a successor trustee with respect to the Securities of one or more series and
to add or change any provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, pursuant to Section 7.11;
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03;
(h) to evidence and provide for a Significant Subsidiary to guarantee the
obligations of the Company hereunder pursuant to Section 4.08 and Article
Fourteen or to evidence the release of any Guarantor pursuant to Section 14.04;
or
(i) to change or eliminate any provision of this Indenture, provided that
any such change or elimination (i) shall become effective only when there is no
Security outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision or
(ii) shall not apply to any Security outstanding.
The Trustee is hereby authorized to join with the Company and each
Guarantor in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any
such supplemental indenture which adversely affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 10.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the Holders of not
less than a majority in the aggregate principal amount of the Securities of all
series at the time outstanding affected by such
48
supplemental indenture (voting as one class), the Company and each Guarantor,
when authorized by a Board Resolution, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indentures or
modifying in any manner the rights of the Holders of the Securities of each such
series or any Coupons appertaining to such Securities; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
outstanding Security affected thereby, (i) change the fixed maturity of any
Securities, or reduce the principal amount thereof (or premium, if any), or
reduce the rate or extend the time of payment of any interest or Additional
Amounts thereon or reduce the amount due and payable upon acceleration of the
maturity thereof or the amount provable in bankruptcy, or make the principal of
(premium, if any) or interest, if any, or Additional Amounts, if any, on any
Security payable in any coin or currency other than that provided in such
Security, (ii) impair the right to institute suit for the enforcement of any
such payment on or after the stated maturity thereof (or, in the case of
redemption, on or after the redemption date therefor) or (iii) reduce the
aforesaid percentage of Securities, the consent of the Holders of which is
required for any such supplemental indenture, or the percentage required for the
consent of the Holders pursuant to Section 6.01 to waive defaults.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of the Company
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company and each Guarantor in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution and delivery by the Company, each Guarantor
and the Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall give notice of such supplemental indenture (i) to the
Holders of then outstanding Registered Securities of each series affected
thereby, by mailing a notice thereof by first-class mail to such Holders at
their addresses as they shall appear on the Security Register, (ii) if any
Unregistered Securities of a series affected thereby are then outstanding, to
the Holders thereof who have filed their names and addresses with the Trustee as
described in Section 5.02(a)(iii), by mailing a notice thereof by first-class
mail to such Holders at such addresses as were so furnished to the Trustee and
(iii) if any Unregistered Securities of a series affected thereby are then
outstanding, to all Holders thereof, if by publication of a notice thereof at
least once in an Authorized Newspaper in London (and, if required by Section
4.04, at least once in an Authorized Newspaper in Luxembourg), and in each case
such notice shall set forth in general terms the substance of such supplemental
indenture. Any failure of the Company to mail or publish such notice, or any
defect therein, shall not, however in any way impair or affect the validity of
any such supplemental indenture.
49
Section 10.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Ten shall comply with the Trust Indenture Act. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article Ten,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company, each Guarantor
and the Holders of Securities shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Opinion of Counsel as conclusive evidence that any such supplemental
indenture complies with the provisions of this Article Ten.
Section 10.04. Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provision of this Article Ten may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. New Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered, without
charge to the Securityholders, in exchange for the Securities of such series
then outstanding.
ARTICLE ELEVEN.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
Section 11.01. Corporation May Consolidate, etc., on Certain Terms. The
Company covenants that it will not merge or consolidate with any other
Corporation or sell, assign, transfer, lease or otherwise convey all or
substantially all of its property or assets to any Person, unless (i) either the
Company shall be the continuing Corporation, or the successor Person (if other
than the Company) shall be a Corporation organized and existing under the laws
of the United States of America or a state thereof and such Corporation shall
expressly assume the due and punctual payment of the principal of (and premium,
if any), interest, if any, and Additional Amounts, if any, on all the Securities
and any Coupons, according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed by the Corporation by supplemental indenture satisfactory to the
Trustee, executed and delivered to the Trustee by such Corporation, (ii) each
Guarantor shall, by supplemental indenture, confirm that their Guarantee shall
apply to the surviving entity's obligations under the Securities and this
Indenture, as modified by such supplemental indenture, and confirm the due and
punctual performance of the Guarantee and the covenants of the Guarantor in this
Indenture, and (iii) the Company or such successor Corporation, as the case may
be, shall not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or condition.
For purposes of the foregoing, any sale, assignment, transfer, lease or
other conveyance of the properties and assets of one or more Significant
Subsidiaries (other than to the Company
50
or another Subsidiary of the Company), which, if such assets were owned by the
Company, would constitute all or substantially all of the properties and assets
of the Company, shall be deemed to be the transfer of all or substantially all
of the properties and assets of the Company.
Section 11.02. Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the
successor Corporation, such successor Corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the party of the first part. Such successor Corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of Residential
Capital Corporation, any or all of the Securities, and any Coupons appertaining
thereto, issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
Corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities or Coupons which previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication,
and any Securities or Coupons which such successor Corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All of the
Securities, and any Coupons appertaining thereto, so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities or Coupons theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities, and any Coupons
appertaining thereto, had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities and
Coupons thereafter to be issued as may be appropriate.
Section 11.03. Reliance by Trustee on Officers' Certificate and Opinion of
Counsel. The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
rely on the Officers' Certificate and Opinion of Counsel required by Section
15.04 as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article Eleven.
ARTICLE TWELVE.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.
Section 12.01. Discharge of Indenture. If at any time (a) the Company
shall have delivered to the Trustee for cancellation all Securities of any
series theretofore authenticated (other than any Securities of such series and
Coupons appertaining thereto which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.06) or (b) all
such Securities of such series and any Coupons appertaining to such Securities
not theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall
deposit or cause to be deposited with the Trustee as trust funds the entire
amount (other than moneys repaid by the Trustee or any paying agent to the
Company in accordance with Section 12.04) sufficient to pay at maturity or upon
redemption all Securities of such series and all Coupons appertaining to such
Securities not theretofore
51
delivered to the Trustee for cancellation, including principal (and premium, if
any), interest, if any, and Additional Amounts, if any, due or to become due to
such date of maturity or date fixed for redemption, as the case may be, and if
in either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then this
Indenture shall cease to be of further effect with respect to the Securities of
such series or any Coupons appertaining to such Securities, and the Trustee, on
demand of and at the cost and expense of the Company and subject to Section
15.04, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to the Securities of such series and all
Coupons appertaining to such Securities. The Company agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred by
the Trustee in connection with this Indenture or the Securities of such series
or any Coupons appertaining to such Securities.
Section 12.02. Satisfaction, Discharge and Defeasance of Securities of any
Series. If pursuant to Section 2.01 provision is made for the defeasance of
Securities of a series, then the provisions of this Section 12.02 shall be
applicable except as otherwise specified as contemplated by Section 2.01 for
Securities of such series. The Company shall cease to be under any obligation to
comply with any term, provision, condition or covenant of Section 4.07 and 4.08
with respect to the outstanding Securities of any series or any other term,
provision, condition or covenant of the outstanding Securities of any such
Series specified as contemplated by Section 2.01, when
(1) either
(A) with respect to all outstanding Securities of such
series, the Company has deposited or caused to be deposited with the
Trustee:
(i) as trust funds in trust for the purpose money (in
such currency in which such outstanding Securities and any
related Coupons are then specified as payable at stated
maturity) in an amount as will be; or
(ii) as obligations in trust for the purpose direct
noncallable obligations of, or noncallable obligations the
payment of principal of and interest on which is fully
guaranteed by, the United States of America (or, in the case
of Securities payable in a currency other than the US Dollars,
by the government that issued such currency), or to the
payment of which obligations or guarantees the full faith and
credit of the United States of America (or, in the case of
Securities payable in a currency other than the US Dollars, by
the government that issued such currency) is pledged, maturing
as to principal and interest in such amounts and at such times
as will, together with the income to accrue thereon (but
without reinvesting any proceeds thereof), be; or
(iii) a combination of (i) and (ii);
sufficient to pay and discharge the entire indebtedness on all
outstanding Securities of such series for principal (and premium, if
any), interest, if any, and
52
Additional Amounts, if any, to the stated maturity or any redemption
date as contemplated by the last paragraph of this Section 12.02, as
the case may be, in installments on the dates such principal (and
premium, if any), interest, if any, and Additional Amounts, if any,
shall be due; or
(B) the Company has properly fulfilled such other terms and
conditions to the satisfaction and discharge as is specified, as
contemplated by Section 2.01, as applicable to the Securities of
such series, and
(2) the Company has paid or caused to be paid all other sums payable
with respect to the outstanding Securities of such series, and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of the entire indebtedness on all outstanding Securities of any such
series have been complied with.
Notwithstanding the discharge and defeasance of any term, provision,
condition or covenant set forth in Section 4.07 and 4.08 with respect to the
Securities of a series or any term, provision, condition or covenant of the
Securities of a series specified as contemplated by Section 2.01 with respect to
the Securities of a series at the time outstanding, all other obligations of the
Company in this Indenture, including without limitation, the Company's primary
liability for the payment of the principal (premium, if any), interest, if any,
and Additional Amounts, if any, on all Securities of such series shall survive
until the payment of all such principal (premium, if any), interest, if any, and
Additional Amounts, if any, has been made, unless the Company has delivered to
the Trustee an Opinion of Counsel stating that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling or
(ii) since the date of execution of this Indenture, there has been a change in
the applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the holders of the outstanding
Securities and any related Coupons will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amounts and in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred. Upon delivery of such
opinion and satisfaction of the other conditions in this Section 12.02, the
Company shall be deemed to have paid and discharged the entire indebtedness of
all outstanding Securities of such series (and the Trustee shall execute proper
instruments acknowledging satisfaction and discharge of such indebtedness),
except (i) rights of registration of transfer and exchange in accordance with
Section 2.05, and (ii) substitution of mutilated, destroyed, lost or stolen
Securities in accordance with Section 2.07.
Any deposits with the Trustee referred to in Section 12.02(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any outstanding
Securities of such series are to be redeemed prior to their stated maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement or otherwise, the applicable escrow trust
agreement shall provide therefor and the Company shall make such arrangements as
53
are satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Section 12.03. Deposited Moneys to be Held in Trust by Trustee. All moneys
deposited with the Trustee pursuant to Section 12.01 or 12.02 shall be held in
trust and applied by it to the payment, either directly or through any paying
agent (including the Company acting as its own paying agent if permitted by the
terms of the Securities of such series as specified by Section 2.01), to the
Holders of the particular Securities and of any Coupons appertaining to such
Securities for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal (and premium, if any), interest, if any, and Additional Amounts, if
any.
Section 12.04. Paying Agent to Repay Moneys Held. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any
series all moneys with respect to such Securities then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be
repaid to it or paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys.
Section 12.05. Return of Unclaimed Moneys. Any moneys deposited with or
paid to the Trustee or any paying agent for the payment of the principal of (and
premium, if any), interest, if any, and Additional Amounts, if any, on any
Security and not applied but remaining unclaimed for two years after the date
upon which such principal (and premium, if any), interest, if any, and
Additional Amounts, if any, shall have become due and payable, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Company by the Trustee or such paying
agent on demand, and the Holder of such Security or any Coupon appertaining to
such Security shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, thereafter look only
to the Company for any payment which such Holder may be entitled to collect and
all liability of the Trustee or any paying agent with respect to such moneys
shall thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to moneys
deposited with it for any payment in respect of Unregistered Securities of any
series, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and once
in an Authorized Newspaper in London (and, if required by Section 4.04, once in
an Authorized Newspaper in Luxembourg), notice that such moneys remain and that,
after a date specified therein, which shall not be less than thirty days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
ARTICLE THIRTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
Section 13.01. Indenture and Securities Solely Corporate Obligations. No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any past, present or future incorporator, stockholder, officer or
director, as such, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, under any rule of
law, statute or
54
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of the Securities and Coupons.
ARTICLE FOURTEEN.
GUARANTEE.
Section 14.01. Unconditional Guarantee. Each Guarantor hereby
unconditionally guarantees (such guarantee is referred to herein as a
"GUARANTEE"), jointly and severally, to each Holder of a Security and to the
Trustee, the prompt payment when due (whether by acceleration or otherwise) at
the place and in the manner provided in the terms of the Securities and in this
Indenture of: (i) the principal of, (premium, if any), interest, if any, and
Additional Amounts, if any, on each of the Securities at the respective times
provided in the terms of the Securities and in this Indenture, whether at
maturity, by acceleration or otherwise and whether any such amounts are allowed
or allowable in any bankruptcy or insolvency of the Company, (ii) interest on
any overdue amounts specified in the terms of the Securities and in this
Indenture, and (iii) all other amounts payable by the Company hereunder or under
the Securities including without limitation, amounts payable to the Trustee or
the Holders under Section 7.06 and Article Six, all in accordance with the terms
hereof and the terms of the Securities, subject, however, in the case of clauses
(i), (ii) and (iii) above, to the limitations set forth in Section 14.03. In
case of any extension of time of payment or renewal of any Securities or of any
such other payment obligations, each Guarantor hereby agrees to pay promptly
such Securities in full when due in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration or otherwise. This is a
guarantee of payment and not of collection. Each Guarantor hereby agrees that
its obligations hereunder shall be absolute unconditional, irrespective of any
lack of validity, regularity or enforceability of the Securities or this
Indenture, any failure to enforce the same, any waiver or consent to the Company
with respect thereto by any Holder or the Trustee, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor. Each Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this
Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and in this Guarantee.
If any Holder or the Trustee is required by any court or otherwise to return to
the Company, any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or any Guarantor, any amount
paid by the Company or any Guarantor to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor further agrees that, as between each Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six hereof for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article Six hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by each Guarantor for
the purpose of this Guarantee. Each Guarantor further agrees to pay all
reasonable external attorneys' fees,
55
costs and expenses incurred by the Trustee in connection with the collection of
any amounts payable hereunder or any enforcement of the Guarantee.
Section 14.02. Severability. In case any provision of this Guarantee shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 14.03. Limitation of Guarantor's Liability. Each Guarantor and by
its acceptance hereof each Holder hereby confirms that it is the intention of
all such parties that the guarantee by such Guarantor pursuant to its Guarantee
not constitute a fraudulent transfer or conveyance for purposes of any
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar Federal or state law. To effectuate the foregoing
intention, the Holders and such Guarantor hereby irrevocably agree that the
obligations of such Guarantor under the Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to Section
14.05 hereof, result in the obligations of such Guarantor under the Guarantee
not constituting such fraudulent transfer or conveyance.
Section 14.04. Release of Guarantor. The Guarantee will, so long as no
Event of Default shall have occurred and be continuing, be automatically and
unconditionally released without any action on the part of the Trustee or the
Holders of the Securities: (1) if, as of the end of two consecutive fiscal years
(other than any fiscal year preceding the date upon which the Guarantor became a
Guarantor hereunder), the Guarantor no longer qualifies as a Significant
Subsidiary; (2) upon any sale, exchange or transfer, to any Person not an
Affiliate of the Company, of all of the Company's direct or indirect interest in
such Guarantor provided such sale is not prohibited under Article Eleven; (3)
upon the payment in full of the Securities; or (4) discharge of the Securities
pursuant to the penultimate paragraph of Section 12.02. The Trustee shall
deliver an appropriate instrument evidencing such release upon receipt of a
request by the Company accompanied by an Officers' Certificate and Opinion of
Counsel certifying as to the compliance with this Section 15.04.
Section 14.05. Contribution. In order to provide for just and equitable
contribution among the Guarantors, the Guarantors agree that in the event any
payment or distribution is made by any Guarantor (a "FUNDING GUARANTOR") under
its Guarantee, such Funding Guarantor shall be entitled to a contribution from
all other Guarantors in a pro rata amount based on the Adjusted Net Assets (as
defined below) of each Guarantor (including the Funding Guarantor) for all
payments, damages and expenses incurred by that Funding Guarantor in discharging
the Company's obligations with respect to the Securities or any other
Guarantor's obligations with respect to the Guarantee. "ADJUSTED NET ASSETS" of
such Guarantor at any date shall mean the lesser of the amount by which (x) the
fair value of the property of such Guarantor exceeds the total amount of
liabilities, including, without limitation, contingent liabilities (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date), but excluding liabilities under the Guarantee, of such Guarantor at such
date and (y) the present fair salable value of the assets of such Guarantor at
such date exceeds the amount that will be required to pay the probable liability
of such Guarantor on its debts (after giving effect to all other fixed and
56
contingent liabilities incurred or assumed on such date), excluding debt in
respect of the Guarantee of such Guarantor, as they become absolute and matured.
Section 14.06. Waiver of Subrogation. Until all Securities and all other
payment obligations of the Company hereunder or under any Securities are paid in
full, each Guarantor hereby irrevocably waives any claims or other rights which
it may now or hereafter acquire against the Company that arise from the
existence, payment, or enforcement of such Guarantor's obligations under the
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder against the Company, whether or
not such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and the Securities shall not have been paid in full, such amount shall
have been deemed to have been paid to such Guarantor for the benefit of, and
held in trust for the benefit of, the Holders, and shall, forthwith be paid to
the Trustee for the benefit of such Holders to be credited and applied upon the
Securities, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 14.06 is knowingly made in contemplation of
such benefits.
Section 14.07. Execution of Guarantee. (a) To evidence their Guarantee to
the Holders set forth in this Article Fourteen, each Guarantor hereby agrees to
execute the Guarantee in substantially the form attached hereto as Exhibit A,
which shall be endorsed on each Security ordered to be authenticated and
delivered by the Trustee after the date such Guarantor becomes a Guarantor;
provided, however, the Trustee may, in its sole discretion, require any
Guarantor that delivers a supplemental indenture pursuant to Section 4.08 to
execute after the date of such supplemental indenture a Guarantee on any
outstanding Security. Each Guarantor hereby agrees that its Guarantee set forth
in this Article Fourteen shall remain in full force and effect notwithstanding
any failure (i) to endorse on each Security a notation of such Guarantee or (ii)
to confirm that its obligations under the Guarantee shall survive any
consolidation, merger, sale or conveyance pursuant to Section 11.01. Each such
Guarantee shall be signed on behalf of each Guarantor by one of its authorized
Officers prior to the authentication of the Security on which it is endorsed,
and the delivery of such Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of such Guarantee on behalf of
such Guarantor. Such signatures upon the Guarantee may be by manual or facsimile
signature of such officers and may be imprinted or otherwise reproduced on the
Guarantee, and in case any such officer who shall have signed the Guarantee
shall cease to be such officer before the Security on which such Guarantee is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Security nevertheless may be authenticated and delivered
or disposed of as though the Person who signed the Guarantee had not ceased to
be such officer of the Guarantor.
(b) Any supplemental indenture entered into and delivered pursuant to
Section 4.08 shall provide such Guarantor's address for notice pursuant to
Section 15.03.
57
Section 14.08. Waiver of Stay, Extension or Usury Laws. Each Guarantor
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive such Guarantor from performing its Guarantee as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) each such Guarantor hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
Section 15.01. Benefits of Indenture Restricted to Parties and
Securityholders. Nothing in this Indenture or in the Securities or Coupons,
expressed or implied, shall give or be construed to give to any Person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities or Coupons, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities or Coupons.
Section 15.02. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
Section 15.03. Addresses for Notices, etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Company may be given
or served by being deposited postage prepaid first class mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee), as follows: Residential Capital Corporation, 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. Any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders of Securities to or on any Guarantor may be given
or served by being deposited postage prepaid first class mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee), at the address for such Guarantor set forth on Exhibit B hereto or in
the Supplemental Indenture pursuant to which such Guarantor shall have
guaranteed the Company's obligations hereunder. Any notice, direction, request
or demand by any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at its Corporate Trust Office, which is at the date of this Indenture, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, except that for purposes of presentation of
Securities for payment or registration of transfer or exchange, such term means
the office or agency which at any particular time its corporate agency business
shall be conducted, which at the date of this Indenture is 00 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 10005, Attention: Trust and Securities Services.
58
Section 15.04. Evidence of Compliance with Conditions Precedent. Upon any
application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he 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
Person, such condition or covenant has been complied with.
Section 15.05. Legal Holidays. Except as otherwise specified as
contemplated by Section 2.01 for Securities of any series, in any case where the
date of maturity of any interest, premium or Additional Amounts on or principal
of the Securities or the date fixed for redemption of any Securities shall not
be a Business Day in a city where payment thereof is to be made, then payment of
any interest, premium or Additional Amounts on, or principal of such Securities
need not be made on such date in such city but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
Section 15.06. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act (an "INCORPORATED PROVISION"), such
incorporated provision shall control.
Section 15.07. Execution in Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 15.08. New York Contract. This Indenture and each Security shall
be deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
said State. Any claims or proceedings in respect of this Indenture shall be
heard in a federal or state court located in the State of New York.
Section 15.09. Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purposes of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the
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Securities of any series (the "REQUIRED CURRENCY") into a currency in which a
judgment will be rendered (the "JUDGMENT CURRENCY"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the date on which final unappealable judgment is entered,
unless such day is not a New York Banking Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the New York
Banking Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full amount
of the Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, "NEW YORK BANKING DAY" means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to close.
Section 15.10. Severability of Provisions. Any prohibition, invalidity or
unenforceability of any provision of this Indenture in any jurisdiction shall
not invalidate or render unenforceable the remaining provisions hereto in such
jurisdiction and shall not invalidate or render unenforceable such provisions in
any other jurisdiction.
Section 15.11. Company Released From Indenture Requirements Under Certain
Circumstances. Whenever in this Indenture the Company shall be required to do or
not to do anything so long as any of the Securities of any series shall be
Outstanding, the Company shall, notwithstanding any such provision, not be
required to comply with such provisions if it shall be entitled to have this
Indenture satisfied and discharged pursuant to the provisions hereof, even
though in either case the Holders of any of the Securities of that series shall
have failed to present and surrender them for payment pursuant to the terms of
this Indenture.
Deutsche Bank Trust Company Americas hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
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IN WITNESS WHEREOF, RESIDENTIAL CAPITAL CORPORATION and each Guarantor a
party hereto, has caused this Indenture to be signed and acknowledged by its
Chairman of the Board or one of its Vice Chairmen of the Board or its President
or its Chief Executive Officer or its Chief Financial Officer or one of its
Executive Vice Presidents or one of its Senior Vice Presidents or one of its
Vice Presidents or its Managing Director or its Treasurer; and DEUTSCHE BANK
TRUST COMPANY AMERICAS has caused this Indenture to be signed, all as of the day
and year first above written.
RESIDENTIAL CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
and Director
GMAC RESIDENTIAL HOLDING CORP.,
as Guarantor
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
GMAC MORTGAGE CORPORATION,
as Guarantor
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
GMAC-RFC HOLDING CORP.,
as Guarantor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
61
RESIDENTIAL FUNDING CORPORATION,
as Guarantor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
HOMECOMINGS FINANCIAL NETWORK, INC.,
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
62
Exhibit A
FORM OF GUARANTEE
Each of the undersigned (the "Guarantors") hereby jointly and severally
unconditionally guarantees, to the extent set forth in the Indenture dated as of
June 24, 2005, among Residential Capital Corporation, as issuer, the Guarantors
and Deutsche Bank Trust Company Americas, as Trustee (as amended, restated or
supplemented from time to time, the "Indenture"), and subject to the provisions
of the Indenture, (a) the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities, when and as the same shall
become due and payable, whether at maturity, by acceleration or otherwise, the
due and punctual payment of interest on overdue principal of, and premium and,
to the extent permitted by law, interest, and the due and punctual performance
of all other obligations of the Issuer to the Holders or the Trustee, all in
accordance with the terms set forth in Article Fourteen of the Indenture, and
(b) in case of any extension of time of payment or renewal of any Securities or
any of such other obligations, that the same shall be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
Fourteen of the Indenture and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee.
IN WITNESS WHEREOF, each of the Guarantors has caused this Guarantee to be
signed by a duly authorized officer.
[THE GUARANTORS]
Dated:
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Exhibit B
NOTICE ADDRESS FOR GUARANTORS
GMAC RESIDENTIAL HOLDING CORP.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
tel.: (000) 000-0000
Attention: General Counsel
GMAC-RFC HOLDING CORPORATION
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
tel.: (000) 000-0000
Attention: General Counsel
GMAC MORTGAGE CORPORATION
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
tel.: (000) 000-0000
Attention: General Counsel
RESIDENTIAL FUNDING CORPORATION
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
tel.: (000) 000-0000
Attention: General Counsel
HOMECOMINGS FINANCIAL NETWORK, INC.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
tel.: (000) 000-0000
Attention: General Counsel
64
