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EXHIBIT 4.1
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USA EDUCATION, INC.
Issuer
and
THE CHASE MANHATTAN BANK
Trustee
FORM OF INDENTURE
DATED AS OF
Providing for the Issuance of Debt Securities in Series
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TIE-SHEET
Reconciliation and tie between Indenture dated as of
and the Trust Indenture Act of 1939. This reconciliation section does not
constitute part of the Indenture.
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TRUST INDENTURE ACT INDENTURE
OF 1939 Section SECTION
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310(a)(1)....................................... 7.10
(a)(2).......................................... 7.10
(a)(3).......................................... Inapplicable
(a)............................................. Inapplicable
(b)............................................. 7.08, 7.10
(c)............................................. Inapplicable
311(a).......................................... 7.11
(b)............................................. 7.11
(c)............................................. Inapplicable
312(a).......................................... 2.07
(b)............................................. 10.03
(c)............................................. 10.03
313(a).......................................... 7.06
(b)(1).......................................... Inapplicable
(b)(2).......................................... 7.06
(c)............................................. 4.02, 11.02
(d)............................................. 7.06
314(a).......................................... 4.02, 11.02
(b)............................................. Inapplicable
(c)(1).......................................... 11.04
(c)(2).......................................... 11.04
(c)(3).......................................... Inapplicable
(d)............................................. Inapplicable
(e)............................................. 11.05
(f)............................................. Inapplicable
315(a).......................................... 7.01(b)
(b)............................................. 7.05, 11.02
(c)............................................. 7.01(a)
(d)............................................. 6.05,
316(a) (last sentence).......................... 2.11
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... Inapplicable
(b)............................................. 6.07
(c)............................................. 9.04
317(a)(1)....................................... 6.01, 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.06
318(a).......................................... 11.01
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TABLE OF CONTENTS*
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.01 DEFINITIONS..........................................................1
Section 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT....................4
Section 1.03 RULES OF CONSTRUCTION................................................4
ARTICLE 2
THE SECURITIES
Section 2.01 ISSUABLE IN SERIES...................................................5
Section 2.02 ESTABLISHMENT OF TERMS AND FORM OF SERIES OF SECURITIES..............5
Section 2.03 EXECUTION, AUTHENTICATION, AND DELIVERY..............................7
Section 2.04 REGISTRAR AND PAYING AGENT...........................................9
Section 2.05 PAYMENT ON SECURITIES................................................9
Section 2.06 PAYING AGENT TO HOLD MONEY IN TRUST.................................10
Section 2.07 SECURITYHOLDER LISTS; OWNERSHIP OF SECURITIES.......................11
Section 2.08 TRANSFER AND EXCHANGE...............................................11
Section 2.09 REPLACEMENT SECURITIES..............................................12
Section 2.10 OUTSTANDING SECURITIES..............................................13
Section 2.11 TREASURY SECURITIES.................................................14
Section 2.12 TEMPORARY SECURITIES................................................14
Section 2.13 CANCELLATION........................................................15
Section 2.14 DEFAULTED INTEREST..................................................15
Section 2.15 GLOBAL SECURITIES...................................................15
ARTICLE 3
REDEMPTION
Section 3.01 NOTICE TO THE TRUSTEE...............................................16
Section 3.02 SELECTION OF SECURITIES TO BE REDEEMED..............................16
Section 3.03 NOTICE OF REDEMPTION................................................17
Section 3.04 EFFECT OF NOTICE OF REDEMPTION......................................18
Section 3.05 DEPOSIT OF REDEMPTION PRICE.........................................18
Section 3.06 SECURITIES REDEEMED IN PART.........................................18
ARTICLE 4
COVENANTS
Section 4.01 PAYMENT OF SECURITIES...............................................18
Section 4.02 REPORTS BY THE COMPANY; COMPLIANCE CERTIFICATE......................18
Section 4.03 LIEN ON ASSETS......................................................19
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ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01 WHEN THE COMPANY MAY MERGE, ETC.....................................20
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT...................................................20
Section 6.02 ACCELERATION........................................................21
Section 6.03 OTHER REMEDIES AVAILABLE TO TRUSTEE.................................22
Section 6.04 WAIVER OF EXISTING DEFAULTS.........................................22
Section 6.05 CONTROL BY MAJORITY.................................................22
Section 6.06 LIMITATION ON SUITS BY SECURITYHOLDERS..............................22
Section 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT................................23
Section 6.08 COLLECTION SUITS BY TRUSTEE.........................................23
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM....................................23
Section 6.10 PRIORITIES..........................................................23
Section 6.11 UNDERTAKING FOR COSTS...............................................24
ARTICLE 7
TRUSTEE
Section 7.01 DUTIES OF TRUSTEE...................................................24
Section 7.02 RIGHTS OF TRUSTEE...................................................25
Section 7.03 INDIVIDUAL RIGHTS OF TRUSTEE........................................25
Section 7.04 TRUSTEE'S DISCLAIMER................................................26
Section 7.05 NOTICE OF DEFAULTS..................................................26
Section 7.06 REPORTS BY TRUSTEE TO HOLDERS.......................................26
Section 7.07 COMPENSATION AND INDEMNITY..........................................26
Section 7.08 REPLACEMENT OF TRUSTEE..............................................27
Section 7.09 SUCCESSOR TRUSTEE, AGENTS BY MERGER, ETC............................29
Section 7.10 ELIGIBILITY; DISQUALIFICATION.......................................29
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY...............29
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01 TERMINATION OF THE COMPANY'S OBLIGATIONS............................29
Section 8.02 APPLICATION OF TRUST MONEY..........................................30
Section 8.03 REPAYMENT TO THE COMPANY............................................30
Section 8.04 INDEMNITY FOR ELIGIBLE INSTRUMENTS..................................31
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ARTICLE 9
AMENDMENTS AND WAIVERS
Section 9.01 WITHOUT CONSENT OF HOLDERS..........................................31
Section 9.02 WITH CONSENT OF HOLDERS.............................................32
Section 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.................................33
Section 9.04 REVOCATION AND EFFECT OF CONSENTS...................................33
Section 9.05 NOTATION ON OR EXCHANGE OF SECURITIES...............................33
Section 9.06 TRUSTEE PROTECTED...................................................33
ARTICLE 10
SINKING FUNDS
Section 10.01 APPLICABILITY OF ARTICLE...........................................33
Section 10.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES..............34
Section 10.03 REDEMPTION OF SECURITIES FOR SINKING FUND..........................34
ARTICLE 11
MISCELLANEOUS
Section 11.01 TRUST INDENTURE ACT CONTROLS.......................................35
Section 11.02 NOTICES............................................................35
Section 11.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS........................36
Section 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.................36
Section 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION......................36
Section 11.06 RULES BY TRUSTEE AND AGENTS........................................36
Section 11.07 LEGAL HOLIDAYS.....................................................37
Section 11.08 GOVERNING LAW......................................................37
Section 11.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS......................37
Section 11.10 NO RECOURSE AGAINST OTHERS.........................................37
Section 11.11 EXECUTION IN COUNTERPARTS..........................................37
Section 11.12 CURRENCIES.........................................................37
ARTICLE 12
REPAYMENT AT THE OPTION OF HOLDERS
Section 12.01 APPLICABILITY OF ARTICLE...........................................38
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*This Table of Contents does not constitute part of the Indenture.
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INDENTURE dated as of between USA EDUCATION, INC.,
a Delaware corporation (the "COMPANY"), and THE CHASE MANHATTAN BANK, not in
its individual capacity, but solely as trustee (the "TRUSTEE").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
unsubordinated debentures, notes or other evidences of indebtedness
("SECURITIES").
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
In consideration of the premises and the purchase of the Securities by the
holders of the Securities, it is mutually covenanted and agreed as follows for
the equal and ratable benefit of the holders of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 DEFINITIONS.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company.
"AGENT" means any Paying Agent, Registrar or transfer agent as may be
appointed by the Company from time to time.
"AUTHORIZED NEWSPAPER" means a newspaper of general circulation, in
the official language of the country of publication or in the English language,
customarily published on each business day. Whenever successive weekly
publications in an Authorized Newspaper are required hereunder, they may be made
(unless otherwise expressly provided) on the same or different days of the week
and in the same or different Authorized Newspapers.
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
"BOARD OF DIRECTORS" mean the Board of Directors of the Company or any
duly authorized committee thereof.
"BOARD RESOLUTION" means a copy of a resolution of the Board of
Directors, certified by the Secretary or an Assistant Secretary of the Company
to have been adopted by the Board of Directors and to be in full force and
effect on the date of the certificate.
"COMPANY" means the party named as such in this Indenture until a
successor replaces it, and thereafter means the successor.
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"COMPANY ORDER" means an order signed by two Officers of the Company.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage of time
would be, an Event of Default.
"DEPOSITARY" means, 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 2.02 or 2.15.
"ELIGIBLE INSTRUMENTS" is defined in Section 8.01.
"EVENT OF DEFAULT" is defined in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GLOBAL SECURITY" means, 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.
"HOLDER" or "SECURITYHOLDER" means a bearer of an Unregistered
Security or of a coupon appertaining thereto or a person in whose name a
Registered Security is registered on the Registrar's books.
"INDENTURE" means this Indenture as amended or supplemented from time
to time and shall include the forms and terms of particular Series of Securities
established as contemplated hereunder.
"INTEREST" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after maturity, means interest
payable after maturity.
"LEGAL HOLIDAY" is defined in Section 11.07.
"OFFICER" means the President, any Executive Vice-President, Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, any Assistant
Secretary or the Comptroller or any Assistant Comptroller of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers of
the Company.
"OPINION OF COUNSEL" means a written opinion of legal counsel who is
acceptable to the Company and the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
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"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the stated Principal amount thereof to be due and
payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02.
"PAYING AGENT" is defined in Section 2.04.
"PRINCIPAL" of a Security means the principal amount of the Security
plus, when appropriate, the premium, if any, on the Security.
"REGISTERED SECURITY" means any Security issued hereunder and
registered as to Principal and interest by the Registrar.
"REGISTRAR" is defined in Section 2.04.
"RESPONSIBLE OFFICER" when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors or trustees, the
chairman or any vice-chairman of the executive committee of the board of
directors or trustees, the president, any executive vice-president, any senior
vice-president, any vice-president, any assistant vice-president, the treasurer,
the secretary, any trust officer, any second or assistant vice-president, 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 a particular subject.
"SEC" means the Securities and Exchange Commission.
"SERIES" or "SERIES OF SECURITIES" means a series of Securities.
"SECURITIES" means the debentures, notes or other obligations of the
Company issued, authenticated and delivered under this Indenture.
"SUBSIDIARY" means any corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company and/or by
one or more other Subsidiaries. For purposes of such definition, "voting stock"
means stock ordinarily having voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided
in Section 9.03.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and if, at any time,
there is more than one Trustee, "Trustee" as used with respect to the Securities
of any Series shall mean the Trustee with respect to that Series.
"U.S. PERSON" means a citizen, national or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United
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States or any political subdivision thereof, or an estate or trust which is
subject to United States federal income taxation regardless of its source of
income.
"UNREGISTERED SECURITY" means any Security issued hereunder which is
not a Registered Security.
"YIELD TO MATURITY" means the yield to maturity, calculated by the
Company at the time of issuance of a Series of Securities or, if applicable, at
the most recent determination of interest on such Series in accordance with
accepted financial practice.
Section 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings assigned to them therein.
Section 1.03 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting
principles;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and words in the plural
include the singular.
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ARTICLE 2
THE SECURITIES
Section 2.01 ISSUABLE IN SERIES.
The aggregate Principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more Series. There may be Registered Securities and
Unregistered Securities within a Series and the Unregistered Securities may be
subject to such restrictions, and contain such legends, as may be required by
United States laws and regulations. All Series of Securities shall be equally
and ratably entitled to the benefits of this Indenture.
Section 2.02 ESTABLISHMENT OF TERMS AND FORM OF SERIES OF SECURITIES.
(a) At or prior to the issuance of any Series of Securities,
the following shall be established by a Company Board Resolution, by one or more
Officers of the Company pursuant to a Company Board Resolution or by an
indenture supplemental to this Indenture:
(1) the title of the Securities of the Series (which
title shall distinguish the Securities of the Series from the
Securities of any other Series and from any other securities issued by
the Company);
(2) any limit upon the aggregate Principal amount of
the Securities of the Series which may be authenticated and delivered
under this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the Series pursuant to
Section 2.08, 2.09, 2.12, 3.06 or 9.05);
(3) the date or dates on which the Principal of the
Securities of the Series is payable;
(4) the rate or rates at which the Securities of the
Series shall bear interest, if any, or the manner of determining such
rate or rates of interest, the date or dates from which such interest
shall accrue, the dates on which such interest shall be payable, and,
with respect to Registered Securities, the record date for the interest
payable on any interest payment date, and the basis upon which interest
shall be calculated if other than on the basis of a 360-day year of
twelve 30-day months;
(5) the place or places where; the Principal of and
interest on Registered and Unregistered, if any, Securities of the
Series shall be payable;
(6) the period or periods within which, the price or
prices at which, and the terms and conditions upon which, Securities of
the Series may be redeemed, in whole or in part, at the option of the
Company;
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(7) the obligation, if any, of the Company to redeem
or purchase Securities of the Series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, and the terms and conditions upon which,
Securities of the Series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(8) if in other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of the
Series shall be issuable;
(9) if other than the Principal amount thereof, the
portion of the Principal amount of Securities of the Series which shall
be payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02;
(10) whether Securities of the Series shall be
issuable as Registered Securities or Unregistered Securities (with or
without interest coupons), or both, and any restrictions applicable to
the offering, sale or delivery of Unregistered Securities and whether,
and the terms upon which, Unregistered Securities of a Series may be
exchanged for Registered Securities of the same Series and vice versa;
(11) whether and under what terms and circumstances
the Company will pay additional amounts on the Securities of that
Series held by a person who is not a U.S. Person in respect of taxes or
similar charges withheld or deducted and, if so, whether the Company
will have the option to redeem such Securities rather than pay such
additional amounts;
(12) the form or forms of the Securities (or forms
thereof if Unregistered and Registered Securities shall be issuable in
such Series), including such legends as may be required by United
States laws or regulations, the form of any coupons or temporary Global
Security which may be issued and the forms of any certificates,
opinions or other documents which may be required hereunder or under
United States laws or regulations in connection with the offering,
sale, delivery or exchange of Unregistered Securities;
(13) whether the Securities of the Series are
issuable as a Global Security and, in such case, the identity of the
Depositary for such Series;
(14) if other than such coin or currency of the
United States of America as at the time of payment is legal tender for
payment of public or private debts, the coin or currency, including
composite currency, in which payment of the Principal of or interest on
the Securities of the Series shall be payable;
(15) if the Principal of or interest on the
Securities of the Series are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other than that in
which the Securities are stated to be payable, the coin or currency,
including composite currency, in which payment of the Principal of or
interest on the Securities of such Series as to which such election is
made shall be payable, the period
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or periods within which, and the terms and conditions upon which, such
election may be made;
(16) if the amount of payments of the Principal of or
interest on the Securities of the Series may be determined with
reference to an index based on any coin or currency other than that in
which the Securities are stated to be payable, the manner in which such
amounts shall be determined; and
(17) any other terms of the Series (which terms shall
not be inconsistent with the provisions of this Indenture), including
any terms which may be required by or advisable under United States
laws or regulations or advisable in connection with the marketing of
Securities of that Series.
(b) All Securities of any one Series shall be substantially
identical except as to denomination and the rate or rates of interest, if any,
and maturity and currency and, except as may otherwise be provided in or
pursuant to a Company Board Resolution or a certificate delivered pursuant to
Section 2.02(c) or in an indenture supplemental to this Indenture. All
Securities of any one Series need not be issued at the same time, and, unless
otherwise provided, a Series may be reopened for issuances of additional
Securities of such Series.
(c) If the terms and form or forms of any Series of Securities
are established by or pursuant to a Company Board Resolution, the Company shall
deliver a copy of such Board Resolution to the Trustee at or prior to the
issuance of such Series with (i) the form or forms of the Securities which have
been approved attached thereto; or (ii) if such Board Resolution authorizes a
specific Officer or Officers to establish the terms and form or forms of the
Securities, a certificate of such Officer or Officers establishing or providing
for the establishment of the terms and form or forms of the Securities, with
such form or forms of the Securities attached to the certificate establishing
such form or forms.
(d) Unregistered Securities and their coupons must have the
following statement on their face: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Section 165(j) and 1287 of the
Internal Revenue Code of 1986, as amended."
Section 2.03 EXECUTION, AUTHENTICATION, AND DELIVERY.
(a) The Securities shall be executed on behalf of the Company
by its President, an Executive Vice President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary.
Signatures shall be manual or facsimile. The Company's seal shall be reproduced
on the Securities and may, but need not, be attested. The coupons of
Unregistered Securities shall bear the facsimile signature of the Treasurer or
an Assistant Treasurer of the Company.
(b) If an Officer whose signature is on a Security or coupon
no longer holds that office at the time the Security is authenticated, the
Security or coupon shall be valid nevertheless.
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(c) A Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent, and no coupon shall
be valid until the Security to which it appertains has been so authenticated.
Such signature shall be conclusive evidence that the Security has been
authenticated under this Indenture. Each Unregistered Security shall be dated
the date of its authentication.
(d) The Trustee (or an authenticating agent appointed pursuant
to Section 2.03(f)) shall at any time, and from time to time, authenticate and
deliver Securities of any Series executed and delivered by the Company for
original issue in an unlimited aggregate Principal amount, upon receipt by the
Trustee (or an authentication agent) of (i) a Company Order or directions
pursuant to such a Company Order for the authentication and delivery of such
Securities; (ii) if the terms and form or forms of the Securities of such Series
have been established by or pursuant to a Board Resolution as permitted pursuant
to Section 2.02, a copy of such Board Resolution and any certificate that may be
required pursuant to Section 2.02(c); and (iii) an Opinion of Counsel stating:
(1) if the form of such Securities has been
established by or pursuant to a Board Resolution as permitted by
Section 2.02, that such form has been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities have been
established by or pursuant to a Board Resolution as permitted by
Section 2.02, that such terms have been established, or provision has
been made for their establishment, in conformity with the provisions of
this Indenture; and
(3) that such Securities, when authenticated and
delivered by the Trustee (or an authenticating agent) and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If the terms and form or forms of such Securities have been
established by or pursuant to a Board Resolution as permitted by Section 2.02,
the Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will materially and adversely
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Notwithstanding the foregoing, until the Company has notified
the Trustee and the Registrar that, as a result of the action described, the
Company would not suffer adverse consequences under the provisions of United
States law or regulations in effect at the time of the delivery of Unregistered
Securities, (i) delivery of Unregistered Securities will be made only outside
the United States and its possessions, and (ii) Unregistered Securities will be
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released in definitive form to the person entitled to physical delivery thereof
only upon presentation of a certificate in the form prescribed by the Company.
(e) The aggregate Principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum Principal
amount for such Series set forth in the Board Resolution (or certificate of an
Officer or Officers) or supplemental indenture pursuant to Section 2.02 or in
any additional Board Resolution or supplemental indenture which shall reopen a
Series of Securities pursuant to Section 2.02.
(f) The Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate.
Section 2.04 REGISTRAR AND PAYING AGENT.
The Company shall maintain for each Series of Securities an
office or agency where Registered Securities may be presented for registration
of transfer or for exchange ("REGISTRAR") and an office or agency where (subject
to Sections 2.05 and 2.08) Securities may be presented for payment ("PAYING
AGENT"). With respect to any Series of Securities issued in whole or in part as
Unregistered Securities, the Company shall maintain one or more Paying Agents
located outside the United States and its possessions and shall maintain such
Paying Agents for a period of two years after the Principal of such Unregistered
Securities has become due and payable. During any period thereafter for which it
is necessary in order to conform to United States tax law or regulations, the
Company will maintain a Paying Agent outside the United States and its
possessions to which the Unregistered Securities or coupons appertaining thereto
may be presented for payment and will provide the necessary funds therefor to
such Paying Agent upon reasonable notice. The Registrar shall keep a register
with respect to each Series of Securities issued in whole or in part as
Registered Securities and as to their transfer and exchange. The Company may
appoint one or more co-Registrars and one or more additional Paying Agents for
each Series of Securities and the Company may terminate the appointment of any
co-Registrar. The term "Paying Agent" includes any additional Paying Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such.
Section 2.05 PAYMENT ON SECURITIES.
(a) Subject to the following provisions, the Company will pay
to the Trustee or the Paying Agent the amounts, in such coin or currency as is
at the time legal tender for the payment of public or private debt, at the times
and for the purposes set forth herein and in the text of the Securities Series,
and the Company hereby authorizes and directs the Trustee or the Paying Agent,
from funds so paid to it, to make or cause to be made payment of the Principal
of, interest, at least 3 business days prior to the relevant interest payment
date on the Securities and coupons of each Series as set forth herein and in the
text of such Securities and
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coupons. The Trustee will arrange directly with any Paying Agent for the
payment, or the Trustee will make payment, from funds furnished by the
Company, of the Principal of and interest on the Securities and coupons of
each Series by check drawn upon a bank specified by the Company and
acceptable to the Trustee.
(b) Interest, if any, on Registered Securities of a Series
shall be paid on each interest payment date for such Series to the Holder
thereof at the close of business on the relevant record dates specified in the
Securities of such Series. The Company may pay such interest by check mailed to
such Holder's address as it appears on the register for Securities of such
Series. Principal of Registered Securities shall be payable only against
presentation and surrender thereof at the office of the Paying Agent in The City
of New York, unless the Company shall have otherwise instructed the Trustee in
writing.
(c) Anything in Section 2.05(a) or 2.05(b) to the contrary
notwithstanding, a Holder of Securities of any Series with an aggregate
Principal amount of $5 million or more may request in writing, at least 3
business days prior to the relevant interest payment date, that interest be
wired to an account specified by such Holder.
(d) To the extent provided in the Securities of a Series, (i)
interest, if any, on Unregistered Securities shall be paid only against
presentation and surrender of the coupons for such interest installments as are
evidenced thereby as they mature; and (ii) original issue discount (as defined
in Section 1273 of the Internal Revenue Code of 1986, as amended), if any, on
Unregistered Securities shall be paid only against presentation and surrender of
such Securities; in either case at the office of a Paying Agent located outside
of the United States and its possessions, unless the Company shall have
otherwise instructed the Trustee in writing. Principal of Unregistered
Securities shall be paid only against presentation and surrender thereof as
provided in the Securities of a Series. If at the time a payment of Principal of
or interest, if any, or original issue discount, if any, on an Unregistered
Security or coupon shall become due, the payment of the full amount so payable
at the office or offices of all the Paying Agents outside the United States and
its possessions is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
United States currency, then the Company will instruct the Trustee in writing as
to how and when such payment will be made and may instruct the Trustee to make
such payments at the office of a Paying Agent located in the United States,
provided that the Company has determined that provision for such payment in the
United States would not cause such Unregistered Security to be treated as a
"registration-required obligation" under United States law and regulations.
Unless otherwise instructed in writing by the Company, no payments of interest,
original issue discounts, or Principal with respect to Unregistered Securities
shall be made by a Paying Agent (i) by transfer of funds into an account
maintained by the payee in the United States, (ii) mailed to an address in the
United States, or (iii) paid to a financial institution with a United States
address by electronic funds transfer.
Section 2.06 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent, other than the
Trustee, to agree in writing that the Paying Agent will hold in trust, for the
benefit of Securityholders of any or
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all Series of Securities, or the Trustee, all money held by the Paying Agent for
the payment of Principal of or interest on such Series of Securities, and that
the Paying Agent will notify the Trustee of any default by the Company (or any
other obligor on the Securities) in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate the money held by it for the payment of Principal or interest on
any Series of Securities and hold such money as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee. Upon so doing, the Paying Agent shall have no further liability for
the money so paid. The Trustee or the Paying Agent may allow and credit to the
Company (or any other obligor on the Securities) interest on any monies received
by it hereunder at such rate as may be agreed upon with the Company (or any
other obligor on the Securities) from time to time and as may be permitted by
law.
Section 2.07 SECURITYHOLDER LISTS; OWNERSHIP OF SECURITIES.
(a) The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders of each Series of Securities. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee semiannually on or before
the last day of June and December in each year, and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require, containing all the information in the possession
or control of the Registrar, the Company or any of the Paying Agents other than
the Trustee as to the names and addresses of Holders of each such Series of
Securities.
(b) Ownership of Registered Security of a Series shall be
proved by the register for such Series kept by the Registrar. Ownership of
Unregistered Securities may be proved by the production of such Unregistered
Securities, or by a certificate or affidavit executed by the person holding such
Unregistered Securities, or by a depository with whom such Unregistered
Securities were deposited if the certificate or affidavit is satisfactory to the
Trustee. The Company, the Trustee and any agent of the Company may treat the
bearer or any Unregistered Security or coupon and the person in whose name a
Registered Security is registered as the absolute owner thereof for all
purposes.
Section 2.08 TRANSFER AND EXCHANGE.
(a) Where Registered Securities of a Series are presented to
the Registrar with a request to register their transfer or to exchange them for
an equal Principal amount of Registered Securities of the same Series containing
identical terms and provisions and date of maturity of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met.
(b) If both Registered and Unregistered Securities are
authorized for a Series of Securities and the terms of such Securities permit,
(i) Unregistered Securities may be exchanged for an equal Principal amount of
Registered or Unregistered Securities containing identical terms and provisions
of the same Series and date of maturity in any authorized denominations upon
delivery to the Registrar (or a Paying Agent, if the exchange is for
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Unregistered Securities) of the Unregistered Security with all unmatured coupons
and all matured coupons in default appertaining thereto and if all other
requirements of the Registrar (or such Paying Agent) and such Securities for
such exchange are met, and (ii) Registered Securities may be exchanged for an
equal Principal amount of Unregistered Securities of the same Series and date of
maturity in any authorized denominations (except that any coupons appertaining
to such Unregistered Securities which have matured and have been paid shall be
detached) upon delivery to the Registrar of the Registered Securities and if all
other requirements of the Registrar (or such Paying Agent) and such Securities
for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered
Securities for Registered Securities or Registered Securities for Unregistered
Securities will be subject to the satisfaction of the provisions of United
States law and regulations in effect at the time of such exchange, and no
exchange of Registered Securities for Unregistered Securities will be made until
the Company has notified the Trustee and the Registrar that, as a result of such
exchange, the Company would not suffer adverse consequences under the provisions
of United States law or regulations.
(c) To permit registrations of transfers and exchanges the
Trustee (or an authenticating agent) shall authenticate Securities upon
instructions of the Registrar or, if applicable, a Paying Agent upon surrender
of Securities for registration of transfer or for exchange as provided in this
Section. The Company will not make any charge for any registration of transfer
or exchange but may require the payment by the party requesting such
registration of transfer or exchange of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
(d) Neither the Company nor the Registrar shall be required
(i) to issue, register the transfer of or exchange Securities of any Series for
the period of 15 days immediately preceding the selection of any such Securities
to be redeemed, or (ii) to register the transfer of or exchange Securities of
any Series selected, called or being called for redemption as a whole, or the
portion being redeemed of any such Securities selected, called or being called
for redemption in part.
(e) Unregistered Securities or any coupons appertaining
thereto shall be transferable by delivery.
Section 2.09 REPLACEMENT SECURITIES.
(a) If a mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee (or an authenticating
agent), the Company shall issue and the Trustee (or an authenticating agent)
shall authenticate a replacement Registered Security, if such surrendered
security was a Registered Security, or a replacement Unregistered Security with
coupons corresponding to the coupons appertaining to the surrendered Security,
if such surrendered Security was an Unregistered Security of the same Series and
containing identical terms and provisions, if the Trustee's (or authenticating
agent's) requirements are met.
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(b) If the Holder of a Security claims that the Security or
any coupon appertaining thereto has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee (or an authenticating agent) shall
authenticate a replacement Registered Security, if such Holder's claim pertains
to a Registered Security, or a replacement Unregistered Security with coupons
corresponding to the coupons appertaining to the lost, destroyed or wrongfully
taken Unregistered Security or the Unregistered Security to which such lost,
destroyed or wrongfully taken coupon appertains, if such Holder's claim pertains
to an Unregistered Security, of the same Series and containing identical terms
and provisions, if the Trustee's requirements are met; provided, however, that
the Trustee (or an authenticating agent) or the Company may require any such
Holder to provide to the Trustee and the Company security or indemnity
sufficient in the judgment of the Company and the Trustee (or an authenticating
agent) to protect the Company, the Trustee (or an authenticating agent) and any
Agent from any loss which any of them may suffer if a Security is replaced. The
Company and the Trustee (or an authenticating agent) may charge the party
requesting a replacement Security for its expenses in replacing a Security.
(c) Every replacement Security is an additional obligation of
the Company.
(d) Notwithstanding anything to the contrary contained herein,
replacement Securities need not be issued in any of the circumstances described
in Section 2.09 if the Company or the Trustee (or an authenticating agent) have
notice that the mutilated, lost, destroyed or wrongfully taken Security has been
acquired by a bona fide purchaser.
Section 2.10 OUTSTANDING SECURITIES.
(a) Securities outstanding at any time are all Securities
authenticated by the Trustee (or an authenticating agent), except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it
ceases to be outstanding until the Trustee (or an authenticating agent) receives
proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
(c) If the Paying Agent holds on a redemption date or maturity
date money or Eligible Instruments sufficient to pay all amounts due on
Securities of any Series on that date, then, on and after that date, all
Securities of such Series cease to be outstanding and interest on them ceases to
accrue.
(d) A Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.
(e) In determining whether the Holders of the requisite
Principal amount of outstanding Securities of any Series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether sufficient funds are available for redemption or for any other purpose,
(i) the Principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purpose shall be the amount of the Principal
thereof that would be due and payable as of the date of such determination upon
a declaration of
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acceleration of the maturity thereof pursuant to Section 6.02; and (ii) the
Principal amount of any security denominated in a currency other than United
States dollars that shall be deemed to be outstanding for such purposes shall be
that amount of United States dollars that could be obtained for such amount on
such reasonable basis of exchange and as of the record date for such
determination or action (or, if there shall be no applicable record date, such
other date reasonably proximate to the date of such determination or action), in
each case, as the Company shall specify in a written notice to the Trustee.
Section 2.11 TREASURY SECURITIES.
In determining whether the Holders of the requisite Principal
amount of Securities of any Series have concurred in any direction, waiver or
consent, Securities of such Series owned by the Company or an Affiliate of the
Company shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities of such Series which the Trustee knows are so owned
shall be so disregarded.
Section 2.12 TEMPORARY SECURITIES.
(a) Until definitive Registered Securities of any Series are
ready for delivery, the Company may prepare and execute and the Trustee shall
authenticate temporary Registered Securities of such Series. Temporary
Registered Securities of any Series shall be substantially in the form of
definitive Registered Securities of such Series but may have variations that the
Company considers appropriate for temporary Securities. Every temporary
Registered Security shall be executed by the Company, authenticated by the
Trustee and registered by the Registrar, upon the same conditions, and with like
effect, as a definitive Registered Security. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Registered
Securities of the same Series and containing identical terms and provisions in
exchange for temporary Registered Securities.
(b) Until definitive Unregistered Securities of any Series are
ready for delivery, the Company may prepare and execute and the Trustee shall
authenticate one or more temporary Unregistered Securities, which may have
coupons attached or which may be in the form of a single temporary global
Unregistered Security of that Series. The temporary Unregistered Security or
Securities of any Series shall be substantially in the form approved by or
pursuant to a Board Resolution and shall be delivered to one of the Paying
Agents located outside the United States and its possessions or to such other
person or persons as the Company shall direct against such certification as the
Company may from time to time prescribe by or pursuant to a Board Resolution.
The temporary Unregistered Security or Securities of a Series shall be executed
by the Company and authenticated by the Trustee, upon the same conditions, and
with like effect, as a definitive Unregistered Security of such Series, except
as provided herein or therein. A temporary Unregistered Security or Securities
shall be exchangeable for definitive Unregistered Securities containing
identical terms and provisions at the time and on the conditions, if any,
specified in the temporary Security.
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Upon any exchange of a part of a temporary Unregistered
Security of a Series for definitive Unregistered Securities of such Series, the
temporary Unregistered Security shall be endorsed by the Trustee or Paying Agent
to reflect the reduction of its Principal amount by an amount equal to the
aggregate Principal amount of definitive Unregistered Securities of such Series
so exchanged and endorsed.
Section 2.13 CANCELLATION.
The Company at any time may deliver Securities and coupons to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Securities and coupons surrendered to them for registration
of transfer or for exchange or for payment. Except as otherwise required by this
Indenture, the Trustee shall cancel all Securities and coupons surrendered for
registration of transfer, or for exchange, payment or cancellation, and will
dispose of canceled Securities and coupons as the Company directs; provided,
however, that any Unregistered Securities of a Series delivered to the Trustee
for exchange prior to maturity shall be retained by the Trustee for reissue as
provided herein or in the Securities of such Series. The Company may not issue
new Securities to replace Securities that it has paid or delivered to the
Trustee for cancellation.
Section 2.14 DEFAULTED INTEREST.
If the Company defaults on a payment of interest on a Series
of Securities, it shall pay the defaulted interest as provided in such
Securities or in any lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed.
Section 2.15 GLOBAL SECURITIES.
(a) If the Company shall establish pursuant to Section 2.01
that the Securities of a particular Series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 2.03, 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 2.15 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 2.08, the Global
Security of a Series may be transferred, in whole but not in part and in the
manner provided in Section 2.08, 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
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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 2.15 shall no longer be applicable to the
Securities of such Series and the Company will execute, and, subject to Section
2.08, the Trustee will authenticate and deliver the Securities of such Series,
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 2.15 shall no longer apply to the Securities
of such Series. In such event the Company will execute and, subject to Section
2.08, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of
such Series, 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. Upon the exchange of the Global Security for such
Securities in authorized denominations, the Global Security shall be canceled by
the Trustee. Such Securities issued in exchange for the Global Security pursuant
to this Section 2.15(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.
ARTICLE 3
REDEMPTION
Section 3.01 NOTICE TO THE TRUSTEE.
The Company may, with respect to any Series of Securities,
reserve the right to redeem and pay the Series of Securities or any part
thereof, or may covenant to redeem and pay the Series of Securities or any part
thereof, before maturity at such time and on such terms as provided for in such
Securities. The election of the Company to redeem any Securities shall be
evidenced by a Company Order. In case of any redemption at the election of the
Company of all or less than all of the Securities of any Series with the same
issue date, interest rate and stated maturity, the Company shall, at least 60
days prior to the redemption date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such redemption
date and of the Principal amount and redemption price of Securities of such
Series to be redeemed.
Section 3.02 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any Series with the same
issue date, interest rate and stated maturity are to be redeemed, the particular
Securities to be redeemed shall be selected, not more than 60 days prior to the
redemption date, by the Trustee from the outstanding Securities of such Series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for
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redemption of portions of the Principal amount of Securities of such Series;
provided, however, that no such partial redemption shall reduce the portion of
the Principal amount of a Security of such Series not redeemed to less than the
minimum denomination for a Security of that Series established pursuant to
Section 2.02. The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption by it and, in the case of any Securities
selected for partial redemption, the amount thereof to be redeemed.
Section 3.03 NOTICE OF REDEMPTION.
(a) At least 30 days but not more than 90 days before a
redemption date, unless a shorter period is specified in the Securities to be
redeemed, the Company shall mail a notice of redemption by first-class mail to
each Holder of Registered Securities that are to be redeemed.
(b) If Unregistered Securities are to be redeemed, notice of
redemption shall be published in an Authorized Newspaper in each of The City of
New York, and London, once in each of four successive calendar weeks, the first
publication to be not less than 30 nor more than 90 days before the redemption
date.
(c) All notices shall identify the Series of Securities to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Securities of a
Series are to be redeemed, the identification (and, in the case of
partial redemption, the Principal amounts) of the particular Securities
to be redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities of the Series called for
redemption and all unmatured coupons, if any, appertaining thereto must
be surrendered to the Paying Agent to collect the redemption price; and
(6) that interest on Securities of the Series called
for redemption ceases to accrue on and after the redemption date.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
If the Company gives the notice of redemption, the Company
shall promptly provide the Trustee with evidence satisfactory to the Trustee of
its compliance with the notice requirements of this section.
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Section 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed or published, Securities
of a Series called for redemption become due and payable on the redemption date
and from and after such date (unless the Company shall default in the payment of
the redemption price) such Securities shall cease to bear interest. Upon
surrender to the Paying Agent of such Securities together with all unmatured
coupons, if any, appertaining thereto, such Securities shall be paid at the
redemption price plus accrued interest to the redemption date, but installments
of interest due on or prior to the redemption date will be payable, in the case
of Unregistered Securities, to the bearers of the coupons for such interest upon
surrender thereof, and, in the case of Registered Securities, to the Holders of
such Securities of record at the close of business on the relevant record dates.
Section 3.05 DEPOSIT OF REDEMPTION PRICE.
One business day prior to the redemption date, the Company
shall deposit with the Trustee or the Paying Agent money sufficient to pay
the redemption price of and (unless the redemption date shall be an interest
payment date) interest accrued to the redemption date on all Securities to be
redeemed on that date.
Section 3.06 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the
Company shall issue and the Trustee or the authenticating agent shall
authenticate for the Holder of that Security a new Security or Securities of the
same Series, the same form, and the same maturity in authorized denominations
equal in aggregate Principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE 4
COVENANTS
Section 4.01 PAYMENT OF SECURITIES.
(a) The Company shall pay the Principal of and interest on the
Securities on the dates and in the manner provided herein and in the Securities.
An installment of Principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay the installment.
(b) The Company shall pay interest on overdue Principal of a
Security of any Series at the rate of interest (or Yield to Maturity in the case
of Original Issue Discount Securities) borne by such Security of that Series; to
the extent lawful, it shall pay interest on overdue installments of interest at
the same rate.
Section 4.02 REPORTS BY THE COMPANY; COMPLIANCE CERTIFICATE.
The Company covenants:
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(a) to deliver to the Trustee, within 20 days after the
Company has filed the same with the SEC, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Company may be required to file with the SEC pursuant to
Section 13 or Section 15(d) of the Exchange Act, or, if the Company is not
required to file information, documents or reports pursuant to either of such
sections, to deliver to the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such of the supplementary
and periodic information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act, in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) to deliver to the Trustee and the SEC, in accordance with
the TIA or the rules and regulations prescribed from time to time by the SEC,
such additional information, documents and reports with respect to compliance by
it with the conditions and covenants provided for in this Indenture as may be
required from time to time by the TIA or such rules and regulations; and
(c) to transmit by mail to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities as
have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be delivered to the Trustee pursuant to subsections (a) and
(b) of this Section 4.02 as may be required by rules and regulations prescribed
from time to time by the SEC.
(d) to deliver to the Trustee, within 105 days after the end
of each fiscal year of the Company, a brief certificate, signed by the Company's
principal executive officer, principal financial officer or principal accounting
officer, as to such officer's knowledge of the Company's compliance with the
conditions and covenants contained in this Indenture (determined without regard
to any period of grace or requirement of notice provided herein).
(e) to deliver to the Trustee as soon as possible, and in any
event within 10 days after the Company becomes aware of the occurrence of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.03 LIEN ON ASSETS.
If at any time the Company mortgages, pledges or otherwise
subjects to any lien the whole or any part of the capital stock of the Student
Loan Marketing Association, except as provided in this Section 4.03, the Company
shall secure the outstanding Securities, and any other obligations of the
Company which may then be outstanding and entitled to the benefit of a covenant
similar in effect to this covenant, either on a priority basis or equally and
ratably with the indebtedness or obligations secured by such mortgage, pledge or
lien, for as long as any such indebtedness or obligation is so secured. The
foregoing covenant does not apply in
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the event the Board of Directors determines, in its sole discretion, that such
mortgage, pledge or lien on the capital stock of the Student Loan Marketing
Association could not reasonably be expected to detract or interfere in any
material respect from the fair market value of such capital stock or the control
of such capital stock by the Company. Notwithstanding the foregoing, nothing
contained in this Indenture is intended to prevent the Company from mortgaging,
pledging or subjecting to any lien any of the other properties or assets of the
Company, or from selling or otherwise disposing of any of the properties or
assets of the Company, including the capital stock of the Student Loan Marketing
Association.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01 WHEN THE COMPANY MAY MERGE, ETC.
The Company may consolidate with, or merge into, or be merged
into, or transfer or lease its properties and assets substantially as an
entirety to, any person provided (i) that the person is a corporation which
assumes by supplemental indenture all the obligations of the Company under the
Securities and any coupons appertaining thereto and under this Indenture; and
(ii) that after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing. Thereafter, all such obligations of the Company
shall terminate.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT.
An "Event of Default" occurs with respect to the Securities of
any Series if:
(1) the Company defaults in the payment of interest
on any Security of that Series when the same becomes due and payable
and the Default continues for a period of 30 days;
(2) the Company defaults in the payment of the
Principal of any Security of that Series when the same becomes due and
payable at maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other
agreements in the Securities of that Series, in this Indenture or in
any supplemental indenture under which the Securities of that Series
may have been issued, and the Default continues for the period and
after the notice specified below;
(4) the Company, pursuant to or within the meaning of
any Bankruptcy Law:
(a) commence a voluntary case,
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(b) consent to the entry of an order for
relief against it in an involuntary case,
(c) consent to the appointment of a
Custodian of it or for all or substantially all of its
property, or
(d) make a general assignment for the
benefit of its creditors; or
(5) a court of competent jurisdiction enters an order
under any Bankruptcy Law that:
(a) is for relief against the Company in an
involuntary case,
(b) appoints a Custodian of the Company or
for all or substantially all of its property, or
(c) orders the liquidation of the Company
and the order or decree remains unstayed and in effect for
90 days.
A Default under clause (3) is not an Event of Default until
the Trustee or the Holders of at least 25% in Principal amount of all the
outstanding Securities of that Series notify the Company (and the Trustee in the
case of notification by such Holders) of the Default and the Company does not
cure the Default or such Default is not waived within 60 days after receipt of
the notice. The notice must specify the Default, demand that it be remedied, and
state that the notice is a "Notice of Default."
Section 6.02 ACCELERATION.
If an Event of Default occurs with respect to the Securities
of any Series and is continuing, the Trustee, by notice to the Company, or the
Holders of at least 25% in Principal amount of all of the outstanding Securities
of that Series, by notice to the Company and the Trustee, may declare the
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 the Securities of that Series to be due and
payable. Upon such declaration, such Principal (or, in the case of Original
Issue Discount Securities, such specified amount) shall be due and payable
immediately. The Holders of a majority in Principal amount of all of the
Securities of that Series, by notice to the Trustee, may rescind such a
declaration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of Principal or interest that has become due solely
because of the acceleration. Notwithstanding the foregoing, an Event of Default
under clause 6.01 (4) or (5) shall cause the principal (or, if the Securities of
that Series are Original Issue Discount Securities, such portion of the
Principal
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amount as may be specified in the terms of that Series) of all the Securities of
that Series to be due and payable without declaration or other action by the
Trustee or Holders of outstanding Securities of that Series.
Section 6.03 OTHER REMEDIES AVAILABLE TO TRUSTEE.
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of Principal of
or interest on the Securities of the Series that is in default or to enforce the
performance of any provision of the Securities of that Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04 WAIVER OF EXISTING DEFAULTS.
The Holders of a majority in Principal amount of any Series of
Securities by notice to the Trustee may waive an existing Default with respect
to that Series and its consequences, except a Default in the payment of the
Principal of or interest on any Security.
Section 6.05 CONTROL BY MAJORITY.
The Holders of a majority in Principal amount of the
Securities of each Series affected (with each such Series voting as a class) may
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 it.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that would involve the Trustee in personal liability.
Section 6.06 LIMITATION ON SUITS BY SECURITYHOLDERS.
A Securityholder may pursue a remedy with respect to this
Indenture or the Securities of any Series only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in Principal amount of the
Securities of that Series make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability, or expense to be, or
which may be, incurred by the Trustee in pursuing the remedy;
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(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60 day period, the Holders of a majority in
Principal amount of the Securities of that Series do not give the Trustee a
direction inconsistent with the request.
A Securityholder of any Series may not use this Indenture to
prejudice the rights of another Securityholder of that Series or any other
Series or to obtain a preference or priority over another Securityholder of that
Series or any other Series.
Section 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of the Principal of and
interest on the Security, on or after the respective due dates expressed in the
Security, and the right of any Holder of a coupon to receive payment of interest
due as provided in such coupon, or to bring suit for the enforcement of any such
payment, on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.08 COLLECTION SUITS BY TRUSTEE.
If a Default specified in Section 6.01(1) or (2) occurs and
continues for the period specified therein, if any, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of such Principal and interest then in default.
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings relating to
the Company or its creditors or property.
Section 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due it under Section 7.07;
SECOND: to Holders of Securities in respect of which or for
the benefit of which such money has been collected for amounts due and unpaid on
such Securities for Principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for Principal and interest, respectively; and
THIRD: to the person or persons lawfully entitled thereto,
or as a court of competent jurisdiction may direct.
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The Trustee may fix a record date (with respect to Registered
Securities) and payment date for any such payment to Holders of Securities.
Any such record date shall not be less than 10 days nor more
than 60 days prior to the applicable payment date.
Section 6.11 UNDERTAKING FOR COSTS.
If any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable attorneys' fees against
any party litigant in this suit having due regard to the merits and good faith
of the claims or defenses made by the party litigant. This Section does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a
suit by Holders of more than 10% in Principal amount of the Securities of any
Series.
ARTICLE 7
TRUSTEE
Section 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise its rights, duties and powers under 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.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that
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 its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon notices,
certificates, opinions or other documents furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee
shall examine the notices, certificates, opinions or other documents to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section;
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(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Sections 6.04 and 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraph (a), (b), and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any loss,
liability or expense (including reasonable attorneys' fees) that might be
incurred by it.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on and shall be fully
protected in acting or refraining from acting any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel or require an Officers' Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on a Board Resolution, the written advice of
counsel acceptable to the Company or the Trustee, a certificate of an Officer or
Officers delivered pursuant to Section 2.02(b), an Officers' Certificate, or an
Opinion of Counsel.
(c) The Trustee may act through agents or any of its
affiliates and shall not be responsible for the misconduct or negligence of any
agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) Except as otherwise provided in Section 7.01, the Trustee
shall not be liable for any action or omission of any Agent which is not the
Trustee.
The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall
take such action with respect to this Indenture as it shall be directed, and
the Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture and as
specifically directed by the Company, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
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 which conform to the requirements of this
Indenture;
The Trustee shall not be liable for any error of judgment made
in good faith by an officer or officers of the Trustee, unless it shall be
conclusively determined by a court of competent jurisdiction that the Trustee
was grossly negligent in ascertaining the pertinent facts;
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 any
direction of the Company given under this Indenture.
None of the provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise to incur any liability,
financial or otherwise, in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or indemnity satisfactory
to it against such risk or liability is not assured to it.
Whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of gross negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and
established by a certificate signed by one of the Company's officers, as the
case may be, and delivered to the Trustee and such certificate, in the
absence of gross negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof.
The Trustee shall have no obligation to invest and reinvest
any cash held by it in the absence of timely and specific written investment
direction from the Company. In no event shall the Trustee be liable for the
selection of investments or for investment losses incurred thereon. The
Trustee shall have no liability in respect of losses incurred as a result of
the liquidation of any investment prior to its stated maturity or the failure
of the Company to provide timely written investment direction.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the business of the Trustee shall be
the successor of the Trustee hereunder without the execution or filing of any
paper with any party hereto or any further act on the part of any of the
parties hereto except where an instrument of transfer or assignment is
required by law to effect such succession, anything herein to the contrary
notwithstanding.
Neither the Trustee nor any of its officers, directors,
employees or agents shall be liable for any action taken or omitted under
this Indenture or in connection therewith except to the extent caused by the
Trustee's gross negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction, no longer subject to appeal or
review. The parties each (for itself and any person or entity claiming
through it) hereby releases, waives, discharges, exculpates and covenants not
to sue the Trustee for any action taken or omitted under this Indenture
except to the extent caused by the Trustee's gross negligence or willful
misconduct. Anything in this Indenture to the contrary notwithstanding, in no
event shall the Trustee be liable for special, indirect or consequential loss
or damage of any kind whatsoever (including but not limited to lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
Section 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, or
one of its Affiliates with the same rights it would have if it were not Trustee,
subject to Sections 7.10 and 7.11. Any Agent may do the same with like rights.
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Section 7.04 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities. It shall not be accountable for
the Company's use of the proceeds from the Securities or for monies paid over to
the Company or by the Company to any Holders or to any Paying Agent pursuant to
the Indenture, and it shall not be responsible for any statement in the
Securities other than its certificate of authentication.
Section 7.05 NOTICE OF DEFAULTS.
If a Default occurs and is continuing with respect to the
Securities of any Series and if it is known to the Trustee, the Trustee shall
mail to each Holder of a Security of that Series entitled to receive reports
pursuant to Section 4.02(c) (and, if Unregistered Securities of that Series are
outstanding, shall cause to be published at least once in an Authorized
Newspaper in each of The City of New York, and London) notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment on
the Securities of any Series, the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding such notice is in the interests of Securityholders of that Series.
Section 7.06 REPORTS BY TRUSTEE TO HOLDERS.
(a) Within 60 days after each anniversary date of the first
issue of a Series of Securities, the Trustee shall mail to each Securityholder
of that Series entitled to receive reports pursuant to Section 4.02(c) a brief
report dated as of such date that complies with TIA Section 313(a). The Trustee
also shall comply with TIA Section 313(b).
(b) At the time that it mails such a report to Securityholders
of any Series, the Trustee shall file a copy of that report with the SEC and
with each stock exchange on which the Securities of that Series are listed. The
Company shall provide written notice to the Trustee when the Securities of any
Series are listed on any stock exchange.
Section 7.07 COMPENSATION AND INDEMNITY.
(a) The Company shall pay to the Trustee from time to time
compensation for its services. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it in connection with the performance of
its duties under this Indenture. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee and its
officers, directors, employees, repesentatives and agents from and against
any loss, claims, expenses, obligations, charges, or liability incurred by it
of whatever kind or nature, regardless of their merit, demanded, asserted or
claimed against the Trustee directly or indirectly relating to or arising out
of or in connection with its acceptance or administration of the trust or
trusts hereunder and by reason of its participation in the transactions
contemplated hereby. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. The Company shall defend the claim,
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the
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reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent.
(c) The Company need not reimburse any expense or indemnify
against any loss of liability incurred by the Trustee through gears negligence
or bad faith.
(d) To secure the payment obligations of the Company pursuant
to this Section, the Trustee shall have a lien prior to the Securities of any
Series on all money or property held or collected by the Trustee, except that
held in trust to pay Principal and interest on particular Securities of a
Series.
(e) If the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(4) or (5) occurs, such expenses
and the compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the
termination of the Indenture or the earlier resignation or removal of the
Trustee.
Section 7.08 REPLACEMENT OF TRUSTEE.
(a) The resignation or removal of the Trustee and the
appointment of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section.
(b) The Trustee may resign with respect to the Securities of
any Series by so notifying the Company. The Holders of a majority in Principal
amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company, and may appoint a
successor Trustee for such Series with the Company's consent.
(c) The Company may remove the Trustee with respect to
Securities of any Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
In addition, the Company may remove the Trustee with respect
to Securities of any Series without cause if the Company gives written notice to
the Trustee of such proposed removal at least six months in advance of the
proposed effective date of such removal; provided, however, that such removal
shall not become effective if a Default exists on the date of the giving of such
notice or occurs prior to the date such removal is scheduled to become
effective.
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(d) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to Securities of
any Series, the Company shall promptly appoint a successor Trustee for such
Series.
(e) If a successor Trustee with respect to the Securities of
any Series does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of a
majority in Principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) If the Trustee with respect to the Securities of any
Series fails to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the removal of such
Trustee and the appointment of a successor Trustee.
(g) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and the Company. Thereupon, the
resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers, and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under this
Indenture. The retiring Trustee shall promptly transfer all property held by it
as Trustee with respect to such Series of Securities to the successor Trustee
subject to the lien provided for in Section 7.07. The Company shall give notice
of each appointment of a successor Trustee for any Series of Securities by
publishing notice of such event once in an Authorized Newspaper in each of The
City of New York, and London, by mailing written notice of such event by
first-class mail to the Holders of Securities of such Series entitled to receive
reports pursuant to Section 4.02(c).
(h) All provisions of this Section 7.08 except subparagraphs
(c)(1) and (d) and the words "subject to the lien provided for in Section 7.07"
in subparagraph (g) shall apply also to any Paying Agent located outside the
U.S. and its possessions and required by Section 2.04.
(i) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) Series, the
Company, the retiring Trustee and such successor Trustee shall execute and
deliver a supplemental indenture wherein such successor Trustee shall accept
such appointment, and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts, and duties of the retiring
Trustee with respect to the Securities of that or those Series to which the
appointment of such successor Trustee relates; (2) if the retiring Trustee is
not retiring with respect to all Securities, 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 that
or those Series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee; and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such
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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.
Section 7.09 SUCCESSOR TRUSTEE, AGENTS BY MERGER, ETC.
If the Trustee or any Agent consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
business assets to, another corporation, the successor corporation, without any
further act, shall be the successor Trustee or Agent, as the case may be.
Section 7.10 ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee with respect to
each Series of Securities who satisfies the requirements of TIA Section
310(a)(1).
The Trustee shall always have a combined capital and surplus
of at least $10,000,000 as set forth in its most recent published annual report
of condition. The Trustee is subject to TIA Section 310(b), including the
optional provision permitted by the second sentence of TIA Section 310(b)(9),
except that there shall be excluded from the operation of TIA Section 310(b)(1)
each Series of Securities and all indentures of the Company or any of its
Affiliates now or hereafter existing which may be excluded under the proviso of
TIA Section 310(b)(1).
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01 TERMINATION OF THE COMPANY'S OBLIGATIONS.
(a) The Company reserves the right to terminate all of its
obligations under the Securities and this Indenture with respect to the
Securities of any Series or any installment of Principal of or interest on that
Series if the Company irrevocably deposits in trust with the Trustee money or
Eligible Instruments sufficient to pay, when due, the Principal of and interest
on the Securities of that Series to maturity or redemption or such installment
of Principal or interest, as the case may be, and if all other conditions set
forth in the Securities of that Series are met. The Company shall designate the
installment or installments of Principal or interest to be so satisfied.
(b) However, the Company's obligations in Sections 2.04, 2.05,
2.06, 2.07, 2.08, 2.09, 4.01, 7.07, 7.08, 8.03 and 8.04 shall survive until the
Securities are no longer
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outstanding. Thereafter, the Company's obligations in Sections 7.07, 8.03 and
8.04 shall survive.
(c) Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date in accordance with Article 3.
(d) After a deposit by the Company in accordance with this
Section in respect of the Securities of a Series, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of the Series in respect of which the deposit has been made and under
this Indenture with respect to the Securities of that Series except for those
surviving obligations specified above.
(e) In order to have money available on a payment date to pay
the Principal of or interest on the Securities of any Series, the Eligible
Instruments shall be payable as to the Principal of or interest on or before
such payment date in such amounts as will provide the necessary money. Eligible
Instruments shall not be callable at the issuer's option.
(f) "Eligible Instruments" means:
(i) direct obligations of the United States of
America for the payment of which the full faith and credit of the
United States of America 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 timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America.
Section 8.02 APPLICATION OF TRUST MONEY.
The Trustee shall hold money or Eligible Instruments deposited
with it pursuant to Section 8.01. It shall apply the deposited money and the
money from Eligible Instruments through the Paying Agent and in accordance with
this Indenture to the payment of the Principal of and interest on the Securities
of each Series in respect of which the deposit shall have been made.
Section 8.03 REPAYMENT TO THE COMPANY.
(a) Subject to the provisions of Section 7.07(d), the Trustee
and the Paying Agent shall promptly pay to the Company, upon request, any money
or securities held by them at any time in excess of that required for the
payment of Principal or interest on the Securities.
(b) The Trustee and the Paying Agent shall promptly pay to the
Company, upon request, any money held by them for the payment of Principal or
interest that remains unclaimed for two years. After that, Securityholders
entitled to the money must look to the Company for payment as general creditors
unless an abandoned property law designates
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another person. Upon payment to the Company, the Trustee and Paying Agent are
released of any further obligation or liability with respect to the utilization
of such moneys.
Section 8.04 INDEMNITY FOR ELIGIBLE INSTRUMENTS.
The Company shall pay and shall indemnify the Trustee and each
Securityholder of each Series in respect of which the deposit shall have been
made against any tax, fee, or other charge imposed on or assessed against
deposited Eligible Instruments or the Principal and interest received on such
instruments.
ARTICLE 9
AMENDMENTS AND WAIVERS
Section 9.01 WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may enter into one or more
supplemental indentures without consent of any Securityholder for any of the
following purposes:
(1) to cure any ambiguity, defect, or inconsistency herein,
in the Securities of any Series;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
(4) to add to the covenants of the Company for the benefit 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 solely for the benefit of such Series) or
to surrender any right or power herein conferred upon the Company;
(5) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or purposes of
issue, authentication, and delivery of Securities, as herein set forth;
(6) to secure the Securities pursuant to Section 4.03.
(7) to make any change that does not adversely affect the
rights of any Securityholder in any material respect; or
(8) to provide for the issuance of and establish the form and
terms and conditions of Securities of any Series as provided in Section 2.02, 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.
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Section 9.02 WITH CONSENT OF HOLDERS.
(a) With the written consent of the Holders of a majority in
Principal amount of the outstanding Securities of each Series affected by such
supplemental indenture (with each Series voting as a class), the Company and the
Trustee may enter into a supplemental indenture to add any provisions to or to
change or eliminate any provisions of this Indenture or of any supplemental
indenture or to modify, in each case in any manner not covered by Section 9.01,
the rights of the Securityholders of each such Series. The Holders of a majority
in Principal amount of the outstanding Securities of each Series affected by
such waiver (with each Series voting as a class), by notice to the Trustee, may
waive compliance by the Company with any provision of this Indenture, any
supplemental indenture, or the Securities of any such Series, except a Default
in the payment of the Principal of or interest on any Security. However, without
the consent of each Securityholder affected, an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment or waiver;
(2) change the rate of or change the time for payment
of interest on any Security;
(3) change the Principal of or change the fixed
maturity of any Security;
(4) waive a Default in the payment of the Principal
of or interest on any Security;
(5) make any Security payable in money other than
that stated in the Security; or
(6) make any change in Section 6.04 (Waiver of
Existing Defaults), 6.07 (Rights of Holders to Receive Payment), or this
Section 9.02(a) (third sentence).
(b) It is not necessary under this Section 9.02 for the
Securityholders to consent to the particular form of any proposed supplemental
indenture, but it is sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
9.02, the Company shall transmit by mail a notice, setting forth in general
terms the substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities as
are entitled to receive reports pursuant to Section 4.02(c). Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
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Section 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities of one or
more Series shall be set forth in a supplemental indenture that complies with
the TIA as then in effect.
Section 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to
it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security even if a notation of the consent is
not made on any Security. However, any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of his Security if the Trustee
receives a written notice of revocation before the date the amendment or waiver
becomes effective. After an amendment or waiver becomes effective, it shall bind
every Securityholder of each Series affected by such amendment or wavier.
Section 9.05 NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee shall place an appropriate notation about an
amendment or waiver on any Security of any Series thereafter authenticated. The
Company, in exchange for Securities of that Series, may issue and the Trustee
shall authenticate new Securities of that Series that reflect the amendment or
waiver.
Section 9.06 TRUSTEE PROTECTED.
The Trustee need not sign any supplemental indenture that
adversely affects its rights or obligations. The Company shall provide to the
Trustee an Opinion of Counsel that any supplemental indenture is authorized or
permitted hereunder and that all conditions precedent to such execution and
delivery have been satisfied.
ARTICLE 10
SINKING FUNDS
Section 10.01 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a Series, except as otherwise
permitted or required by any form of Security of such Series issued pursuant to
this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any Series is herein referred to as "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of such Series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any Series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 10.02. Each sinking fund payment shall be
applied to the redemption of Securities of any Series as provided for by the
terms of Securities of such Series.
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Section 10.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such Series to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series, (1) deliver outstanding Securities of such Series (other than any of
such Securities previously called for redemption or any of such Securities in
respect of which cash shall have been released to the Company) to the Trustee
for cancellation pursuant to Section 2.13, or (2) apply as a credit Securities
of such Series which have been previously cancelled pursuant to Section 2.13 or
redeemed either at the election of the Company pursuant to the terms of such
Series of Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, provided that such
Series of Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
If as a result of the delivery or credit of Securities of any Series in lieu of
cash payments pursuant to this Section 10.02, the Principal amount of Securities
of such Series to be redeemed in order to exhaust the aforesaid cash payment
shall be less than $500,000, the Trustee shall not call Securities of such
Series for redemption, except upon Company Order, and such cash payment shall be
held by the Trustee or a Paying Agent and applied to the next succeeding sinking
fund payment; provided, however, that the Trustee or such Paying Agent shall at
the request of the Company from time to time pay over and deliver to the Company
any cash payment so being held by the Trustee or such Paying Agent upon delivery
by the Company to the Trustee of Securities of that Series for cancellation
pursuant to Section 2.13 having an unpaid Principal amount equal to the cash
payment required to be released to the Company. Funds held by the Trustee under
this Section may be invested, pursuant to a Company Order, in Eligible
Instruments for the benefit of the Company.
Section 10.03 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date
for any Series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuring mandatory
sinking fund payment for that Series pursuant to the terms of that Series, the
portion thereof, if any, which is to be satisfied by payment of cash, and the
portion thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that Series pursuant to Section 10.02, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date, the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.03. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.04, 3.05 and 3.06.
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ARTICLE 11
MISCELLANEOUS
Section 11.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with a provision which is required to be included in this Indenture by
the TIA, the required provision shall control.
Section 11.02 NOTICES.
(a) Any notice or communication by the Company or the Trustee
is duly given if in writing and delivered in person or mailed by certified mail:
if to the Company to:
USA Education, Inc.
11600 Sallie Mae Drive
Reston, Virginia 20193
Attention: Treasurer
if to the Trustee to:
The Chase Manhattan Bank
450 West 33rd Street, 10th Floor
New York, New York 10001
Attention: [Trust Services]
(b) The Company or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Holders of Securities
entitled to receive reports pursuant to Section 4.02(c) shall be mailed by
first-class mail to the addresses for Holders of Registered Securities shown on
the register kept by the Registrar and to addresses filed with the Trustee for
other Holders. Failure to so mail a notice or communication or any defect in
such notice or communication shall not affect its sufficiency with respect to
other Holders of Securities of that or any other Series entitled to receive
notice.
(d) If a notice of communication is mailed in the manner
provided above within the time prescribed, it is conclusively presumed to have
been duly given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and to each Agent at the
same time.
(f) If it shall be impractical in the opinion of the Trustee
or the Company to make any publication of any notice required hereby in an
Authorized Newspaper, any
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publication or other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
Section 11.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders of any Series may communicate pursuant to TIA
Section 312(b) with other Securityholders of that Series or of all Series with
respect to their rights under this Indenture or under the Securities of that
Series or of all Series. The Company the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
Section 11.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) 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
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
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 11.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a
meeting of Securityholders of one or more Series. The Paying Agent or Registrar
may make reasonable rules and set reasonable requirements for its functions.
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Section 11.07 LEGAL HOLIDAYS.
Except as may otherwise be provided in the form of Securities
of any particular Series pursuant to the provisions of this Indenture, a "Legal
Holiday" is a Saturday, Sunday, or a day on which banking institutions are not
required to be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 11.08 GOVERNING LAW.
The laws of the State of New York shall govern this Indenture,
the Securities and any coupons appertaining thereto.
Section 11.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan, or debt agreement of the Company or an Affiliate. No such indenture, loan,
or debt agreement may be used to interpret this Indenture.
Section 11.10 NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder, as such, of the
Company shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
Section 11.11 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 instrument.
Section 11.12 CURRENCIES.
Except as may otherwise be provided in the form of Securities
of any particular Series pursuant to the provisions of this Indenture, all
references in this Indenture or in the Securities to "dollars," "$," or any
similar reference shall be to the currency of the United States of America.
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ARTICLE 12
REPAYMENT AT THE OPTION OF HOLDERS
Section 12.01 APPLICABILITY OF ARTICLE.
Securities of any Series which are repayable at the option of
the Holders thereof before their stated maturity shall be repaid in accordance
with the terms of the Securities of such Series.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
USA EDUCATION, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
(SEAL)
Attest:______________________________________________
Name:________________________________________________
Title:_______________________________________________
THE CHASE MANHATTAN BANK, not in its
individual capacity, but solely as Trustee
By:_________________________________________
Name:_______________________________________
Title:______________________________________
(SEAL)
Attest:______________________________________________
Name:________________________________________________
Title:_______________________________________________
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