B&W Draft of 10/10/96
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COUNTRYWIDE HOME LOANS, INC.
as Issuer
and
COUNTRYWIDE CREDIT INDUSTRIES, INC.
as Guarantor
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INDENTURE
Dated as of ______, 1996
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THE BANK OF NEW YORK
as Trustee
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SUBORDINATED DEBT SECURITIES
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TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
________, 1996 among Countrywide Home Loans, Inc., as Issuer, Countrywide Credit
Industries, Inc., as Guarantor and The Bank of New York, Trustee:
ACT SECTION INDENTURE SECTION
301(a)(1) ...................................................... 6.09
(a)(2) ...................................................... 6.09
310(a)(3) ...................................................... N.A.
(a)(4) ...................................................... N.A.
310(b) ......................................... 6.08; 6.10(a)(b) and (d)
310(c) ...................................................... N.A.
311(a) and (b) ................................................... 6.13
311(c) ...................................................... N.A.
312(a) .................................................... 4.01; 4.02(a)
312(b) and (c) ............................................... 4.02(b) and (c)
313(a) ...................................................... 4.04(a)
313(b)(1) ...................................................... N.A.
313(b)(2) ...................................................... 4.04(b)
313(c) ...................................................... 4.04(c)
313(d) ...................................................... 4.04(d)
314(a) ...................................................... 4.03
314(b) ...................................................... N.A.
314(c)(1) and (2) ................................................ 13.05
314(c)(3) ...................................................... N.A.
314(d) ...................................................... N.A.
314(e) ...................................................... 13.05
314(f) ...................................................... N.A.
315(a)(c) and (d) ................................................ 6.01
315(b) ...................................................... 5.08
315(e) ...................................................... 5.09
316(a)(1) ...................................................... 5.01; 5.07
316(a)(2) ...................................................... Omitted
316(a) last sentence ............................................. 7.04
316(b) ...................................................... 5.04
317(a) ...................................................... 5.02
317(b) ...................................................... 3.04(a)
318(a) ...................................................... 13.07
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THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
TABLE OF CONTENTS/*/
Page
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Parties.................................................................... 1
Recitals................................................................... 1
Authorization of Indenture................................................. 1
Compliance with Legal Requirements......................................... 1
Purpose of and Consideration for Indenture................................. 1
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.................................... 1
Affiliate............................................. 2
Authenticating Agent.................................. 2
Bankruptcy Law........................................ 2
Board of Directors.................................... 2
Board Resolution...................................... 2
Business Day.......................................... 3
Certificate........................................... 3
Common Securities..................................... 3
Common Securities Guarantee........................... 3
Company............................................... 3
Countrywide Trust..................................... 3
Custodian............................................. 3
Debt Security......................................... 4
Declaration........................................... 4
Default............................................... 4
Depositary............................................ 4
Event of Default...................................... 4
Exchange Act.......................................... 4
Global Security....................................... 4
Guarantee............................................. 4
Guarantor............................................. 4
Indenture............................................. 4
Institutional Trustee................................. 5
Interest.............................................. 5
Interest Payment Date................................. 5
Mortgage.............................................. 5
Officers' Certificate................................. 5
Opinion of Counsel.................................... 5
Original Issue Date................................... 5
Original Issue Discount Security...................... 5
Outstanding........................................... 5
Person................................................ 6
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/*/ THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A
PART OF THE INDENTURE.
i
Predecessor Security........................................... 6
Preferred Securities........................................... 7
Preferred Securities Guarantee................................. 7
Principal Office of the Trustee................................ 7
Responsible Officer............................................ 7
Security....................................................... 7
Securityholder................................................. 7
Security Register.............................................. 7
Senior Indebtedness............................................ 8
Subsidiary..................................................... 8
Trustee........................................................ 9
Trust Indenture Act............................................ 9
Trust Securities............................................... 9
U.S. Government Obligations.................................... 9
Yield to Maturity.............................................. 9
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally........................................... 10
SECTION 2.02. Form of Trustee's Certificate of Authentication........... 10
SECTION 2.03. Amount Unlimited; Issuable in Series...................... 10
SECTION 2.04. Authentication and Dating................................. 13
SECTION 2.05. Date and Denomination of Securities....................... 15
SECTION 2.06. Execution of Securities................................... 17
SECTION 2.07. Exchange and Registration of Transfer of Securities....... 18
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities........... 19
SECTION 2.09. Temporary Securities...................................... 20
SECTION 2.10. Cancellation of Securities Paid, etc...................... 21
SECTION 2.11. Global Securities......................................... 21
SECTION 2.12. CUSIP Numbers............................................. 22
SECTION 2.13. Unconditional Guarantees.................................. 23
SECTION 2.14. Execution of Guarantee.................................... 25
SECTION 2.15. Assumption by Guarantor................................... 25
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest................ 26
SECTION 3.02. Offices for Notices and Payments, etc..................... 26
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office........ 27
SECTION 3.04. Provision as to Paying Agent.............................. 27
SECTION 3.05. Certificate to Trustee.................................... 28
SECTION 3.06. Compliance with Consolidation Provisions.................. 28
ii
SECTION 3.07. Limitation on Dividends.................................... 28
SECTION 3.08. Covenants as to Countrywide Trusts......................... 29
SECTION 3.09. Calculation of Original Issue Discount..................... 30
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists..................................... 30
SECTION 4.02. Preservation and Disclosure of Lists....................... 30
SECTION 4.03. Reports by Guarantor....................................... 32
SECTION 4.04. Reports by the Trustee..................................... 33
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
AN EVENT OF DEFAULT
SECTION 5.01. Events of Default.......................................... 34
SECTION 5.02. Payment of Securities on Default; Suit Therefor............ 37
SECTION 5.03. Application of Moneys Collected by Trustee................. 40
SECTION 5.04. Proceedings by Securityholders............................. 40
SECTION 5.05. Proceedings by Trustee..................................... 41
SECTION 5.06. Remedies Cumulative and Continuing......................... 42
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by Majority
of Securityholders......................................... 42
SECTION 5.08. Notice of Defaults......................................... 43
SECTION 5.09. Undertaking to Pay Costs................................... 44
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee..................... 44
SECTION 6.02. Reliance on Documents, Opinions, etc....................... 46
SECTION 6.03. No Responsibility for Recitals, etc........................ 48
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents,
Transfer Agents or Registrar May Own Securities............ 47
SECTION 6.05. Moneys to be Held in Trust................................. 48
SECTION 6.06. Compensation and Expenses of Trustee....................... 48
SECTION 6.07. Officers' Certificate as Evidence.......................... 49
SECTION 6.08. Conflicting Interest of Trustee............................ 50
SECTION 6.09. Eligibility of Trustee..................................... 50
SECTION 6.10. Resignation or Removal of Trustee.......................... 50
SECTION 6.11. Acceptance by Successor Trustee............................ 52
SECTION 6.12. Succession by Merger, etc.................................. 54
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.............. 54
iii
SECTION 6.14. Authenticating Agents...................................... 54
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.................................. 56
SECTION 7.02. Proof of Execution by Securityholders...................... 57
SECTION 7.03. Who Are Deemed Absolute Owners............................. 57
SECTION 7.04. Securities Owned by Company or the Guarantor Deemed Not
Outstanding................................................ 58
SECTION 7.05. Revocation of Consents; Future Holders Bound............... 58
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings....................................... 59
SECTION 8.02. Call of Meetings by Trustee................................ 59
SECTION 8.03. Call of Meetings by Company, Guarantor or Securityholders.. 60
SECTION 8.04. Qualifications for Voting.................................. 60
SECTION 8.05. Regulations................................................ 60
SECTION 8.06. Voting..................................................... 61
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of
Securityholders............................................ 62
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.... 64
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.................................... 66
SECTION 9.04. Notation on Securities..................................... 66
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.......................................... 66
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company or Guarantor May Consolidate, etc., on Certain
Terms...................................................... 67
SECTION 10.02. Successor Corporation to be Substituted.................... 67
SECTION 10.03. Opinion of Counsel to be Given Trustee..................... 68
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
iv
SECTION 11.01. Discharge of Indenture..................................... 68
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be
Held in Trust by Trustee................................... 69
SECTION 11.03. Paying Agent to Repay Moneys Held.......................... 70
SECTION 11.04. Return of Unclaimed Moneys................................. 70
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations................................................ 70
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTOR
SECTION 12.01. Indenture and Securities Solely Corporate Obligations. 73
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors................................................. 73
SECTION 13.02. Official Acts by Successor Corporation..................... 73
SECTION 13.03. Surrender of Company Powers................................ 74
SECTION 13.04. Addresses for Notices, etc................................. 74
SECTION 13.05. Governing Law.............................................. 74
SECTION 13.06. Evidence of Compliance with Conditions Precedent........... 74
SECTION 13.07. Legal Holidays............................................. 75
SECTION 13.08. Trust Indenture Act to Control............................. 75
SECTION 13.09. Table of Contents, Headings, etc........................... 75
SECTION 13.10. Execution in Counterparts.................................. 75
SECTION 13.11. Separability............................................... 76
SECTION 13.12. Assignment................................................. 76
SECTION 13.13. Acknowledgement of Rights.................................. 76
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article................................... 77
SECTION 14.02. Notice of Redemption; Selection of Debt Securities......... 77
SECTION 14.03. Payment of Securities Called for Redemption................ 78
SECTION 14.04. Mandatory and Optional Sinking Fund........................ 79
ARTICLE XV
SUBORDINATION OF SECURITIES
v
SECTION 15.01. Agreement to Subordinate.................................... 81
SECTION 15.02. Default on Senior Indebtedness.............................. 82
SECTION 15.03. Liquidation; Dissolution; Bankruptcy........................ 82
SECTION 15.04. Subrogation................................................. 84
SECTION 15.05. Trustee to Effectuate Subordination......................... 85
SECTION 15.06. Notice by the Company and the Guarantor..................... 86
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness....... 87
SECTION 15.08. Subordination May Not Be Impaired........................... 87
Testimonium
Signatures
Acknowledgements
vi
THIS INDENTURE, dated as of _____, 1996, among Countrywide Home Loans,
Inc., a New York corporation (hereinafter sometimes called the "Company"),
Countrywide Credit Industries, Inc., a Delaware corporation (hereinafter
sometimes called the "Guarantor"), and The Bank of New York, a New York banking
corporation, as trustee (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue from time to time of its subordinated unsecured debentures,
notes or other evidence of indebtedness to be issued in one or more series (the
"Debt Securities") up to such principal amount or amounts as may from time to
time be authorized in accordance with the terms of this Indenture and, to
provide the terms and conditions upon which the Debt Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, for its lawful corporate purposes, the Guarantor has duly
authorized the execution and delivery of this Indenture and deems it appropriate
from time to time to issue its guarantee of the Debt Securities on the terms
herein provided (the "Guarantees" and, together with the Debt Securities, the
"Securities");
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the Securities
by the holders thereof, the Company and the Guarantor covenant and agree with
the Trustee for the equal and proportionate benefit of the respective holders
from time to time of the Securities or of a series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (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 1.01. All other terms used in this Indenture which
are defined in the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), or which are by reference therein defined in the Securities Act of 1933,
as amended (the "Securities Act"), shall (except as herein otherwise expressly
provided or unless the context otherwise requires) have the meanings 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. All accounting terms used
herein and not expressly defined shall have the meanings assigned to such terms
in accordance with generally accepted accounting principles and the term
"generally accepted accounting principles" means such accounting principles as
are generally accepted at the time of any computation. The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Authenticating Agent" shall mean any agent or agents of the Trustee
which at the time shall be appointed and acting pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" shall mean the board of directors or the
executive committee or any other duly authorized designated officers of the
Company or the Guarantor, as the case may be.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the Guarantor, as the case
may be, to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
2
"Business Day" shall mean, with respect to any series of Securities,
any day other than a day on which federal or state banking institutions in the
Borough of Manhattan, The City of New York, are authorized or obligated by law,
executive order or regulation to close.
"Certificate" shall mean a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company or the Guarantor, as the case may be.
"Common Securities" shall mean undivided beneficial interests in the
assets of a Countrywide Trust which rank pari passu with Preferred Securities
issued by such Countrywide Trust; provided, however, that upon the occurrence of
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an Event of Default, the rights of holders of Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights of holders of Preferred Securities.
"Common Securities Guarantee" shall mean, in respect of any
Countrywide Trust, any guarantee that the Guarantor may enter into with any
Person or Persons and that operates directly or indirectly for the benefit of
holders of Common Securities of such Countrywide Trust.
"Company" shall mean Countrywide Home Loans, Inc., a New York
corporation, and, subject to the provisions of Article Ten, shall include its
successors and assigns.
"Countrywide Trust" shall mean Countrywide Capital I, a Delaware
business trust, or any other similar trust created for the purpose of issuing
Preferred Securities in connection with the issuance of Securities under this
Indenture.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" shall have the meaning stated in
the first recital of this Indenture and more particularly means any debt
security or debt securities, as the case may be, authenticated and delivered
under this Indenture.
"Declaration", with respect to a Countrywide Trust, shall mean the
Amended and Restated Declaration of Trust of such Countrywide Trust.
3
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Depositary" shall mean, with respect to Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act, or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.03 or 2.11.
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Global Security" shall mean, with respect to any series of
Securities, a Security executed by the Company and delivered by the Trustee to
the Depositary or pursuant to the Depositary's instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
"Guarantee" means the agreement of the Guarantor, in the form set
forth in Section 2.13 hereof, to be endorsed on the Debt Securities
authenticated and delivered under this Indenture.
"Guarantor" means Countrywide Credit Industries, Inc., a corporation
duly organized and existing under the laws of the State of Delaware.
"Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented, or
both, and shall include the form and terms of particular series of Securities
established as contemplated hereunder.
"Institutional Trustee" has the meaning set forth in the Declaration
of the applicable Countrywide Trust.
"Interest" shall mean, when used with respect to noninterest bearing
Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any installment of
interest on a Debt Security of a particular series, shall mean the date
specified in such Debt Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Debt Securities of that series is due
and payable.
4
"Mortgage" shall mean and include any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, the President, any Managing Director or any Vice
President, and by the Treasurer, an Assistant Treasurer, the Comptroller, an
Assistant Comptroller, the Secretary or an Assistant Secretary of the Company or
the Guarantor, as the case may be, and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 13.06 if and to
the extent provided by the provisions of such Section.
"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 may be other
counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 13.06 if and to the extent required by the
provisions of such Section.
"Original Issue Date" of any Security (or any portion thereof) shall
mean the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" shall mean any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.01.
The term "outstanding", when used with reference to Debt Securities,
shall, subject to the provisions of Section 7.04, mean, as of any particular
time, all Debt Securities authenticated and delivered by the Trustee or the
Authenticating Agent under this Indenture, except
(a) Debt Securities theretofore cancelled by the Trustee or the
Authenticating Agent or delivered to the Trustee for
cancellation;
(b) Debt 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 Debt Securities, or
5
portions thereof, are to be redeemed prior to maturity thereof,
notice of such redemption shall have been given as provided in
Article Fourteen or provision satisfactory to the Trustee shall
have been made for giving such notice; and
(c) Debt Securities paid pursuant to Section 2.08 or in lieu of or in
substitution for which other Debt Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.08
unless proof satisfactory to the Company and the Trustee is
presented that any such Debt Securities are held by bona fide
holders in due course.
In determining whether the holders of the requisite principal
amount of outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.01.
"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.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt and guarantee and as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 2.08 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt and
guarantee as the lost, destroyed or stolen Security.
"Preferred Securities" shall mean undivided beneficial interests in
the assets of a Countrywide Trust which rank pari passu with Common Securities
issued by such Countrywide Trust; provided, however, that upon the occurrence of
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an Event of Default, the rights of holders of Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" shall mean, in respect of any
Countrywide Trust, any guarantee that the Guarantor may
6
enter into with The Bank of New York or other Persons that operates directly or
indirectly for the benefit of holders of Preferred Securities of such
Countrywide Trust.
"Principal Office of the Trustee", or other similar term, shall mean
the principal office of the Trustee, at which at any particular time its
corporate trust business shall be administered.
"Responsible Officer", when used with respect to the Trustee, shall
mean the chairman and vice chairman of the board of directors, the chairman or
vice chairman of the executive committee of the board of directors, the
president, any vice president, any assistant vice president, the cashier, any
assistant cashier, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any senior trust officer, any trust officer, the
controller, any assistant controller or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Security" or "Securities" means any Debt Security or Debt Securities
with a Guarantee endorsed thereon.
"Securityholder", "holder of Securities", or other similar terms,
shall mean any Person in whose name at the time a particular Security is
registered on the register kept by the Company or the Trustee for that purpose
in accordance with the terms hereof.
"Security Register" shall have the meaning specified in Section 2.07.
"Senior Indebtedness" means, with respect to the Company or the
Guarantor, as the case may be, (i) the principal, premium, if any, and interest
in respect of (A) indebtedness of such obligor for money borrowed and (B)
indebtedness evidenced by securities, debentures, bonds or other similar
instruments issued by such obligor; (ii) all capital lease obligations of such
obligor; (iii) all obligations of such obligor issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such obligor and
all obligations of such obligor under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(iv) all obligations of such obligor for the reimbursement on any letter of
credit, banker's acceptance, security purchase facility or similar credit
transaction; (v) all obligations of the type referred to in clauses (i) through
(iv) of other Persons for the
7
payment of which such obligor is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons secured by any lien on any property or asset of
such obligor (whether or not such obligation is assumed by such obligor), except
(1) any such indebtedness that contains express terms, or is issued under a
deed, indenture or other instrument that contains express terms, providing that
it is subordinate to or ranks pari passu with the Debt Securities, (2) any
indebtedness between or among the Company or the Guarantor and any of its
Affiliates, and (3) all other debt securities and guarantees in respect of those
debt securities, in any case issued by the Company or the Guarantor to (x) any
Countrywide Trust or (y) any other trust, or a trustee of such trust,
partnership or other entity affiliated with the Company or the Guarantor, as the
case may be, which is a financing vehicle of the Company or the Guarantor, as
the case may be (a "Financing Entity"), in connection with the issuance by such
Financing Entity of preferred securities of a similr nature to the Preferred
Securities or of other securities that rank pari passu with, or junior to, the
Preferred Securities.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of the
outstanding partnership or similar interests of which shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and one
or more of its Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner. For the purposes of
this definition, "voting stock" means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests, participations or
other equivalents having such power only by reason of the occurrence of a
contingency.
"Trustee" shall mean the Person identified as "Trustee" in the first
paragraph hereof, and, subject to the provisions of Article Six hereof, shall
also include its successors and assigns as Trustee hereunder. The term
"Trustee" as used with respect to a particular series of Securities shall mean
the trustee with respect to that series.
8
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939 as in
force at the date of execution of this Indenture, except as provided in Section
9.03.
"Trust Securities" shall mean Common Securities and Preferred
Securities of a Countrywide Trust.
"U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii), are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Yield to Maturity" shall mean the yield to maturity on a series of
Debt Securities, calculated at the time of issuance of such series of Debt
Securities, or if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the form as
shall be established by or pursuant to a Board Resolution and as set forth in an
Officers' Certificate of the Company and the Guarantor or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or
9
with any rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
In the event the Securities are issued in definitive form pursuant to
this Indenture, such Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Debt Securities
shall be in substantially the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York as Trustee
By
------------------------------
Authorized Signatory
SECTION 2.03. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series up to the
aggregate principal amount of Debt Securities of that series from time to time
authorized by or pursuant to a Board Resolution of the Company or pursuant to
one or more indentures supplemental hereto. Prior to the initial issuance of
Debt Securities of any series, there shall be established in or pursuant to a
Board Resolution of the Company and set forth in an Officers' Certificate of the
Company or established in one or more indentures supplemental:
(1) the title of the Debt Securities of the series (which shall
distinguish Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated
and delivered upon registration of transfer of, or in
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exchange for, or in lieu of, other Debt Securities of the series
pursuant to Section 2.07, 2.08, 2.09, 9.04 or 14.03);
(3) the date or dates on which the principal of and premium, if any,
on the Debt Securities of the series is payable;
(4) the rate or rates at which the Debt Securities of the series
shall bear interest, if any, or the method by which such interest
may be determined, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest
shall be payable or the manner of determination of such Interest
Payment Dates and the record dates for the determination of
holders to whom interest is payable on any such Interest Payment
Dates;
(5) the place or places where the principal of, and premium, if any,
and any interest on Debt Securities of the series shall be
payable;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debt Securities of the
series may be redeemed, in whole or in part, at the option of the
Company, pursuant to any sinking fund or otherwise:
(8) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund
or analogous provisions or at the option of a Securityholder
thereof and the price or prices at which and the period or
periods within which the price or prices at which, and the terms
and conditions upon which Debt Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to
such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series
shall be issuable;
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(10) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 5.01 or provable in bankruptcy pursuant to
Section 5.02;
(11) any Events of Default with respect to the Debt Securities of a
particular series, if not set forth herein;
(12) the form of the Securities of the series including the form of
the certificate of authentication of such series;
(13) any trustee, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Debt Securities
of such series;
(14) whether the Debt 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 Depositary for such Global Security or
Securities, and whether beneficial owners of interests in any
such Global Securities may exchange such interests for other Debt
Securities of such series in the manner provided in Section 2.07,
and the manner 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 2.07, and any other terms of the
series relating to the global nature of the Global Securities of
such series and the exchange, registration or transfer thereof
and the payment of any principal thereof, or interest or premium,
if any, thereon; and
(15) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and
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delivered to the Trustee at or prior to the delivery of the Officers'
Certificate of the Company setting forth the terms of the series.
(b) Prior to the issuance of any of the Guarantees, the exact form
and terms of such Guarantees, which shall comply with the terms of Section 2.13
hereof and contain such additional terms as are permitted by this Indenture,
shall be established by an Officers' Certificate of the Guarantor or in an
indenture supplemental hereto.
SECTION 2.04. Authentication and Dating.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company, together with the Guarantees endorsed thereon executed by the
Guarantor, to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Securities to or upon the
written order of the Company, signed by its Chairman of the Board of Directors,
President, one of its Managing Directors or one of its Vice Presidents and by
its Treasurer or any Assistant Treasurer, without any further action by the
Company hereunder. 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 6.01) shall be
fully protected in relying upon:
(1) a copy of any Board Resolution or Resolutions relating thereto
and, if applicable, an appropriate record of any action taken
pursuant to such resolution, in each case certified by the
Secretary or an Assistant Secretary of the Company or the
Guarantor as the case may be;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Sections 2.01 and 2.03,
respectively; and
(4) an Opinion of Counsel prepared in accordance with Section 13.06
which shall also state:
(a) that the form of such Securities has been established by or
pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.01 in
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conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been established by
or pursuant to a resolution of the Board of Directors or by
a supplemental indenture as permitted by Section 2.03 in
conformity with the provisions of this Indenture;
(c) that (i) such Debt Securities, when authenticated and
delivered by the Trustee and issued by the Company and (ii)
such Guarantees, when issued by the Guarantor, in each case
in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company and the Guarantor,
respectively;
(d) that all laws and requirements in respect of the execution
and delivery by the Company and the Guarantor of the Debt
Securities and the Guarantees, respectively, have been
complied with and that authentication and delivery of the
Securities by the Trustee will not violate the terms of the
Indenture; and
(e) such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or vice presidents shall determine
that such action would expose the Trustee to personal liability to existing
holders.
SECTION 2.05. Date and Denomination of Securities.
The Securities shall be issuable as registered Securities without
coupons and in such denominations as shall be specified as contemplated by
Section 2.03. In the absence of any such specification with respect to the
Securities of any series, the Securities of such Series shall be issuable in the
denominations of $1,000 and any multiple thereof. The Securities shall be
numbered, lettered, or otherwise distinguished in such manner or in accordance
with such plans as the officers executing
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the same may determine with the approval of the Trustee as evidenced by the
execution and authentication thereof.
Every Security shall be dated the date of its authentication, shall
bear interest, if any, from such date and shall be payable on such dates, in
each case, as contemplated by Section 2.03. The interest installment on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Securities of that series shall be paid to the Person
in whose name said Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for such interest
installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon presentation
and surrender of such Security as provided in Section 14.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for a Security of the
same series (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered holder on the relevant regular record date by virtue
of having been such holder; and such Defaulted Interest shall be paid by the
Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest
which shall not be more than 15 nor less than ten days prior to the date of
the proposed payment and not less than ten days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record
15
date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security Register
(as hereinafter defined), not less than ten days prior to such special
record date. Notice of the proposed payment of such Defaulted Interest and
the special record date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered on
such special record date and shall be no longer payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
Unless otherwise set forth in a Board Resolution of the Company or one
or more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
Interest Payment Date for such series shall mean either the fifteenth day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a
Business Day.
Subject to the foregoing provisions of this Section, each Security of
a series delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Security.
SECTION 2.06. Execution of Securities.
The Securities shall be signed in the name and on behalf of the
Company by, and the Guarantees endorsed thereon shall be signed on behalf of the
Guarantor by, the facsimile
16
signature of its Chairman of the Board of Directors, President, one of its
Managing Directors or one of its Vice-Presidents and by the facsimile signature
of its Treasurer or one of its Assistant Treasurers, under its corporate seal
which may be affixed thereto or printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise, and which need not be attested. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee or the Authenticating
Agent, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee or the
Authenticating Agent upon any Security executed by the Company and the Guarantor
shall be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company or the Guarantor who shall have
signed any of the Securities shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the Trustee
or the Authenticating Agent, or disposed of by the Company, such Securities
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Securities had not ceased to be such officer of the
Company or the Guarantor, as the case may be; and any Security may be signed on
behalf of the Company or the Guarantor by such Persons as, at the actual date of
the execution of such Security, shall be the proper officers of the Company or
the Guarantor, as the case may be, although at the date of the execution of this
Indenture any such person was not such an officer.
SECTION 2.07. Exchange and Registration of Transfer of Securities.
Subject to Section 2.03(14), Securities of any series may be exchanged for
a like aggregate principal amount of Securities of the same series of other
authorized denominations. Securities to be exchanged may be surrendered at the
principal corporate trust office of the Trustee or at any office or agency to be
maintained by the Company for such purpose as provided in Section 3.02, and the
Company and the Guarantor shall execute, the Company or the Trustee shall
register and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery in exchange therefor the Security or Securities which the
Securityholder making the exchange shall be entitled to receive. Upon due
presentment for registration of transfer of any Security of any series at the
principal corporate trust office of the Trustee or at any office or agency of
the Company maintained for such purpose as provided in Section 3.02, the Company
and the
17
Guarantor shall execute, the Company or the Trustee shall register and the
Trustee or the Authenticating Agent shall authenticate and make available for
delivery in the name of the transferee or transferees a new Security or
Securities of the same series for a like aggregate principal amount.
Registration or registration of transfer of any Security by the Trustee or by
any agent of the Company appointed pursuant to Section 3.02, and delivery of
such Security, shall be deemed to complete the registration or registration of
transfer of such Security.
The Company or the Trustee shall keep, at the principal corporate
trust office of the Trustee, a register (the "Security Register") for each
series of Securities issued hereunder in which, subject to such reasonable
regulations as it may prescribe, the Company or the Trustee shall register all
Securities and shall register the transfer of all Securities as in this Article
Two provided. Such register shall be in written form or in any other form
capable of being converted into written form within a reasonable time.
All Securities presented for registration of transfer or for exchange
or payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Authenticating Agent 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 Securities, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection therewith.
The Company or the Trustee shall not be required to exchange or
register a transfer of (a) any Security for a period of 15 days next preceding
the date of selection of Securities of such series for redemption, or (b) any
Securities of any series selected, called or being called for redemption in
whole or in part, except in the case of any Securities of any series to be
redeemed in part, the portion thereof not so to be redeemed.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company and the Guarantor shall execute, and
upon its request the Trustee shall authenticate and deliver, a new Security of
the same series bearing a number not contemporaneously outstanding, in exchange
18
and substitution for the mutilated Security, or in lieu of and in substitution
for the Security so destroyed, lost or stolen. In every case the applicant for
a substituted Security shall furnish to the Company, the Guarantor and 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, the Guarantor and the Trustee evidence to
their satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses connected
therewith. In case any Security which has matured or is about to mature or has
been called for redemption in full shall become mutilated or be destroyed, lost
or stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the
Company, the Guarantor and the Trustee such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and to the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security of any series issued pursuant to the
provisions of this Section 2.08 by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company or the Guarantor, as the case may be, whether or not the
destroyed, lost or stolen Security shall be found at any time, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same series duly issued hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by applicable law, the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities and shall 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 2.09. Temporary Securities.
19
Pending the preparation of definitive Securities of any series, the
Company and the Guarantor may execute and the Trustee shall authenticate and
make available for delivery temporary Securities (printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination, and
substantially in the form of the definitive Securities but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every such temporary Security shall be
executed by the Company and the Guarantor and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the same
effect, as the definitive Securities. Without unreasonable delay the Company
and the Guarantor will execute and deliver to the Trustee or the Authenticating
Agent definitive Securities and thereupon any or all temporary Securities of
such series may be surrendered in exchange therefor, at the principal corporate
trust office of the Trustee or at any office or agency maintained by the Company
for such purpose as provided in Section 3.02, and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in
exchange for such temporary Securities a like aggregate principal amount of such
definitive Securities. Such exchange shall be made by the Company at its own
expense and without any charge therefor except that in case of any such exchange
involving a registration of transfer the Company may require payment of a sum
sufficient to cover any tax, fee or other governmental charge that may be
imposed in relation thereto. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series authenticated and
delivered hereunder.
SECTION 2.10. Cancellation of Securities Paid, etc.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer, shall, if surrendered to the Company, the
Guarantor or any paying agent, be surrendered to the Trustee and promptly
cancelled by it, or, if surrendered to the Trustee or any Authenticating Agent,
shall be promptly cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. All Securities cancelled by any Authenticating Agent shall be
delivered to the Trustee. The Trustee shall deliver all cancelled Securities to
the Company. If the Company shall acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation.
SECTION 2.11. Global Securities.
20
(a) If the Company shall establish pursuant to Section 2.03 that the
Securities of a particular series are to be issued as a Global Security, then
the Company and the Guarantor shall execute and the Trustee shall, in accordance
with Section 2.04, authenticate and deliver, a Global Security that (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the outstanding Securities of such series, (ii)
shall be registered in the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Except as otherwise provided in Section 2.11 of the Indenture, this Security
may be transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary."
(b) Notwithstanding the provisions of Section 2.07, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.07, only to another nominee of the Depositary for
such series, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer
be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.11 shall
no longer be applicable to the Securities of such series and the Company and the
Guarantor will execute, and subject to Section 2.07, the Trustee will
authenticate and make available for delivery the Securities of such series in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series shall no
longer be represented by a Global Security and that the provisions of this
Section 2.11 shall no longer apply to the Securities of such series. In such
event the Company and the Guarantor will execute and subject to Section 2.07,
the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and make available for delivery
the Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
21
principal amount of the Global Security of such series in exchange for such
Global Security. Upon the exchange of the Global Security for such Securities
in definitive registered form without coupons, in authorized denominations, the
Global Security shall be cancelled by the Trustee. Such Securities in
definitive registered form issued in exchange for the Global Security pursuant
to this Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
SECTION 2.12. CUSIP Numbers
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Securityholders; provided that any such notice
--------
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
SECTION 2.13. Unconditional Guarantees.
(FORM OF GUARANTEE)
FOR VALUE RECEIVED, the Guarantor hereby unconditionally guarantees to
the holder of the Security upon which this Guarantee is endorsed the due and
punctual payment of the principal of, sinking fund payment, if any, premium, if
any, or interest on said Security, when and as the same shall become due and
payable, whether at maturity, upon redemption or otherwise, according to the
terms thereof and of the Indenture referred to therein.
The Guarantor agrees to determine, at least one Business Day prior to
the date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, or interest on said Security is due and payable, whether the
Company has available the funds to make such payment as the same shall become
due and payable. In case of the failure of the Company punctually to pay any
such principal, sinking fund payment, if any, premium, if any, or interest, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether at maturity, upon
22
redemption, or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Security or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the holder of said
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to said Security or indebtedness evidenced
thereby, and all demands whatsoever and covenants that this Guarantee will not
be discharged except by complete performance of the obligations contained in
said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the holder of said
Security against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the holders of all of the Securities
then outstanding, be entitled to enforce or to receive any payments arising out
of or based upon such right of subrogation until the principal of and premium,
if any, and interest on all Securities shall have been paid in full or payment
thereof shall have been provided for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of principal or interest by the Company on the Securities
to the holders of the Securities it is determined by a final decision of a court
of competent jurisdiction that such payment shall be avoided by a trustee in
bankruptcy (including any debtor-in-possession) as a preference under 11 U.S.C.
Section 547 and such payment is paid by such holder to such trustee in
bankruptcy, then and to the extent of such repayment, the obligations of the
Guarantor hereunder shall remain in full force and effect.
The obligations of the Guarantor under this Guarantee are, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Guarantee is issued
subject to the provisions of the Indenture with respect thereto.
23
Each holder of the Security upon which this Guarantee is endorsed, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each holder of the Security upon which this Guarantee is
endorsed, by his or her acceptance thereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each holder upon said provisions.
This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Security until the certificate of authentication on such
Security shall have been signed by the Trustee (or the Authentication Agent).
This Guarantee shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, Countrywide Credit Industries, Inc. has caused
this Guarantee to be signed in its corporate name by the facsimile signature of
two of its officers thereunto duly authorized and has caused a facsimile of its
corporate seal to be affixed hereunto or imprinted or otherwise reproduced
hereon.
SECTION 2.14. Execution of Guarantee
To evidence the Guarantee to the Securityholders specified in Section
2.13, the Guarantor hereby agrees to execute the Guarantees, in substantially
the form above recited, to be endorsed on each Security authenticated and
delivered by the Trustee (or the Authenticating Agent). Each such Guarantee
shall be signed on behalf of the Guarantor as set forth in Section 2.06 to the
authentication of the Security on which it is endorsed and the delivery of such
Security by the Trustee (or the Authenticating Agent), after the authentication
thereof hereunder, shall constitute due delivery of such Guarantee on behalf of
the Guarantor.
SECTION 2.15. Assumption by Guarantor
(a) The Guarantor may, without the consent of the Securityholders,
assume all of the rights and obligations of the Company hereunder with respect
to a series of Securities and under the Securities of such series if, after
giving effect to such assumption, no Default or Event of Default shall have
occurred and be continuing. Upon such an assumption, the
24
Guarantor shall execute a supplemental indenture evidencing its assumption of
all such rights and obligations of the Company and the Company shall be released
from its liabilities hereunder and under such Securities as obligor on the
Securities of such series.
(b) The Guarantor shall assume all of the rights and obligations of
the Company hereunder with respect to a series of Securities and under the
Securities of such series if, upon a default by the Company in the due and
punctual payment of the principal, sinking fund payment, if any, premium, if
any, or interest on such Securities, the Guarantor is prevented by any court
order or judicial proceeding from fulfilling its obligations under Section 2.13
with respect to such series of Securities. Such assumption shall result in the
Securities of such series becoming the direct obligations of the Guarantor and
shall be effected without the consent of the holders of the Securities of any
series. Upon such an assumption, the Guarantor shall execute a supplemental
indenture evidencing its assumption of all such rights and obligations of the
Company, and the Company shall be released from its liabilities hereunder and
under such Securities as obligor on the Securities of such series.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on each of the Debt Securities of
that series at the place, at the respective times and in the manner provided in
such Debt Securities. At the option of the Company, each installment of
interest on the Debt Securities of any series may be paid (i) by mailing checks
for such interest payable to the order of the holders of Debt Securities
entitled thereto as they appear on the registry books of the Company or (ii) if
so specified with respect to the Securities of such series as contemplated by
Section 2.03, by wire transfer to any account designated by such Person.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remain outstanding, the Company will
maintain in the Borough of Manhattan, The City
25
of New York, an office or agency where the Securities of each series may be
presented for payment, an office or agency where the Securities of that series
may be presented for registration or transfer and for exchange as in this
Indenture provided and an office or agency where notices and demands to or upon
the Company in respect of the Securities of that series or of this Indenture may
be served. The Company will give to the Trustee written notice of the location
of any such office or agency and of any change of location thereof. Until
otherwise designated from time to time by the Company in a notice to the
Trustee, or specified as contemplated by Section 2.03, such office or agency for
all of the above purposes shall be the office or agency of the Trustee. 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 and demands may
be made and notices may be served at the principal corporate trust office of the
Trustee.
In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside the Borough of Manhattan,
The City of New York, where the Securities may be presented for registration of
transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the Company may deem
desirable or expedient; provided, however, that no such designation or
-------- -------
rescission shall in any manner relieve the Company of its obligation to maintain
any such office or agency in the Borough of Manhattan, The City of New York, for
the purposes above mentioned. The Company will give to the Trustee prompt
written notice of any such designation or rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If 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 provision of this Section 3.04,
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(1) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or
interest, if any, on the Securities of such series (whether
such sums have been paid to it by the Company or by any
other obligor on the Securities of such series) in trust for
the benefit of the holders of the Securities of such series;
and
(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 and premium,
if any, or interest, if any, on the Securities of such
series when the same shall be due and payable.
(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, or
interest, 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 a sum sufficient to pay such principal,
premium or interest so becoming due and will notify the Trustee
of any failure to take such action and of any failure by the
Company (or by any other obligor under the Securities of such
series) to make any payment of the principal of and premium, if
any, or interest, if any, on the Securities of such series when
the same shall become due and payable.
(c) Anything in this Section 3.04 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
direct any paying agent to pay to the Trustee all sums held in
trust for any such series by the Company or any such paying
agent, such sums to be held by the Trustee upon the trusts herein
contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section
3.04 is subject to Sections 11.03 and 11.04.
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SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days after
the end of each fiscal year in each year, so long as Securities of any series
are outstanding hereunder, a Certificate stating that in the course of the
performance by the signers of their duties as officers of the Company they would
normally have knowledge of any default by the Company in the performance of any
covenants contained herein, stating whether or not they have knowledge of any
such default and, if so, specifying each such default of which the signers have
knowledge and the nature thereof.
SECTION 3.06. Compliance with Consolidation Provisions.
Neither the Company nor the Guarantor will, while any of the
Securities remain outstanding, consolidate with, or merge into, or merge into
itself, or sell or convey all or substantially all of its property to any other
company unless the provisions of Article Ten hereof are complied with.
SECTION 3.07. Limitation on Dividends.
If Securities are issued to a Countrywide Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such Countrywide
Trust and (i) there shall have occurred and be continuing any event that would
constitute an Event of Default, (ii) the Guarantor shall be in default with
respect to its payment of any obligations under the Preferred Securities
Guarantee or Common Securities Guarantee relating to such Countrywide Trust, or
(iii) the Company shall have given notice of its election to defer payments of
interest on such Securities by extending the interest payment period as provided
in the Indenture and such period, or any extension thereof, shall be continuing,
then (a) the Guarantor and the Company shall not declare or pay any dividend on,
make any distributions with respect to, or redeem, purchase or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of the Company's or the Guarantor's capital
stock in connection with the satisfaction by the Company or the Guarantor,
respectively, of their obligations under any employee benefit plans, (ii) as a
result of a reclassification of the Company's or the Guarantor's capital stock
or the exchange or conversion of one class or series of the Company's or the
Guarantor's capital stock for another class or series of the Company's or the
Guarantor's capital stock, or in any such case, any rights to acquire any such
stock, (iii) the purchase of fractional interests in shares of the Company's or
the Guarantor's capital stock pursuant to the conversion or
28
exchange provisions of such capital stock or the security being converted or
exchanged or (iv) dividends or distributions made on the Company's or the
Guarantor's capital stock or rights to acquire such stock with the Company's or
the Guarantor's capital stock or rights to acquire such stock) or make any
guarantee payments with respect to the foregoing, and (b) the Guarantor and the
Company shall not make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities (including guarantees) issued
by the Guarantor or the Company which rank pari passu with or junior to such
Securities.
SECTION 3.08. Covenants as to Countrywide Trusts.
In the event Securities are issued to a Countrywide Trust or a trustee
of such trust in connection with the issuance of Trust Securities by such
Countrywide Trust, for so long as such Trust Securities remain outstanding, the
Guarantor will (i) maintain 100% direct ownership of the Common Securities of
such Countrywide Trust, (ii) use its reasonable efforts to cause such
Countrywide Trust (a) to remain a business trust, except in connection with a
distribution of Securities, the redemption of all of the Trust Securities of
such Countrywide Trust or certain mergers, consolidations or amalgamations, each
as permitted by the Declaration of such Countrywide Trust, and (b) to otherwise
continue not to be treated as an association taxable as a corporation or
partnership for United States federal income tax purposes and (iii) use its
reasonable efforts to cause each holder of Trust Securities to be treated as
owning an undivided beneficial interest in the Securities.
SECTION 3.09. Calculation of Original Issue Discount
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on outstanding Debt
Securities as of the end of such year.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or caused to be
furnished to the Trustee:
29
(a) on each regular record date for each series of Securities, a
list, in such form as the Trustee may reasonably require, of the
names and addresses of the Securityholders of such series of
Securities as of such record date (and on dates to be determined
pursuant to Section 2.03 for non-interest bearing securities in
each year); and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15
days prior to the time such list is furnished; except that no
such lists need be furnished under this Section 4.01 so long as
the Trustee is in possession thereof by reason of its acting as
Security registrar for such series.
SECTION 4.02. 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 (1) contained in the most
recent list furnished to it as provided in Section 4.01 or (2)
received by it in the capacity of Securities registrar (if so
acting) hereunder. The Trustee may destroy any list furnished to
it as provided in Section 4.01 upon receipt of a new list so
furnished.
(b) In case three or more holders of Securities of any series
(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 such series or
with holders of all Securities with respect to their rights under
this Indenture or under such Securities and is accompanied by a
copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall within
five Business Days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance
30
with the provisions of subsection (a) of this Section 4.02, or
(2) inform such applicants as to the approximate number of holders 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 4.02, 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 such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Securityholder 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 4.02 a copy of the form of proxy or other
communication which is specified in such request with reasonable
promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file
with the 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 1 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 Securityholders with reasonable promptness after the entry
of such order and the renewal of such
31
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 Company, the Guarantor and the Trustee that
neither the Company, the Guarantor nor the Trustee nor any paying
agent 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 4.02, regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a
request made under said subsection (b).
SECTION 4.03. Reports by Guarantor.
(a) The Guarantor covenants and agrees to file with the Trustee,
within 15 days after the Guarantor 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 Guarantor may be required to file with said
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Guarantor 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) The Guarantor covenants and agrees 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
32
Guarantor with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations.
(c) The Guarantor covenants and agrees to transmit by mail to all
holders of Securities, as the names and addresses of such holders
appear upon the Security register, within 30 days after the
filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Guarantor pursuant to subsections (a) and (b) of this Section
4.03 as may be required by rules and regulations prescribed from
time to time by the Securities and Exchange Commission.
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Guarantor compliance with any of
its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Certificates and Officers' Certificates).
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall,
within 60 days after each May 15 following the date of this
Indenture deliver to Securityholders a brief report, dated as of
such May 15, which complies with the provisions of such Section
313(a).
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with
each stock exchange, if any, upon which the Securities are
listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are listed
on any stock exchange.
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ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
AN EVENT OF DEFAULT
SECTION 5.01. Events of Default.
The following Events of Default with respect to Securities of any
series or such other events as may be established with respect to the Securities
of that series as contemplated by Section 2.03 hereof shall be "Events of
Default" with respect to Securities of that series:
(a) the Company or the Guarantor defaults in the payment of any
interest upon any Securities of that series when it becomes due
and payable, and continuance of such default for a period of 30
days; provided, however, that a valid extension of an interest
-------- -------
payment period by the Company in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in
the payment of interest for this purpose; or
(b) the Company or the Guarantor defaults in the payment of all or
any part of the principal of (or premium, if any, on) any
Securities of that series as and when the same shall become due
and payable either at maturity, upon redemption (including
redemption for any sinking fund), by declaration or otherwise;
provided, however, that a valid extension of the maturity of such
-------- -------
Securities in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment
of principal or premium, if any; or
(c) the Company or the Guarantor defaults in the performance, or
breach, of any of its covenants or warranties in this Indenture
(other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt
with and other than those set forth exclusively in terms of any
particular series of Securities established as contemplated in
this Indenture), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or
certified mail, to the Company and the Guarantor by the Trustee
or to the Company, the Guarantor and the Trustee by the holders
of at least 25% in principal amount of the outstanding
Securities,
34
without regard to series, a written notice specifying such
default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company or the Guarantor in
an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Company or the Guarantor or for any
substantial part of its property, or ordering the winding-up or
liquidation of its affairs and such decree or order shall remain
unstayed and in effect for a period of 90 consecutive days; or
(e) the Company or the Guarantor shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, shall consent to the entry of an
order for relief in an involuntary case under any such law, or
shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of the Company or the Guarantor or of
any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail generally
to pay its debts as they become due; or
(f) in the event the Securities of that series are issued to a
Countrywide Trust or a trustee of such trust in connection with
the issuance of Trust Securities by such Countrywide Trust, such
Countrywide Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its
existence except in connection with (i) the distribution of the
Securities to holders of such Trust Securities in liquidation of
their interests in such Countrywide Trust, (ii) the redemption of
all of the outstanding Trust Securities of such Countrywide Trust
or (iii) certain mergers, consolidations or amalgamations, each
as permitted by the Declaration of such Countrywide Trust.
If an Event of Default occurs and is continuing with respect to any
series of Securities, then, and in each and every
35
such case, unless the principal of all of the Securities of that series shall
have already become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of the Securities of that series
then outstanding hereunder, by notice in writing to the Company and the
Guarantor (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all Securities of that series and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, 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 or the Guarantor shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of and premium, if any, on any and all
Securities of such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series, (or at
the respective rates of interest or Yields to Maturity of all the Securities, as
the case may be) to the date of such payment or deposit) and such amount as
shall be sufficient to cover reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith, and
if any and all Events of Default under the Indenture, other than the non-payment
of the principal of or premium, if any, on Securities which shall have become
due by acceleration, shall have been cured, waived or otherwise remedied as
provided herein -- 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
36
(or with respect to all Securities, as the case may be, in such case, treated as
a single class) and rescind and annul such declaration and its consequences, but
no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Guarantor, the Trustee and the holders of the Securities shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company, the Guarantor, the Trustee and the
holders of the Securities shall continue as though no such proceeding had been
taken.
SECTION 5.02. Payment of Securities on Default; Suit Therefor.
The Company and the Guarantor covenant that (a) in case default shall
be made in the payment of any installment of interest upon any of the Securities
of any series as and when the same shall become due and payable, and such
default shall have continued for a period of 30 days, or (b) in case default
shall be made in the payment of the principal of or premium, if any, on any of
the Securities of any series as and when the same shall have become due and
payable, whether at maturity of the Securities of that series or upon redemption
or by declaration or otherwise -- then, upon demand of the Trustee, the Company
or the Guarantor will pay to the Trustee, for the benefit of the holders of the
Securities of that series the whole amount that then shall have become due and
payable on all such Securities of that series for principal and premium, if any,
or interest, or both, as the case may be, with interest upon the overdue
principal and premium, if any, and (to the extent that payment of such interest
is enforceable under applicable law and, if the Securities are held by a
Countrywide Trust or a trustee of such trust, without duplication of any other
amounts paid by the Guarantor or such Countrywide Trust or trustee in respect
thereof) upon the overdue installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Securities) borne by the
Securities of that series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any expenses or liabilities incurred by the Trustee hereunder other than through
its negligence or bad faith.
37
In case the Company or the Guarantor 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 actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
the Guarantor or any other obligor on such Securities and collect in the manner
provided by law out of the property of the Company or the Guarantor or any other
obligor on 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 the Guarantor or any other obligor on the
Securities of any series under Xxxxx 00, Xxxxxx Xxxxxx Code, or any other
applicable law, or in case a receiver or trustee shall have been appointed for
the property of the Company or the Guarantor or such other obligor, or in the
case of any other similar judicial proceedings relative to the Company or the
Guarantor or other obligor upon the Securities of any series, or to the
creditors or property of the Company or the Guarantor or such other obligor, the
Trustee, irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 5.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and interest (or, if the
Securities of that series are Original Issue Discount Securities such portion of
the principal amount as may be specified in the terms of that series) owing and
unpaid in respect of the Securities of such series and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee, except as a result of negligence or
bad faith) and of the Securityholders allowed in such judicial proceedings
relative to the Company or the Guarantor or any other obligor on the Securities
of any series, or to the creditors or property of the Company or the Guarantor
or such other obligor, unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities or any series in any election of
a trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or
38
person performing similar functions in comparable proceedings, and to collect
and receive any moneys or other property payable or deliverable on any such
claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the Securityholders to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be construed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder 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 the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the holders of the
Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities, and it shall not be necessary to make any holders of the
Securities parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the following
order, at the date or dates fixed by the Trustee for the distribution of such
moneys, upon presentation of the several Securities in respect of which moneys
have been collected, and stamping thereon the payment, if only partially paid,
and upon surrender thereof if fully paid:
39
First: To the payment of costs and expenses of collection applicable
to such series and reasonable compensation to the Trustee, its agents, attorneys
and counsel, and of all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad faith;
Second: To the payment of all Senior Indebtedness of the Company if
and to the extent required by Article Fifteen;
Third: In case the principal of the outstanding Securities in
respect of which moneys have been collected shall not have become due and be
unpaid, to the payment of the amounts then due and unpaid upon Securities of
such series for principal (and premium, if any), and interest on the Securities
of such series, in respect of which or for the benefit of which money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due on such Securities for principal (and premium, if any) and interest,
respectively; and
Fourth: The balance, if any, to the Company.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Security of any series shall have any right by virtue
of or by availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Securities of such series specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Securities of that series then outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action, suit or proceeding, 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 of any series shall have any right in any manner whatever
by virtue of or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other holder of 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
40
herein provided and for the equal, ratable and common benefit of all holders of
Securities of the applicable series.
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Security to receive payment of the principal of
(premium, if any) and interest, if any, on such Security, on or after the same
shall have become due and payable, or to institute suit for the enforcement of
any such payment, shall not be impaired or affected without the consent of such
holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series
with every other such taker and holder and the Trustee, that no one or more
holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other 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 of series. 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.
SECTION 5.05. Proceedings by Trustee.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as otherwise provided in Section 2.08, all powers and remedies
given by this Article Five to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture or otherwise
established with respect to such series, and no delay or omission of the Trustee
or of any
41
holder of any of the Securities to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 5.04, every
power and remedy given by this Article Five or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders.
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 (subject to
-------- -------
the provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine that the action so
directed would be unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, 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 any series of
the Securities, or of all the Securities, as the case may be, the holders of a
majority in aggregate principal amount of the Securities of that series at the
time outstanding may on behalf of the holders of all of the Securities of such
series waive any past default or Event of Default, including any default or
Event of Default the conditions for the occurrence of which are established
pursuant to Section 2.03, and its consequences, except a default (a) in the
payment of principal of, premium, if any, or interest on any of the Securities,
(b) in respect of covenants or provisions hereof which cannot be modified or
amended without the consent of the holder of each Security affected, or (c) a
default of the covenants contained in Section 3.08; provided, however, that if
the Securities of such series are held by a Countrywide Trust or a trustee of
such trust, such waiver or modification to such waiver shall not be effective
until the holders of a majority in liquidation preference of Trust Securities of
the applicable Countrywide Trust shall have consented to such waiver or
modification to such waiver; provided, further, that if the consent of the
holder of each outstanding Security is required,
42
such waiver shall not be effective until each holder of the Trust Securities of
the applicable Countrywide Trust shall have consented to such waiver. Upon any
such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Guarantor, 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 5.07, said default or Event of
Default shall for all purposes of the Securities of that series (or of all
Securities, as the case may be) and this Indenture be deemed to have been cured
and to be not continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a default
with respect to the Securities of any series, mail to all Securityholders of
that series, as the names and addresses of such holders appear upon the Security
register, notice of all defaults with respect to that series known to the
Trustee, unless such defaults shall have been cured before the giving of such
notice (the term "defaults" for the purpose of this Section 5.08 being hereby
defined to be the events specified in clauses (a), (b), (c), (d), (e) and (f) of
Section 5.01, not including periods of grace, if any, provided for therein, and
irrespective of the giving of written notice specified in clause (c) of Section
5.01); and provided that, except in the case of default in the payment of the
principal of, premium, if any, or interest on any of the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders
of such series; and provided further, that in the case of any default of the
character specified in Section 5.01(c) no such notice to Securityholders of such
series shall be given until at least 60 days after the occurrence thereof but
shall be given within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court 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
43
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.09 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders of any series, holding in the aggregate more than 10% in
principal amount of the Securities of that series outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security against the
Company on or after the same shall have become due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to Securities of that series and after the curing or waiving of all
Events of Default which may have occurred, with respect to Securities of that
series, 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 the Securities of a series has occurred (which has not been cured or
waived) 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
Securities of a series and after the curing or waiving of all
Events of Default with respect to that series which may have
occurred
(1) the duties and obligations of the Trustee with respect to
Securities of a series shall be determined solely by the
express
44
provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and
obligations with respect to such series 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 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 of the Trustee,
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 Securityholders pursuant to Section 5.07,
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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
45
Except as otherwise provided in Section 6.01:
(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, note, debenture 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 or the
Guarantor mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect thereof
be herein specifically prescribed); and any Board Resolution may
be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company or the
Guarantor, as the case may be;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered omitted by it hereunder in good faith and in accordance
with such advice or 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 Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this
Indenture; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of
Default with respect to a series of the Securities (that has not
been cured or waived) to exercise with respect to Securities of
that series such of the rights and powers vested in it by this
Indenture, and to
46
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;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, coupon or other paper or
document, unless requested in writing to do so by the holders of
not less than a majority in principal amount of the outstanding
Securities of the series affected thereby; provided, however,
that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expense or liability as
a condition to so proceeding; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents (including any Authenticating Agent) or attorneys, and the
Trustee shall not be responsible for any misconduct or negligence
on the part of any such agent or attorney appointed by it with
due care.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Company and the Guarantor, and the Trustee and
the Authenticating Agent assume no responsibility for the correctness of the
same. The Trustee and the Authenticating Agent make no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
and the Authenticating Agent shall not be accountable for the use or application
by the Company or the Guarantor of any Securities or the proceeds of any
Securities authenticated and delivered by the Trustee or the Authenticating
Agent in conformity with the provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities.
47
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not Trustee, Authenticating Agent, paying agent, transfer
agent or Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company
and the Guarantor. 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 the Chairman of the Board
of Directors, the President, a Managing Director, a Vice President, the
Treasurer or an Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company and the Guarantor covenant and agree to pay to the Trustee
from time to time, and the Trustee shall be entitled to, such compensation as
shall be agreed to in writing among the Company, the Guarantor and the Trustee
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Company and the
Guarantor 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 and the 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. The Company and the
Guarantor also covenant to indemnify each of the Trustee or any predecessor
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense
including taxes (other than taxes based on the income of the Trustee) incurred
without negligence or bad faith on the part of the Trustee and arising out of or
in connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Company and the Guarantor under this Section
6.06 to compensate and indemnify the Trustee and to
48
pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. 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.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(d), Section 5.01(e) or
Section 5.01(f), the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, 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
omitting any action 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 or omitted by
it under the provisions of this Indenture upon the faith thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation organized
and doing business under the laws of the United States of America or any state
or territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Securities and Exchange Commission
authorized under such laws to exercise corporate trust
49
powers, having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000) and subject to supervision or examination by federal,
state, territorial, or District of Columbia authority. 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 6.09 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent records of condition so published.
The Company and the Guarantor may not, nor may any person directly or
indirectly controlling, controlled by, or under common control with the Company
or the Guarantor, serve as Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of
Securities by giving written notice of such resignation to the
Company and the Guarantor and by mailing notice thereof to the
holders of the applicable series of Securities at their addresses
as they shall appear on the Security Register. Upon receiving
such notice of resignation, the Company and the Guarantor shall
promptly appoint a successor trustee or trustees with respect to
the applicable series by written instrument, in duplicate,
executed by order of its Board of Directors, 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 with respect to any series of Securities
and have accepted appointment within 30 days after the mailing of
such notice of resignation to the affected 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 5.09, on behalf of himself
and all others similarly situated, petition any
50
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 6.08 after written request therefor by the Company
or the Guarantor or by any Securityholder who has been a
bona fide holder of a Security or Securities for at least
six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.09 and shall fail to resign
after written request therefor by the Company or the
Guarantor or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, the
Company or the Guarantor may remove the Trustee and appoint
a successor Trustee by written instrument, in duplicate,
executed by order of the Board of Directors, 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 5.09, any Securityholder who
has been a bona fide holder of a Security or Securities of
the applicable series for at least six months may, on behalf
of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee. Such
court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a
successor Trustee.
51
(c) Upon prior written notice to the Company, the Guarantor and the
Trustee, the holders of a majority in aggregate principal amount
of the Securities of any series at the time outstanding may at
any time remove the Trustee with respect to such series and
nominate a successor Trustee with respect to the applicable
series of Securities or all series, as the case may be, which
shall be deemed appointed as successor Trustee with respect to
the applicable series unless within ten Business Days after such
nomination the Company or the Guarantor objects thereto, in which
case the Trustee so removed or any Securityholder of the
applicable series, upon the terms and conditions and otherwise as
in subsection (a) of this Section 6.10 provided, may petition any
court of competent jurisdiction for an appointment of a successor
Trustee with respect to such series.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of
appointment by the successor Trustee as provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor Trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and the Guarantor and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the retiring 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 the
Guarantor 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 6.06,
execute and deliver an instrument transferring to such successor Trustee all the
rights and powers of the Trustee so ceasing to act and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee thereunder. Upon request of any such successor Trustee,
the Company and the Guarantor shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming 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
52
collected by such Trustee to secure any amounts then due it pursuant to the
provisions of Section 6.06.
If a successor Trustee is appointed with respect to the Securities of
one or more (but not all) series, the Company, the Guarantor, the retiring
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 retiring 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 Trust 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 6.11 unless at the time of such acceptance such successor Trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 6.11, the Company and the Guarantor shall mail notice of the
succession of such Trustee hereunder to the holders of Securities of any
applicable series at their addresses as they shall appear on the Security
register. If the Company and the Guarantor fail to mail such notice within ten
Business Days after the acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of the
Company and the Guarantor.
SECTION 6.12. Succession 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 all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
53
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee, and deliver
such Securities so authenticated; and in case at that time any of the Securities
of any series shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities of such series
or in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or authenticate Securities of any series in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by the
Trustee upon the request of the Company and the Guarantor with power to act on
its behalf and subject to its direction in the authentication and delivery of
Securities of any series issued upon exchange or transfer thereof as fully to
all intents and purposes as though any such Authenticating Agent had been
expressly authorized to authenticate and deliver Securities of such series;
provided that the Trustee shall have no liability to the Company or the
Guarantor for any acts or omissions of the Authenticating Agent with respect to
the authentication and delivery of Securities of any series. Any such
Authenticating Agent shall at all times 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 authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$5,000,000 and being subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such authority, then for the purposes of this
54
Section 6.14 the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect herein specified in this
Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 6.14 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign with respect to one or
more or all series of Securities by giving written notice of resignation to the
Trustee and to the Company and the Guarantor. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to one or more or
all series of Securities by giving written notice of termination to such
Authenticating Agent and to the Company and the Guarantor. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section 6.14, the
Trustee may, and upon the request of the Company and the Guarantor shall,
promptly appoint a successor Authenticating Agent with respect to the applicable
series eligible under this Section 6.14, shall give written notice of such
appointment to the Company and the Guarantor and shall mail notice of such
appointment to all holders of the applicable series of Securities as the names
and addresses of such holders appear on the Security Register. Any successor
Authenticating Agent with respect to all or any series upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities with respect to such series of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent herein.
The Company and the Guarantor agree to pay to any Authenticating Agent
from time to time reasonable compensation for its services. Any Authenticating
Agent shall have no responsibility or liability for any action taken by it as
such in accordance with the directions of the Trustee.
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ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. 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 such Securityholders
in person or by agent or proxy appointed in writing, or (b) by the record of
such holders of Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders or (d) by any other method
the Trustee deems satisfactory.
If the Company or the Guarantor shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company or the Guarantor may, at its option, as
evidenced by an Officers' Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other action, but
the Company or the Guarantor shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action may be given before or after the record date,
but only the Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of determining
whether Securityholders of the requisite proportion of outstanding Securities of
that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the outstanding Securities of that series shall be computed as of the
record date; provided, however, that no such authorization, agreement or consent
-------- -------
by such Securityholders on the record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
56
SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security registrar. The Trustee may require
such additional proof of any matter referred to in this Section as it shall deem
necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Security,
the Company, the Guarantor, the Trustee, any Authenticating Agent, any paying
agent, any transfer agent and any Security registrar may deem the person in
whose name such Security shall be registered upon the Security Register to be,
and may treat him as, the absolute owner of such Security (whether or not such
Security shall be overdue) for the purpose of receiving payment of or on account
of the principal of, premium, if any, and interest on such Security and for all
other purposes; and neither the Company nor the Guarantor nor the Trustee nor
any Authenticating Agent nor any paying agent nor any transfer agent nor any
Security registrar shall be affected by any notice to the contrary. All such
payments so made to any holder for the time being or upon his order shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
SECTION 7.04. Securities Owned by Company or the Guarantor Deemed Not
Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Company or the
Guarantor or any other obligor on the Securities or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or the Guarantor or any other obligor on the Securities
shall be disregarded and deemed not to be outstanding for the purpose of any
such determination; provided that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
57
only Securities which the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 7.04 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 the Company or the Guarantor or any
such other obligor or Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or the Guarantor or
any such other obligor. 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 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of 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 (or any
Security issued in whole or in part in exchange or substitution therefor) the
serial 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 principal office and upon proof of holding as provided
in Section 7.02, revoke such action so far as concerns such Security (or so far
as concerns the principal amount represented by any exchanged or substituted
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 or any Security issued in exchange or
substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. 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 Eight for
any of the following purposes:
(a) to give any notice to the Company or to the Guarantor or to the
Trustee, or to give any
58
directions to the Trustee, or to consent to the waiving of 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 Five;
(b) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article Six;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02;
or
(d) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of
such Securities under any other provision of this Indenture or
under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders of any
or all series to take any action specified in Section 8.01, to be held at such
time and at such place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine. Notice of every meeting of the Securityholders of any
or all series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
to holders of Securities of each series affected at their addresses as they
shall appear on the Securities Register for each series affected. Such notice
shall be mailed not less than 20 nor more than 180 days prior to the date fixed
for the meeting.
SECTION 8.03. Call of Meetings by Company, Guarantor or
Securityholders.
In case at any time the Company or the Guarantor pursuant to a
resolution of the Board of Directors, or the holders of at least 10% 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, as the case may be, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company, the Guarantor or such
Securityholders may determine the time and the place in said Borough of
Manhattan for such meeting and may call such meeting
59
to take any action authorized in Section 8.01, by mailing notice thereof as
provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a Person
shall (a) be a holder of one or more Securities with respect to which the
meeting is being held or (b) a Person appointed by an instrument in writing as
proxy by a holder of one or more such Securities. The only Persons who shall be
entitled to be present or to speak at any meeting of 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 and any representatives of the Guarantor and its
counsel.
SECTION 8.05. 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, by the Guarantor or by Securityholders as provided in Section 8.03, in
which case the Company, the Guarantor or the Securityholders 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 majority vote of the meeting.
Subject to the provisions of Section 7.04, at any meeting each holder
of Securities with respect to which such meeting is being held or proxy therefor
shall be entitled to one vote for each $1,000 principal amount (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in the definition "outstanding") of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities held by him or instruments in
writing as aforesaid duly designating him as the Person to vote on behalf of
other Securityholders. Any
60
meeting of Securityholders duly called pursuant to the provisions of Section
8.02 or 8.03 may be adjourned from time to time by a majority of those present,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders of
Securities with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or 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 written reports in triplicate 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 affidavits 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 8.02. The record shall show the
serial numbers of the Securities voting in favor of or against any resolution.
The record shall be signed and verified by the affidavits of 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 IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of
Securityholders.
The Company and the Guarantor, when authorized by resolutions of their
respective Boards of Directors, 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 as then in effect),
61
without the consent of the Securityholders, for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the Company
or the Guarantor, or successive successions, and the assumption
by the successor corporation of the covenants, agreements and
obligations of the Company or the Guarantor, as the case may be,
pursuant to Article Ten hereof;
(b) to add to the covenants of the Company or the Guarantor such
further covenants, restrictions or conditions for the protection
of the holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities stating that such covenants are expressly being
included for the benefit of such series) as such Boards of
Directors and the Trustee shall consider to be for the protection
of the holders of such Securities, and to make the occurrence, or
the occurrence and continuance, of a default in any of such
additional covenants, restrictions or conditions a default or an
Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional
covenant, restriction or condition such supplemental indenture
may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee
upon such default;
(c) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal
only) and to provide for exchangeability of such Securities with
the Securities issued hereunder in fully registered form and to
make all appropriate changes for such purpose;
(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
62
questions arising under this Indenture; provided that any such
action shall not adversely affect the interests of the holders of
the Securities;
(e) to add to, delete from, or revise the terms of Securities of any
series as permitted by Section 2.01 and 2.03, including, without
limitation, any terms relating to the issuance, exchange,
registration or transfer of Securities issued in whole or in part
in the form of one or more Global Securities and the payment of
any principal thereof, or interest or premium, if any, thereon;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities
of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11;
(g) to make any change that does not adversely affect the rights of
any Securityholder in any material respect; or
(h) to provide for the issuance of and establish the form and terms
and conditions of the Debt Securities and the Guarantees of any
series, to establish the form of any certifications required to
be furnished pursuant to the terms of this Indenture or any
series of Securities, or to add to the rights of the holders of
any series of Securities.
The Trustee is hereby authorized to join with the Company and the
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 and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 9.01 may be executed by the Company, the Guarantor and the Trustee
without the consent of the holders of any of the Securities at the time
outstanding, notwithstanding any of the provisions of Section 9.02.
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SECTION 9.02. Supplemental Indentures with Consent of
Securityholders.
With the consent (evidenced as provided in Section 7.01) of the
holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding of all series affected by such supplemental
indenture (voting as a class), the Company and the Guarantor, when authorized by
Board Resolutions, 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 then in effect) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Securities of each series so affected;
provided, however, that no such supplemental indenture shall without the consent
-------- -------
of the holders of each Security then outstanding and affected thereby (i) extend
the fixed maturity of any Security of any series, or reduce the rate or extend
the time of payment of interest thereon, or reduce the principal amount thereof
or any premium thereon, or reduce any amount payable on redemption thereof or
make the principal thereof or any interest or premium thereon payable in any
coin or currency other than that provided in the Securities, or reduce the
amount of the principal of an Original Issue Discount Security that would be due
and payable upon an acceleration of the maturity thereof pursuant to Section
5.01 or the amount thereof provable in bankruptcy pursuant to Section 5.02, or
impair or affect the right of any Securityholder to institute suit for payment
thereof or the right of repayment, if any, at the option of the holder, without
the consent of the holder of each Security so affected, or (ii) reduce the
aforesaid percentage of Securities the holders of which are required to consent
to any such supplemental indenture, without the consent of the holders of each
Security then affected; provided, further, that if the Securities of such series
are held by a Countrywide Trust or a trustee of such trust, such supplemental
indenture shall not be effective until the holders of a majority in liquidation
preference of Trust Securities of the applicable Trust shall have consented to
such supplemental indenture; provided further, that if the consent of the Holder
of each outstanding Security is required, such supplemental indenture shall not
be effective until each holder of the Trust Securities of the applicable
Countrywide Trust shall have consented to such supplemental indenture.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of
64
Securityholders of such series with respect to such covenant or provision, shall
be deemed not to affect the rights under this Indenture or the Securityholders
of any other series.
Upon the request of the Company and the Guarantor accompanied by a
copy of resolutions of their respective Boards of Directors certified by their
respective Secretaries or Assistant Secretaries 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 the 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. The Trustee may receive an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant to this Article is authorized
or permitted by, and conforms to, the terms of this Article and that it is
proper for the Trustee under the provisions of this Article to join in the
execution hereof.
Promptly after the execution by the Company, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall transmit by mail, first class postage prepaid, a
notice, prepared by the Company and the Guarantor, setting forth in general
terms the substance of such supplemental indenture, to the Securityholders of
all series affected thereby as their names and addresses appear upon the
Security Register. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article Nine shall comply with the Trust Indenture Act, as then in effect. Upon
the execution of any supplemental indenture pursuant to the provisions of this
Article Nine, 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, the Guarantor and the
65
holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Securities.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture affecting such series pursuant to the
provisions of this Article Nine may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company and the Guarantor or the Trustee shall so determine, new Securities of
any series so modified as to conform, in the opinion of the Trustee and the
respective Boards of Directors of the Company and the Guarantor, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company and the Guarantor, authenticated by the
Trustee or the Authenticating Agent and delivered in exchange for the Securities
of any series then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive Officers' Certificates and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant hereto complies with the
requirements of this Article Nine.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company or Guarantor May Consolidate, etc., on Certain
Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company or the Guarantor with or into
any other corporation or corporations (whether or not affiliated with the
Company or the Guarantor, as the case may be), or successive consolidations or
mergers in which the Company or the Guarantor, as the case may be, or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or the
Guarantor, as the case may be, or its successor or successors as an entirety,
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or substantially as an entirety, to any other corporation (whether or not
affiliated with the Company and the Guarantor, as the case may be, or its
successor or successors) authorized to acquire and operate the same; provided,
--------
however, the Company and the Guarantor hereby covenant and agree that, upon any
-------
such consolidation, merger, sale, conveyance, transfer or other disposition, the
due and punctual payment, in the case of the Company, of the principal of
(premium, if any) and interest on all of the Debt Securities of all series in
accordance with the terms of each series, according to their tenor or, in the
case of the Guarantor, the performance of all obligations under the Guarantees,
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or established with
respect to such series to be kept or performed by the Company or the Guarantor,
as the case may be, shall be expressly assumed, by supplemental indenture (which
shall conform to the provisions of the Trust Indenture Act, as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company or the Guarantor,
as the case may be, shall have been merged, or by the entity which shall have
acquired such property.
SECTION 10.02. Successor Corporation to be Substituted.
In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of, in the case of the Company, the due and punctual
payment of the principal of and premium, if any, and interest on all of the Debt
Securities or, in the case of the Guarantor, the performance of all obligations
under the Guarantees, and the due and punctual performance and observance of all
of the covenants and conditions of this Indenture to be performed or observed by
the Company or the Guarantor, as the case may be, such successor corporation
shall succeed to and be substituted for the Company or the Guarantor, as the
case may be, with the same effect as if it had been named herein as the Company
or the Guarantor, as the case may be, and thereupon the predecessor corporation
shall be relieved of any further liability or obligation hereunder or upon the
Securities. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of Countrywide Home Loans, Inc.
or Countrywide Credit Industries, Inc., any or all of the Debt Securities or
Guaranties, respectively, issuable hereunder which theretofore shall not have
been signed by the Company or the Guarantor and delivered to the Trustee or the
Authenticating Agent; and, upon the order of such successor corporation instead
of the Company or the Guarantor, as the case may be, and subject to all the
terms, conditions and
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limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Securities which previously shall have
been signed and delivered by the officers of the Company or the Guarantor, as
the case may be, to the Trustee or the Authenticating Agent for authentication,
and any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee or the Authenticating Agent for that
purpose. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or other disposition, and any assumption,
permitted or required by the terms of this Article Ten complies with the
provisions of this Article Ten.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company and the Guarantor shall deliver to the Trustee
for cancellation all Securities theretofore authenticated (other than any
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.08) and not theretofore
cancelled, or (b) all the Securities not theretofore cancelled or 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 or the Guarantor shall
deposit with the Trustee, in trust, funds sufficient to pay at maturity or upon
redemption all of the Securities (other than any Securities which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.08) not theretofore cancelled or delivered to the Trustee
for cancellation, including principal and premium, if any, and interest due or
to become due to such date of maturity or redemption date, as the case may be,
but excluding, however, the amount of any moneys for the payment of principal
of, and
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premium, if any, or interest on the Securities (1) theretofore repaid to the
Company or the Guarantor in accordance with the provisions of Section 11.04, or
(2) paid to any state or to the District of Columbia pursuant to its unclaimed
property or similar laws, and if in either case the Company or the Guarantor
shall also pay or cause to be paid all other sums payable hereunder by the
Company or the Guarantor, then this Indenture shall cease to be of further
effect except for the provisions of Sections 2.05, 2.07, 2.08, 3.01, 3.02, 3.04,
6.06, 6.10 and 11.04 hereof shall survive until such Securities shall mature and
be paid. Thereafter, Sections 6.10 and 11.04 shall survive, and the Trustee, on
demand of the Company and the Guarantor accompanied by an Officers' Certificate
and an Opinion of Counsel and at the cost and expense of the Company and the
Guarantor, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture, the Company and the Guarantor, however, hereby
agreeing 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.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be
Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections 11.01 or
11.05 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Securities for the payment of which
such moneys or U.S. Government Obligations have been deposited with the Trustee,
of all sums due and to become due thereon for principal, premium, if any, and
interest.
The Company and the Guarantor shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 11.05 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the holders of outstanding Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then
held by any paying agent of the Securities (other than the Trustee) shall, upon
demand of the Company or the Guarantor, 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.
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SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent
for payment of the principal of, and premium, if any, or interest on Securities
and not applied but remaining unclaimed by the holders of Securities for three
years after the date upon which the principal of, and premium, if any, or
interest on such Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company or the Guarantor by the Trustee or such
paying agent on written demand; and the holder of any of the Securities shall
thereafter look only to the Company or the Guarantor for any payment which such
holder may be entitled to collect and all liability of the Trustee or such
paying agent with respect to such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
The Company and the Guarantor shall be deemed to have been Discharged
(as defined below) from its respective obligations with respect to any series of
Securities on the 91st day after the applicable conditions set forth below have
been satisfied with respect to such series of Securities:
(1) The Company or the Guarantor shall have deposited or caused to be
deposited irrevocably with the Trustee or the Defeasance Agent
(as defined below) as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the
holders of the Securities of such series (i) money in an amount,
or (ii) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with
their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination
of (i) and (ii), sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee and the
Defeasance Agent, if any, to pay and discharge each installment
of principal (including any mandatory sinking fund payments) of,
and interest and premium, if any, on, the outstanding Securities
of such series on the dates such installments of principal,
interest or premium are due;
(2) if the Securities of such series are then listed on any national
securities exchange, the Company
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or the Guarantor, as the case may be, shall have delivered to the
Trustee and the Defeasance Agent, if any, an Opinion of Counsel
to the effect that the exercise of the option under this Section
11.05 would not cause such Securities to be delisted from such
exchange;
(3) no Event of Default or event which with notice or lapse of time
would become an Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date
of such deposit; and
(4) the Company or the Guarantor, as the case may be, shall have
delivered to the Trustee and the Defeasance Agent, if any, an
Opinion of Counsel to the effect that holders of the Securities
of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of the exercise of
the option under this Section 11.05 and will be subject to United
States federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such
option had not been exercised, and, in the case of the Securities
of such series being Discharged, such opinion shall be
accompanied by a private letter ruling to that effect received
from the United States Internal Revenue Service or a revenue
ruling pertaining to a comparable form of transaction to that
effect published by the United States Internal Revenue Service.
"Discharged" means that the Company and the Guarantor shall be deemed
to have paid and discharged the entire indebtedness represented by, and
obligations under, the Securities of such series and to have satisfied all the
obligations under this Indenture relating to the Securities of such series (and
the Trustee, at the expense of the Company and the Guarantor, shall execute
proper instruments acknowledging the same), except (A) the rights of holders of
Securities of such series to receive, from the trust fund described in clause
(1) above, payment of the principal of and the interest and premium, if any, on
such Securities when such payments are due; (B) the Company's and the
Guarantor's obligations with respect to such Securities under Sections 2.05,
2.07, 2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04; and (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder.
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"Defeasance Agent" means another financial institution which is
eligible to act as Trustee hereunder and which assumes all of the obligations of
the Trustee necessary to enable the Trustee to act under this Section 11.05. In
the event such a Defeasance Agent is appointed pursuant to this Section, the
following conditions shall apply:
1. The Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting forth
such Defeasance Agent's rights and responsibilities;
2. The Defeasance Agent shall provide verification to the Trustee
acknowledging receipt of sufficient money and/or U.S. Government
Obligations to meet the applicable conditions set forth in this
Section 11.05;
3. The Trustee shall determine whether the Company and the Guarantor
shall be deemed to have been Discharged from its respective
obligations with respect to any series of Securities.
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ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTOR
SECTION 12.01. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on any Debt Security or any Guarantee, or for any claim based thereon
or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company or the Guarantor in this Indenture or in
any supplemental indenture, or in any such Security, or because of the creation
of any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or the Guarantor or of any successor corporation of the Company or the
Guarantor, either directly or through the Company or the Guarantor or any
successor corporation of the Company or the Guarantor, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company or the Guarantor shall bind to successors and
assigns whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company or the Guarantor shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company or the Guarantor, as the
case may be.
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SECTION 13.03. Surrender of Company Powers.
The Company or the Guarantor by instrument in writing executed by
authority of 2/3 (two-thirds) of its Board of Directors and delivered to the
Trustee may surrender any of the powers reserved to the Company or the Guarantor
as the case may be, and thereupon such power so surrendered shall terminate both
as to the Company or the Guarantor, as the case may be, and as to any successor
corporation.
SECTION 13.04. 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 on the Company or the Guarantor may be given or served by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company or the
Guarantor, as the case may be, with the Trustee for the purpose) to the Company,
or the Guarantor, as the case may be, 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: _______________. 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 the
office of the Trustee, addressed to the Trustee, 000 Xxxxxxx Xxxxxx, 00 Xxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administration.
SECTION 13.05. Governing Law.
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, without regard to
conflict of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company or the Guarantor to the
Trustee to take any action under any of the provisions of this Indenture, the
Company or the Guarantor, as the case may be, shall furnish to the Trustee an
Officers' Certificate stating that in the opinion of the signers all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been complied with.
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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 13.07. Legal Holidays.
Subject to Section 2.03, in any case where the date of payment of
interest on or principal of the Securities will be in The City of New York, New
York a legal holiday or a day on which banking institutions are authorized by
law to close, the payment of such interest on or principal of the Securities
need not be made on such date but may be made on the next succeeding day not in
the City a legal holiday or a day on which banking institutions are authorized
by law to close, with the same force and effect as if made on the date of
payment and no interest shall accrue for the period from and after such date.
SECTION 13.08. 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 which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act, such required provision shall control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 13.10. 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.
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SECTION 13.11. Separability.
In case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.12. Assignment.
The Company and the Guarantor will have the right at all times to
assign any of its respective rights or obligations under this Indenture to a
direct or indirect wholly owned Subsidiary of the Company or the Guarantor,
provided that, in the event of any such assignment, the Company or the
Guarantor, as the case may be, will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
SECTION 13.13. Acknowledgement of Rights.
The Company and the Guarantor acknowledge that, with respect to any
Securities held by any Countrywide Trust or a trustee of such trust, if the
Institutional Trustee of such trust fails to enforce its rights under this
Indenture as the holder of the series of Securities held as the assets of such
Countrywide Trust any holder of Preferred Securities may institute legal
proceedings directly against the Company or the Guarantor to enforce such
Institutional Trustee's rights under this Indenture without first instituting
any legal proceedings against such Institutional Trustee or any other person or
entity. Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing and such event is attributable to the failure of the Company or
the Guarantor to pay interest or principal on the applicable series of
Securities on the date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), the Company and the Guarantor
acknowledge that a holder of Preferred Securities may directly institute a
proceeding or enforcement of payment to such holder of the principal of or
interest on the applicable series of Securities having a principal amount equal
to the aggregate liquidation amount of the Preferred Securities of such holder
on or after the respective due date specified in the applicable series of
Securities.
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ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.
The provisions of this Article shall be applicable to the Debt
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified as contemplated by Section 2.03 for Debt Securities of such
series.
SECTION 14.02. Notice of Redemption; Selection of Debt Securities.
In case the Company shall desire to exercise the right to redeem all,
or, as the case may be, any part of the Debt Securities of any series in
accordance with their terms, it shall fix a date for redemption and shall mail a
notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the holders of Debt Securities of such series so to
be redeemed as a whole or in part at their last addresses as the same appear on
the Security Register. Such mailing shall be by first class mail. The notice
if mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the holder receives such notice. In any case,
failure to give such notice by mail or any defect in the notice to the holder of
any Debt 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
Debt Security of such series.
Each such notice of redemption shall specify the CUSIP number of the
Debt Securities to be redeemed, the date fixed for redemption, the redemption
price at which Debt Securities of such series are to be redeemed, the place or
places of payment, that payment will be made upon presentation and surrender of
such Debt Securities, that interest accrued to the date fixed for redemption
will be paid as specified in said notice, and that on and after said date
interest thereon or on the portions thereof to be redeemed will cease to accrue.
If less than all the Debt Securities of such series are to be redeemed the
notice of redemption shall specify the numbers of the Debt Securities of that
series to be redeemed. In case any Debt Security of a series is to be redeemed
in part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Debt Security, a new Debt Security or
Debt Securities of that series in principal amount
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equal to the unredeemed portion thereof and having endorsed thereon a duly
executed Guarantee will be issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Company will deposit with the Trustee or
with one or more paying agents an amount of money sufficient to redeem on the
redemption date all the Debt Securities so called for redemption at the
appropriate redemption price, together with accrued interest to the date fixed
for redemption.
If all, or less than all, the Debt Securities of a series are to be
redeemed, the Company will give the Trustee notice not less than 45 or 60 days,
respectively, prior to the redemption date as to the aggregate principal amount
of Debt Securities of that series to be redeemed and the Trustee shall select,
in such manner as in its sole discretion it shall deem appropriate and fair, the
Debt Securities of that series or portions thereof (in integral multiples of
$1,000, except as otherwise set forth in the applicable form of Debt Security)
to be redeemed.
SECTION 14.03. Payment of Securities Called for Redemption.
If notice of redemption has been given as provided in Section 14.02 or
Section 14.04, the Debt Securities or portions of Debt Securities of the series
with respect to which such notice has been given shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Company shall default in the
payment of such Debt Securities at the redemption price, together with interest
accrued to said date) interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue. On
presentation and surrender of such Debt Securities at a place of payment
specified in said notice, the said Debt Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption.
Upon presentation of any Debt Security of any series redeemed in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to the holder thereof, at the expense of the Company, a
new Debt Security or Debt Securities of such series of authorized denominations,
in principal amount equal to the unredeemed portion of the Debt
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Security so presented and having endorsed thereon a duly executed Guarantee.
SECTION 14.04. Mandatory and Optional Sinking Fund.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment". The last date on which any such payment may be
made is herein referred to as a "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company may
at its option (a) deliver to the Trustee Debt Securities of that series
theretofore purchased by the Company and (b) may apply as a credit Debt
Securities of that series which have been redeemed either at the election of the
Company pursuant to the terms of such Debt Securities or through the application
of optional sinking fund payments pursuant to the next succeeding paragraph, in
each case in satisfaction of all or any part of any mandatory sinking fund
payment, provided that such Debt Securities have not been previously so
credited. Each such Debt Security so delivered or applied as a credit shall be
credited at the sinking fund redemption price for such Debt Securities and the
amount of any mandatory sinking fund shall be reduced accordingly. If the
Company intends so to deliver or credit such Debt Securities with respect to any
mandatory sinking fund payment it shall deliver to the Trustee at least 60 days
prior to the next succeeding sinking fund payment date for such series (a) a
certificate signed by the Treasurer or an Assistant Treasurer of the Company
specifying the portion of such sinking fund payment, if any, to be satisfied by
payment of cash and the portion of such sinking fund payment, if any, which is
to be satisfied by delivering and crediting such Debt Securities and (b) any
Debt Securities to be so delivered. All Debt Securities so delivered to the
Trustee shall be cancelled by the Trustee and no Debt Securities shall be
authenticated in lieu thereof. If the Company fails to deliver such certificate
and Debt Securities at or before the time provided above, the Company shall not
be permitted to satisfy any portion of such mandatory sinking fund payment by
delivery or credit of Debt Securities.
At its option the Company may pay into the sinking fund for the
retirement of Debt Securities of any particular series, on or before each
sinking fund payment date for such series, any additional sum in cash as
specified by the terms of such series of Debt Securities. If the Company
intends to exercise its right
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to make any such optional sinking fund payment, it shall deliver to the Trustee
at least 60 days prior to the next succeeding sinking fund payment date for such
series a certificate signed by the Treasurer or an Assistant Treasurer of the
Company stating that the Company intends to exercise such optional right and
specifying the amount which the Company intends to pay on such sinking fund
payment date. If the Company fails to deliver such certificate at or before the
time provided above, the Company shall not be permitted to make any optional
sinking fund payment with respect to such sinking fund payment date. To the
extent that such right is not exercised in any year it shall not be cumulative
or carried forward to any subsequent year.
If the sinking fund payment or payments (mandatory or optional) made
in cash plus any unused balance of any preceding sinking fund payments made in
cash shall exceed $50,000 (or a lesser sum if the Company shall so request) with
respect to the Debt Securities of any particular series, it shall be applied by
the Trustee or one or more paying agents on the next succeeding sinking fund
payment date to the redemption of Debt Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. The Trustee shall select, in the manner provided in Section 14.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Debt Securities of such series to absorb said cash, as nearly as may be, and
the Trustee shall, at the expense and in the name of the Company, thereupon
cause notice of redemption of Debt Securities of such series to be given in
substantially the manner and with the effect provided in Sections 14.02 and
14.03 for the redemption of Debt Securities of that series in part at the option
of the Company, except that the notice of redemption shall also state that the
Debt Securities of such series are being redeemed for the sinking fund. Any
sinking fund moneys not so applied or allocated by the Trustee or any paying
agent to the redemption of Debt Securities of that series shall be added to the
next cash sinking fund payment received by the Trustee or such paying agent and,
together with such payment, shall be applied in accordance with the provisions
of this Section 14.04. Any and all sinking fund moneys held by the Trustee or
any paying agent on the maturity date of the Debt Securities of any particular
series, and not held for the payment or redemption of particular Debt Securities
of such series, shall be applied by the Trustee or such paying agent, together
with other moneys, if necessary, to be deposited sufficient for the purpose, to
the payment of the principal of the Debt Securities of that series at maturity.
On or before each sinking fund payment date, the Company shall pay to
the Trustee or to one or more paying agents in cash a sum equal to all interest
accrued to the date fixed for
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redemption on Debt Securities to be redeemed on the next following sinking fund
payment date pursuant to this Section.
Neither the Trustee nor any paying agent shall redeem any Debt
Securities of a series with sinking fund moneys, and the Trustee shall not mail
any notice of redemption of Debt Securities for such series by operation of the
sinking fund, during the continuance of a default in payment of interest on such
Debt Securities or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph), except that if the notice of
redemption of any Securities shall theretofore have been mailed in accordance
with the provisions hereof, the Trustee or any paying agent shall redeem such
Debt Securities if cash sufficient for that purpose shall be deposited with the
Trustee or such paying agent for that purpose in accordance with the terms of
this Article Fourteen. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default shall occur
and any moneys thereafter paid into the sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of all such Debt Securities; provided, however, that in case such Event
of Default or default, shall have been cured or waived as provided herein, such
moneys shall thereafter be applied on the next succeeding sinking fund payment
date on which such moneys may be applied pursuant to the provisions of this
Section 14.04.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company and the Guarantor covenant and agree, and each holder of
Securities issued hereunder and under any supplemental indenture or by any
resolutions by the Boards of Directors of the Company and the Guarantor
("Additional Provisions") by such Securityholder's acceptance thereof likewise
covenants and agrees, that all Securities shall be issued subject to the
provisions of this Article Fifteen; and each holder of a Security, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Debt Securities and the payment by the Guarantor of any
obligation due under any Guarantees issued hereunder and under any Additional
Provisions shall, to the extent and in the manner hereinafter set forth, be
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subordinated and junior in right of payment to the prior payment in full of all
Senior Indebtedness of the Company or the Guarantor, as the case may be, whether
outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article Fifteen shall prevent the occurrence of
any default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company
or the Guarantor in the payment of principal, premium, interest or any other
payment due on any Senior Indebtedness of the Company or the Guarantor, as the
case may be, or in the event that the maturity of any Senior Indebtedness of the
Company, as the case may be, has been accelerated because of a default, then,
in either case, no payment shall be made by the Company or the Guarantor, as the
case may be, with respect to the principal (including redemption and sinking
fund payments) of, or premium, if any, or interest on the Securities, including
payment with respect to any obligation due under the Guarantees.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or the Guarantor or distribution of
assets of the Company or the Guarantor of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company or the Guarantor, whether voluntary
or involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due upon all Senior Indebtedness of the Company or the Guarantor, as
the case may be, shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company or
the Guarantor, as the case may be, on account of the
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principal (and premium, if any) or interest on the Securities; and upon any such
dissolution or winding-up or liquidation or reorganization, any payment by the
Company or the Guarantor, or distribution of assets of the Company or the
Guarantor of any kind or character, whether in cash, property or securities, to
which the Securityholders or the Trustee would be entitled to receive from the
Company or the Guarantor, as the case may be, except for the provisions of this
Article Fifteen, shall be paid by the Company or the Guarantor, as the case may
be, or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Securityholders or
by the Trustee under the Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company or the Guarantor, as the case may
be (pro rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company or the
Guarantor, as the case may be) or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company or the Guarantor of any kind or character,
whether in cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee before all Senior Indebtedness of the Company or the
Guarantor is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, and their respective
interests may appear, as calculated by the Company or the Guarantor, for
application to the payment of all Senior Indebtedness of the Company or the
Guarantor, as the case may be, remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Indebtedness.
For purposes of this Article Fifteen, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company or the
Guarantor as reorganized or
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readjusted, or securities of the Company or the Guarantor or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article
Fifteen with respect to the Securities to the payment of all Senior Indebtedness
of the Company or the Guarantor, as the case may be, that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company or the Guarantor with, or the merger of the Company
or the Guarantor into, another corporation or the liquidation or dissolution of
the Company or the Guarantor following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another corporation
upon the terms and conditions provided for in Article Ten of this Indenture
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 15.03 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Ten of this Indenture. Nothing in Section 15.02 or in this
Section 15.03 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.06 of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness of the
Company or the Guarantor, the Securityholders shall be subrogated to the rights
of the holders of such Senior Indebtedness to receive payments or distributions
of cash, property or securities of the Company or the Guarantor, as the case may
be, applicable to such Senior Indebtedness until the principal of (and premium,
if any) and interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to which the
Securityholders or the Trustee would be entitled except for the provisions of
this Article Fifteen, and no payment over pursuant to the provisions of this
Article Fifteen to or for the benefit of the holders of such Senior Indebtedness
by Securityholders or the Trustee, shall, as between (i) the Company, its
creditors other than holders of Senior Indebtedness of the Company, and the
holders of the Securities, or (ii) the Guarantor, its creditors other than the
holders of Senior Indebtedness of the Guarantor, and the holders of the
Securities, be deemed to be a payment by the Company or the Guarantor, as the
case may be, to or on account of such Senior Indebtedness. It is understood
that the provisions of this Article Fifteen are and are intended solely
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for the purposes of defining the relative rights of the holders of the
Securities, on the one hand, and the holders of such Senior Indebtedness, on the
other hand.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture, any Additional Provisions or in the Securities is intended to or
shall impair, as between (i) the Company, its creditors other than the holders
of Senior Indebtedness of the Company, and the holders of the Securities, or
(ii) the Guarantor, its creditors other than the holders of Senior Indebtedness
of the Guarantor, and the holders of the Securities, the obligation of the
Company or the Guarantor, as the case may be, which is absolute and
unconditional, to pay to the holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Securities and creditors
of the Company or the Guarantor, as the case may be, other than the holders of
Senior Indebtedness of the Company or the Guarantor, as the case may be, nor
shall anything herein or therein prevent the Trustee or the holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default under the Indenture, subject to the rights, if any, under this Article
Fifteen of the holders of such Senior Indebtedness in respect of cash, property
or securities of the Company or the Guarantor, as the case may be, received upon
the exercise of any such remedy.
Upon any payment or distribution of assets of the Company or the
Guarantor referred to in this Article Fifteen, the Trustee, subject to the
provisions of Article Six of this Indenture, and the Securityholders shall be
entitled to conclusively rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Securityholders, for
the purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company or the Guarantor, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Fifteen.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take such
action as may be necessary
85
or appropriate to effectuate the subordination provided in this Article Fifteen
and appoints the Trustee such Securityholder's attorney-in-fact for any and all
such purposes.
SECTION 15.06. Notice by the Company and the Guarantor.
The Company or the Guarantor shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company or the
Guarantor that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article
Fifteen. Notwithstanding the provisions of this Article Fifteen or any other
provision of this Indenture or any Additional Provisions, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article Fifteen, unless and until
a Responsible Officer of the Trustee shall have received written notice thereof
from the Company or the Guarantor or a holder or holders of Senior Indebtedness
or from any trustee therefor; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Article Six of this Indenture, shall
be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section 15.06 at least two Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (or premium, if any) or
interest on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
The Trustee, subject to the provisions of Article Six of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company or the Guarantor, as the case may be (or a trustee
on behalf of such holder), to establish that such notice has been given by a
holder of such Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of such
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Fifteen, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such
86
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Fifteen, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Fifteen in respect of any Senior Indebtedness
at any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture or any Additional Provisions shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company or
the Guarantor, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article Fifteen,
and no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture or any Additional
Provisions against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Indebtedness and, subject to the
provisions of Article Six of this Indenture, the Trustee shall not be liable to
any holder of such Senior Indebtedness if it shall pay over or deliver to
Securityholders, the Company, the Guarantor or any other Person money or assets
to which any holder of such Senior Indebtedness shall be entitled by virtue of
this Article Fifteen or otherwise.
Nothing in this Article Fifteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness of
the Company or the Guarantor to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or the Guarantor, as the case may be, or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by
the Company or the Guarantor, as the case may be, with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the
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Company or the Guarantor may, at any time and from time to time, without the
consent of or notice to the Trustee or the Securityholders, without incurring
responsibility to the Securityholders and without impairing or releasing the
subordination provided in this Article Fifteen or the obligations hereunder of
the holders of the Securities to the holders of such Senior Indebtedness, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, such Senior Indebtedness,
or otherwise amend or supplement in any manner such Senior Indebtedness or any
instrument evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing such Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of such Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company or the Guarantor, as the case may be, and any other Person.
00
Xxx Xxxx xx Xxx Xxxx hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers thereunto duly authorized, as of
the day and year first above written.
COUNTRYWIDE HOME LOANS, INC.
By
-----------------------------------
Name:
Title:
COUNTRYWIDE CREDIT INDUSTRIES, INC.
By
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By
-----------------------------------
Name:
Title:
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