<PAGE> 1
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED):
MARCH 12, 1997
AMRESCO, INC.
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STATE OF DELAWARE 0-8630 59-1781257
(STATE OF INCORPORATION) (COMMISSION FILE NO.) (IRS EMPLOYER IDENTIFICATION NO.)
</TABLE>
700 NORTH PEARL STREET
SUITE 2400, LB 342
DALLAS, TX 75201
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (214) 953-7700
- --------------------------------------------------------------------------------
Location of Exhibit Index - Page 4
<PAGE> 2
ITEM 5. OTHER EVENTS.
Senior Subordinated Notes Offering. On March 12, 1997, AMRESCO, INC.
(the "Company") completed an underwritten public offering of $192.5 million
aggregate principal amount of the Company's Senior Subordinated Notes, Series
1997-A due 2004 (the "Senior Subordinated Notes"). The Senior Subordinated
Notes were registered pursuant to the Company's $250.0 million shelf
registration statement, which was declared effective by the SEC on July 1,
1996. The Senior Subordinated Notes offering was the second takedown from such
shelf registration statement. The first takedown was a $57.5 million offering
of Senior Notes, Series 1996-A due 1999. The net proceeds (before deducting
expenses) from the offering of the Senior Subordinated Notes aggregated
approximately $186.6 million and were used to repay or reduce various bank
borrowings. The Senior Subordinated Notes were sold to the public at 99.701% of
their face amount with a 2.75% underwriting discount. Interest on the Senior
Subordinated Notes will be payable semi-annually on March 15 and September 15
of each year, at a rate of 10% per annum beginning September 15, 1997. The
Senior Subordinated Notes are not secured. The underwriters of this offering
were Piper Jaffray Inc., Keefe, Bruyette & Woods, Inc., Legg Mason Wood Walker,
Incorporated, McDonald & Company Securities, Inc. and Morgan Keegan & Company,
Inc.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
The following documents are attached hereto as exhibits:
(a) Financial statements of business acquired -- not applicable.
(b) Pro Forma Combined Condensed Financial Information -- not
applicable.
(c) Exhibits:
4.1 Indenture, dated as of March 1, 1997, between the
Company and Bank One, Columbus, N.A., as trustee.
4.2 Officers' Certificate and Company Order dated as of
March 12, 1997, establishing the terms of the Senior
Subordinated Notes.
2
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMRESCO, INC.
Date: March 24, 1997 By: /s/ L. KEITH BLACKWELL
---------------------------------
Name: L. Keith Blackwell
Title: Vice President, General
Counsel and Secretary
3
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EXHIBIT INDEX
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<CAPTION>
Exhibit
Number DESCRIPTION OF EXHIBIT
- ------- ----------------------
<S> <C>
4.1 Indenture, dated as of March 1, 1997,
between the Company and Bank One,
Columbus, N.A., as trustee.
4.2 Officers' Certificate and Company
Order dated as of March 12, 1997,
establishing the terms of the Senior
Subordinated Notes.
</TABLE>
4
<PAGE> 1
EXHIBIT 4.1
________________________________________________________________________________
AMRESCO, INC.
AS ISSUER
TO
BANK ONE, COLUMBUS, N.A.
AS TRUSTEE
____________________
SUBORDINATED NOTES
____________________
INDENTURE
DATED AS OF MARCH 1, 1997
________________________________________________________________________________
<PAGE> 2
AMRESCO, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of March 1, 1997
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
----------- -----------------
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608,610
Section 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 701(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701(c)
Section 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be part of the Indenture.
i
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TABLE OF CONTENTS
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Page
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RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 107. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . 15
SECTION 203. Form of Legend for Global Securities . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . 20
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 305. Registration, Registration of Transfer and Exchange; Paying Agent and Place of
Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . 25
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . 26
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 311. Maximum Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
</TABLE>
ii
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<TABLE>
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ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 403. Defeasance and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . 34
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . 35
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . 37
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . 38
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . 43
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . 45
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
iii
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<TABLE>
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . 48
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . 49
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 701. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . 50
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 703. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms . . . . . . . . . . . . . . . . . 52
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . 53
SECTION 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . 55
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . 56
SECTION 907. Notice of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 908. Supplemental Indentures With Consent of Holders of Senior Debt . . . . . . . . . . . 57
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . 58
SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1006. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1007. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1008. Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1009. Defeasance of Certain Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1010. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . 62
</TABLE>
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<TABLE>
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SECTION 1011. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1012. Exceptions to Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . 63
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . 66
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE THIRTEEN
SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1301. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1302. Distribution on Dissolution, Liquidation and Reorganization . . . . . . . . . . . . . 67
SECTION 1303. No Payment When Senior Debt in Default . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1304. Payment to Holders of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1305. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1306. Payment on Securities Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1307. Authorization of Holders to Trustee to Effect Subordination . . . . . . . . . . . . . 70
SECTION 1308. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1309. Trustee as Holder of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1310. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1311. No Fiduciary Duty by Trustee to Holders of Senior Debt . . . . . . . . . . . . . . . 72
SECTION 1312. Paying Agent Treated as Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1313. Exclusive Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1314. Notices to Holders of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1315. Rights of Holders of Senior Debt Not Impaired . . . . . . . . . . . . . . . . . . . . 73
</TABLE>
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ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1401. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1402. Notice of Repurchase Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1403. Deposit of Repurchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1404. Securities Payable on Repurchase Date . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1405. Securities Repurchased in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE FIFTEEN
CORPORATE OBLIGATION ONLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1501. Indenture and Securities Solely Corporate Obligations . . . . . . . . . . . . . . . . 75
</TABLE>
vi
<PAGE> 8
INDENTURE, dated as of March 1, 1997 between AMRESCO, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having executive offices located at Plaza of the
Americas, 700 North Pearl Street, Dallas, Texas 75201, and Bank One, Columbus,
N.A., a national banking association duly organized and existing under the laws
of the United States, as Trustee (herein called the "Trustee"), having its
principal office at 100 Broad Street, Columbus, Ohio 43215.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as herein
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof (including holders from time to time of the Securities of any
series held through a Holder which is a Depositary (as defined herein)), as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes hereof, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act or by Commission rule or regulation under the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
<PAGE> 9
(3) any gender used herein shall be deemed and construed
to include correlative words of the masculine, feminine or neuter
gender;
(4) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP and, except
as otherwise herein expressly provided, GAAP with respect to any
computation required or permitted hereunder shall mean GAAP at the
date of such computation;
(5) the words "herein", "hereof' and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(6) the word "or" is always used inclusively (for
example, the phrase "A or B or both," not "either A or B but not
both").
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized (generally or in any particular respect)
committee appointed by that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification. Where any provision hereof refers to action to be taken
pursuant to a Board Resolution (including establishment of any series of the
Securities and the forms and terms thereof), such action may be taken by any
committee, officer or employee of the Company authorized to take such action
(generally or in any particular respect) by a Board Resolution.
"Business Day", when used with respect to any Place of Payment or
other location, means each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions generally in that Place of Payment
or other location are authorized or obligated by law or executive order to
close, unless otherwise specified in a form of Security.
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<PAGE> 10
"Capital Lease Obligation" means, as to any Person, the obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real or personal property, which obligations are
required to be classified and accounted for as capital lease obligations on the
balance sheet of such Person under GAAP, and the amount of such obligations at
the time any determination thereof is to be made for purposes hereof shall be
the amount of the liability in respect of a capital lease that would at such
time be required to be capitalized on a balance sheet in accordance with GAAP.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph hereof until a successor corporation shall have become such pursuant
to the applicable provisions hereof, and thereafter "Company" shall mean such
successor corporation, and any other obligor upon the Securities.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President, its Chief Executive Officer, its Chief
Operating Officer, its Chief Financial Officer, a Vice President, its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, or
by any other officer of the Company authorized to sign by Board Resolution, and
delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which at the date of original execution hereof is 100 Broad
Street, Columbus, Ohio 43215.
"Corporation" includes corporations, associations, companies, joint
stock companies, limited liability companies or business trusts.
"Credit Enhancement Facility" means any document, instrument or
agreement entered into by any Person for the purpose of providing credit
support for Securitization Transactions and Warehouse Facilities.
"Default Notice" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the clearing agency registered under the Exchange Act, specified
for that purpose as contemplated by Section 301 or any successor clearing
agency registered under the Exchange Act as contemplated by Section 305, and if
at any time there
3
<PAGE> 11
is more than one such Person, "Depositary" as used with respect to the
Securities of any series shall mean the Depositary with respect to the
Securities of such series.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exclusive Power" has the meaning specified in Section 1313.
"Funded Debt" means any of the following obligations of the Company or
any Subsidiary which by its terms matures at or is extendable or renewable at
the sole option of the obligor without requiring the consent of the obligee to
a date more than 360 days after the date of the creation or incurrence of such
obligation: (i) any obligations, contingent or otherwise, for borrowed money or
for the deferred purchase price of property, assets, securities or services
(including, without limitation, any interest accruing subsequent to an event of
default), (ii) all obligations (including the Debt Securities) evidenced by
bonds, notes, debentures or other similar instruments, (iii) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property acquired (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), except any such
obligation that constitutes a trade payable and an accrued liability arising in
the ordinary course of business, if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance sheet prepared in
accordance with GAAP, (iv) all Capital Lease Obligations, (v) liabilities of
the Company actually due and payable under banker's acceptances or letters of
credit, (vi) all indebtedness of the type referred to in clause (i), (ii),
(iii), (iv) or (v) above secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be secured by)
any lien upon or security interest in property of the Company or any Subsidiary
(including, without limitation, accounts and contract rights), even though the
Company or any Subsidiary has not assumed or become liable for the payment of
such indebtedness and (vii) any guarantee or endorsement (other than for
collection or deposit in the ordinary course of business) or discount with
recourse of, or other agreement, contingent or otherwise, to purchase,
repurchase, or otherwise acquire, to supply, or advance funds or become liable
with respect to, any indebtedness or any obligation of the type referred to in
any of the foregoing clauses (i) through (vi), regardless of whether such
obligation would appear on a balance sheet.
"GAAP" means generally accepted accounting principles in the United
States of America set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board in effect from time to time.
"Global Security" means a Security bearing the legend specified in
Section 203 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or nominee.
4
<PAGE> 12
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument due to the appointment of
one or more separate Trustees for any one or more separate series of Securities
pursuant to Section 610(f), "Indenture" shall mean, with respect to such series
of Securities for which any such Person is Trustee, this instrument as
originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series
of Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto
executed and delivered after such Person had become such Trustee but to which
such Person, as such Trustee, was not a party.
"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.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Material Subsidiary" means Holliday Fenoglio, Inc., AMRESCO
Management, Inc., AMRESCO Residential Mortgage Corporation, AMRESCO Advisors,
Inc., AMRESCO Residential Credit Corporation, AMRESCO Capital Corporation,
AMRESCO New England, Inc., Oak Cliff Financial, Inc. and any other Subsidiary
whose assets or revenues comprise at least five percent (5%) of the assets or
revenues of the Company and the Subsidiaries on a consolidated basis as of the
end of, or for the, Company's most recently completed fiscal quarter, as
determined from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President, the Chief Executive
Officer or a Vice President of the Company, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, that
complies with Section 314(e) of the Trust Indenture Act and is delivered to the
Trustee.
5
<PAGE> 13
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that complies with Section 314(e) of the Trust
Indenture Act.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
hereunder, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities or any portion thereof for whose payment
or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) any Security with respect to which the Company has
effected defeasance pursuant to clauses (1)(B)) and (3) of Section
401; and
(iv) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant hereto, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units that shall be
deemed to be Outstanding shall be the U.S. dollar equivalent, determined in the
manner provided as contemplated by Section 301 as of the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent, determined as of
the date of original issuance of such Security, of the amount determined as
provided in (i) above) of such Security as determined by the Company pursuant
to Section 301, and (iii) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or
6
<PAGE> 14
of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making
any such determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) and/or interest on any Securities on behalf
of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including without
limitation the rate or rates of interest (or formula for determining the rate
or rates of interest), if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, Corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and/or interest on the Securities of that series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Proceeding" has the meaning specified in Section 1302.
"Redemption Date", when used with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption pursuant
hereto.
"Redemption Price", when used with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed pursuant
hereto plus premium, if any, and accrued interest.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
7
<PAGE> 15
"Repurchase Date", when used with respect to any Security or portion
thereof to be repurchased, means the date fixed for such repurchase pursuant
hereto.
"Repurchase Price", when used with respect to any Security or portion
thereof to be repurchased, means the price at which it is to be repurchased
pursuant hereto plus premium, if any, and accrued interest.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee assigned by it to administer its corporate trust
matters.
"Securities" has the meaning stated in the first recital hereof and
more particularly means any Securities authenticated and delivered hereunder;
provided, however, that if at any time there is more than one Person acting as
Trustee hereunder, "Securities" with respect to this Indenture as to which such
Person is Trustee shall have the meaning stated in the first recital hereof and
shall more particularly mean Securities authenticated and delivered hereunder,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Securities Payment" has the meaning specified in Section 1302.
"Securitization Transaction" means a public or private transfer of
installment sales contracts, loans, leases or other receivables by which the
Company directly or indirectly securities a pool of specified installment sales
contracts, loans, leases or other receivables.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Agent" has the meaning specified in Section 1302.
"Senior Debt" means the principal amount of, and interest on and all
other amounts due on or in connection with (1) Funded Debt whether outstanding
on the date of execution hereof or thereafter created or incurred, unless it is
provided in the appropriate instrument that such Funded Debt is subordinated in
right of payment or in rights upon liquidation to any other Funded Debt and (2)
renewals, extensions and refundings of any such indebtedness.
"Senior Event of Default" has the meaning specified in Section 1303.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
8
<PAGE> 16
"Subordinated Debt" means all Funded Debt except Senior Debt.
"Subsidiary" means, with respect to any Person, (i) any Corporation of
which at the time of determination more than 50% of the shares of Voting Stock
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person (or a combination thereof)
and (ii) any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (b) the only
general partners of which are such Person or one or more Subsidiaries of such
Person (or any combination thereof).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph hereof until a successor Trustee shall have become such pursuant to
the applicable provisions hereof, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligations" means direct obligations of the United
States of America, or any Person controlled or supervised by and acting as an
agency or instrumentality of such government, in each case where the payment or
payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by such government and which are not callable or redeemable at the
option of the issuer or issuers thereof, and shall also include a depository
receipt issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or principal of
or other amount with respect to any such U.S. Government Obligation held by
such custodian for the account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the U.S. Government Obligation evidenced by such
depository receipt.
"Vice President", when used with respect to the Company, means any
vice president, whether or not designated by a number or a word or words added
before or after the title "vice president".
"Voting Stock", when used with respect to a Corporation, means stock
of the class or classes having general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of such Corporation (irrespective of whether at the time stock or
securities of any other class or classes shall have or might have voting power
by reason of the happening of any contingency).
9
<PAGE> 17
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision hereof, the Company shall furnish to the
Trustee, if so requested by the Trustee, an Officers' Certificate stating that
all conditions precedent, if any, provided for herein relating to the proposed
action have been complied with and, if so requested by the Trustee, an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for herein shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion whether such
covenant or condition has been complied with; and
(4) a statement whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate, opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel or
representation of counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
10
<PAGE> 18
an officer or officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous. Any
certificate or opinion of counsel may be stated to be based on the certificates
or opinions of other counsel, in which event it shall be accompanied by a copy
of such other certificates or opinions.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments hereunder or any Security, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided hereby to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders (including Persons who hold their
Securities through a Holder which is a Depositary) in person or by an agent
duly appointed in writing, and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose hereof and (subject to Section 601) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including
a Depositary that is a Holder of a Global Security, may make, give or take, by
a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted hereby to be made, given or taken by the Holders, and a Depositary
that is a Holder of a Global Security may provide its proxy or proxies to the
beneficial owners of interests in any such Global Security through such
Depositary's standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine, provided that, in any instance, the Trustee may require further
proof with respect to any matter referred to in this Section.
(c) The ownership, principal amount and serial numbers of
Securities held by any Person, and the date of commencement and the date of the
termination of holding the same, shall be proved conclusively by the Security
Register.
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<PAGE> 19
(d) The Company may fix any day as the record date for the purpose
of determining the Holders (including Persons who hold Securities through a
Holder which is a Depositary) of Securities of any series entitled to give or
take any request, demand, authorization, direction, notice, consent, waiver or
other action, or to vote on any action, authorized or permitted to be given or
taken by Holders of Securities of such series. If not set by the Company prior
to the first solicitation of a Holder of Securities of such series made by any
Person in respect of any such action, or, in the case of any such vote, prior
to such vote, the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or vote, as
the case may be. With regard to any record date for action to be taken by the
Holders (including Persons who hold Securities through a Holder which is a
Depositary) of one or more series of Securities, only the Holders of Securities
of such series on such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action.
With regard to any action that may be given or taken hereunder only by
Holders (including Persons who hold their Securities through a Holder which is
a Depositary) of a requisite principal amount of Outstanding Securities of any
series (or their duly appointed agents) and for which a record date is set
pursuant to this subsection (d), the Company may, at its option, set an
expiration date after which no such action purported to be given or taken by
any Holder shall be effective hereunder unless given or taken on or prior to
such expiration date by Holders (including Persons who hold Securities through
a Holder which is a Depositary) of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
subsection (d), the Company may, on one or more occasions at its option, extend
such date to any later date. Nothing in this subsection (d) shall prevent any
Holder (or any duly appointed agent thereof, from giving or taking, after any
expiration date, any action identical to, or, at any time, contrary to or
different from any action given or taken, or purported to have been given and
taken, hereunder by a Holder on or prior to such date, in which event the
Company may set a record date in respect hereof pursuant to this subsection
(d).
Notwithstanding the foregoing, upon receipt by the Trustee, with
respect to Securities of any series, of (i) any Notice of Default pursuant to
Section 501, (ii) any declaration or acceleration, or any rescission and
annulment of any such declaration, pursuant to Section 502, or (iii) any
direction given pursuant to Section 512 (any such notice, declaration,
rescission and annulment, or direction being referred to herein as a
"Direction"), a record date shall automatically and without any other action by
any Person be set for the purpose of determining the Holders (including Persons
who hold Securities through a Holder which is a Depositary) of Outstanding
Securities of such series entitled to join in such Direction, which record date
shall be the close of business on the day the Trustee receives such Direction.
The Holders (including Persons who hold Securities through a Holder which is a
Depositary) of Outstanding Securities of such series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to join
in such Direction, whether or not such Holders remain Holders after such record
date; provided that, unless such Direction shall have become effective by
virtue of Holders (including Persons who hold Securities through a Holder which
is a Depositary) of the requisite principal amount of Outstanding Securities of
such series on
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such record date (or their duly appointed agents) having joined therein on or
prior to the 90th day after such record date, such Direction shall
automatically and without any action by any Person be canceled and be of no
further effect. Nothing in this paragraph shall prevent a Holder (or duly
appointed agent thereof) from giving, before or after the expiration of such
90-day period, a Direction contrary to or different from, or, after the
expiration of such period, identical to, a Direction that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date in respect thereof shall be set pursuant to this subsection (d).
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted hereby to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to
or with a Responsible Officer of the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, or sent by facsimile and U.S. mail, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
(Attention: Chief Financial Officer) or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder
(including Persons who hold Securities through a Holder which is a Depositary
if the name and address of such beneficial holder has been provided in writing
to the Person required to give such notice prior to the date such notice is
given) affected by such event, at such Holder's address as it appears in the
Security Register or as provided in writing by the Depositary, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Any notice mailed to the Holder in the
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manner herein prescribed shall be conclusively deemed to have been received by
such Holder three days after deposit with the U.S. Mail, whether or not such
Holder actually receives such notice. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made by or with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted hereunder shall be in the English
language.
SECTION 107. Compliance with Trust Indenture Act.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act that are required to be part hereof. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the provision of the Trust Indenture Act shall control. If any
provision hereof modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply hereto as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements herein by the Company or the Trustee
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision herein or in the Securities shall be invalid,
illegal or unenforceable, either wholly or partially, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, and such provisions shall be given effect to the fullest
extent permitted by law.
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SECTION 111. Benefits of Indenture.
Nothing herein or in the Securities, express or implied, shall give to
any Person, other than the parties hereto, any Authenticating Agent, any Paying
Agent, any Securities Registrar, and their successors hereunder and the Holders
(including Persons who hold Securities through a Holder which is a Depositary),
any benefit or any legal or equitable right, remedy or claim hereunder.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of Texas.
SECTION 113. Legal Holidays.
Except as may be otherwise specified with respect to any particular
Securities, in any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision hereof or of the Securities)
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series, including Global Securities
representing Securities of such series, shall be in the form established,
without the approval of any Holders or the Trustee, by or pursuant to a Board
Resolution in accordance with Section 301 or by one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted hereby, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
The definitive Securities may be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
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The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein and
issued pursuant to the within-mentioned Indenture.
BANK ONE, COLUMBUS, N.A., as
Trustee
By
--------------------------------------
Authorized Signature
SECTION 203. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall, in
addition to the provisions established by or pursuant to a Board Resolution or
in one or more indentures supplemental hereto in accordance with Section 201,
bear a legend in substantially the following form or such similar form as may
be required by the Depositary:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New
York, New York) to the issuer or to its agent for registration of
transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein."
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered hereunder is unlimited.
The Securities may be issued in one or more series. There shall be
established, without the approval of any Holders or the Trustee, by or pursuant
to authority granted by one or more Board Resolutions, and, subject to Section
303, there shall be set forth in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, all or any of the following, as applicable:
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(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of any
other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
hereunder (except for Securities authenticated and delivered upon
registration of transfer of, or in lieu of, other Securities of the
series pursuant to Sections 304, 305, 306, 906 or 1107 and except for
any Securities which, pursuant to Section 303, are deemed never to
have been authenticated and delivered hereunder) and the absence of
such limitation shall mean that the Company may issue from time to
time additional securities of such series without limitation as to
aggregate principal amount;
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates, or the method by which such date
or dates are determined or extended, on which the principal or
installments of principal and premium, if any, of the Securities of
the series is or are payable;
(5) the rate or rates (which may be fixed or variable) at
which the Securities of the series shall bear interest, if any, or the
method by which such rate or rates shall be determined, the date or
dates from which such interest shall accrue, the Interest Payment
Dates on which such interest shall be payable, the Regular Record Date
for the interest payable on any Interest Payment Date and the
circumstances, if any in which the Company may defer interest payments
and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(6) the place or places, if any, where the principal of
(and premium, if any) and interest on Securities of the series shall
be payable, any Securities of the series may be surrendered for
registration of transfer or exchange and notices and demands to or
upon the Company with respect to the Securities of the series and this
Indenture may be served, other than or in addition to the Corporate
Trust Office of the Trustee;
(7) if applicable, 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;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
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(9) whether the Securities of the series will be
convertible into shares of capital stock and/or exchangeable for other
securities, and if so, the terms and conditions upon which such
Securities will be so convertible or exchangeable, and any deletions
from or modifications or additions hereto to permit or to facilitate
the issuance of such convertible or exchangeable Securities or the
administration thereof;
(10) the identity of each Security Registrar and Paying
Agent, if other than or in addition to the Trustee;
(11) if the amount of principal of, or any premium or
interest on, any Securities of the series may be determined by
reference to an index or pursuant to a formula, the manner in which
such amounts shall be determined;
(12) the applicability of, and any addition to or change
in, the covenants and definitions currently set forth herein;
(13) if other than denominations of $1,000 or any amount
in excess thereof which is an integral multiple of $1,000, the
denominations in which Securities of the series shall be issuable;
(14) if other than the currency of the United States of
America, the currency, currencies, currency units or composite
currencies in which payment of the principal of and any premium and
interest on any Securities of the series shall be payable and the
manner of determining the U.S. dollar equivalent of the principal
amount thereof for purposes of the definition of "Outstanding" in
Section 101, and, if the principal of or any premium or interest on
any Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to
be payable, the currency, currencies or currency units in which
payment of the principal of and any premium and interest on Securities
of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(15) any other event or events of default applicable with
respect to Securities of the series in addition to or in lieu of those
provided in Section 501 and any change in the right of the Trustee or
the Holders to declare the principal of or any premium or interest on
such Securities due and payable;
(16) if less 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 502;
(17) whether the Securities of the series shall be issued
in whole or in part in the form of one or more Global Securities and,
if so, (a) the Depositary with respect to such
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Global Security or Securities and (b) the circumstances under which
any such Global Security may be exchanged for Securities registered in
the name of, and any transfer of such Global Security may be
registered to, a Person other than such Depositary or its nominee, if
other than as set forth in Section 305;
(18) if applicable, that the Securities of the series, in
whole or any specified part, shall not be defeasible pursuant to
Section 403 and, if other than by a Company Order, the manner in which
any election by the Company to defease such Securities shall be
evidenced;
(19) the extent of any subordination to other indebtedness
of the Company; and
(20) any other terms of the series (which terms shall not
be inconsistent with the provisions hereof, except as permitted by
Section 901(5)).
All Securities of any one series (other than Securities offered in a
Periodic Offering) shall be substantially identical except as to denomination
and except as may otherwise be provided by or pursuant to the Board Resolution
referred to above and, subject to Section 303, set forth, or determined in the
manner provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time. Unless otherwise provided, Securities of a single
series may have different terms, and a series may be reopened, without the
consent of the Holders of Securities of such series, for issuance of additional
Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
With respect to Securities of a series offered in a Periodic Offering,
such Board Resolution and Officers' Certificate or supplemental indenture may
provide general terms or parameters for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with other procedures specified in a
Company Order as contemplated by the third paragraph of Section 303.
SECTION 302. Denominations.
Unless otherwise provided in the applicable Officers' Certificate or
supplemental indenture, the Securities of each series shall be issued in
registered form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 or any amount in excess thereof which is an
integral multiple of $1,000.
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SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairman of the Board, its President,
its Chief Executive Officer, its Chief Operating Officer, its Chief Financial
Officer, its Treasurer or one of its Vice Presidents, and under its corporate
seal affixed thereto or reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
hereof, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, or, in the case of
Securities offered in a Periodic Offering, from time to time in accordance with
such other procedures (including, without limitation, the receipt by the
Trustee of electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing by the Company) acceptable to the Trustee
as may be specified from time to time by a Company Order for establishing the
specific terms of particular Securities being so offered, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or forms or terms of the Securities of the series have
been established by or pursuant to one or more Board Resolutions as permitted
by Sections 201 and 301, in authenticating such Securities and accepting the
additional responsibilities hereunder in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon
(a) an Opinion of Counsel stating:
(1) that the form or forms of such Securities have been
established in conformity with the provisions hereof;
(2) that the terms of such Securities have been
established in conformity with the provisions hereof;
(3) that authentication and delivery of such Securities
and the execution and delivery of the supplemental indenture, if any,
by the Trustee will not violate the terms hereof;
(4) that the Company has the corporate power to issue,
and has duly authorized, such Securities;
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(5) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms,
subject to bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles, provided that such Opinion of
Counsel need not express an opinion as to whether a court in the
United States would render a money judgment in a currency other than
that of the United States; and
(6) that the issuance of such Securities will not
contravene the certificate of incorporation or bylaws of the Company
or result in any violation of any of the terms or provisions of any
law or regulation or of any indenture, mortgage or other agreement
known to such Counsel by which the Company or its assets is bound, the
violation of which would have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(b) an executed supplemental indenture, if any;
(c) a copy of a Board Resolution; and
(d) an Officers' Certificate;
provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of each form of
Securities of such series and that the opinions described in clauses (a)(2) and
(a)(5) above may state, respectively, that
(2) if the terms of such Securities are to be established
pursuant to a Company Order or pursuant to such procedures as may be
specified from time to time by a Company Order, all as contemplated by
a Board Resolution or action taken pursuant thereto, such terms will
have been duly authorized by the Company and established in conformity
with the provisions hereof; and
(5) that such Securities, when executed by the Company,
completed, authenticated and delivered by the Trustee in accordance
herewith, and issued and delivered by the Company and paid for, all in
accordance with any agreement of the Company relating to the offering,
issuance and sale of such Securities, will be duly issued hereunder
and will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting generally the enforcement of creditors'
rights and to general principles of equity.
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With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely conclusively, as to the authorization by the Company of
any of such Securities, the form or forms and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel, Company Order and other documents delivered pursuant to Sections 201
and 301 and this Section, as applicable, in connection with the first
authentication of a form of Securities of such series and it shall not be
necessary for the Company to deliver such Opinion of Counsel and other
documents (except as may be required by the specified other procedures, if any,
referred to above) at or prior to the time of authentication of each Security
of such series unless and until the Trustee receives actual notice that such
Opinion of Counsel or other documents have been superseded or revoked, and may
assume compliance with any conditions specified in such Opinion of Counsel
(other than any conditions to be performed by the Trustee). If such form or
forms or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant hereto
will 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.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit hereunder or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits hereof.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes hereof such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers of the Company executing such Securities may
determine, as conclusively evidenced by their execution of such Securities. In
the case of Securities of any series, such temporary Securities may be in the
form of Global Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive
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Securities of such series, the temporary Securities of such series shall be
exchangeable, subject to Section 305, for definitive Securities of like tenor
of such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series and of like tenor and of any
authorized denominations. Unless otherwise provided in or pursuant hereto,
until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits hereunder as definitive Securities of such
series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange; Paying
Agent and Place of Payment.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" of each series of Securities for the
purpose of registering Securities and transfers of Securities as herein
provided at the Corporate Trust Office.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in any Place of Payment for such
series, the Company shall execute and the Trustee shall authenticate and
deliver (in the name of the designated transferee or transferees) one or more
new Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor and bearing a number not
contemporaneously outstanding.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities
to be exchanged at the office or agency of the Company in any Place of Payment
for such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitled to the same benefits hereunder as the Securities surrendered
upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or such Holder's attorney duly authorized in writing, said
authorization to accompany such presentment or surrender.
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No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company may but shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 calendar days before the day of the mailing of a
notice of redemption of Securities of that series selected for redemption under
Section 1103 and ending at the close of business on the day of such mailing,
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to register the transfer of or exchange any
certificated Securities during a period beginning five days before the date of
Maturity with respect to such Security and ending on such date of Maturity.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the name of, and no transfer
of a Global Security of any series may be registered to, any Person other than
the Depositary for such Security or its nominee, unless (i) such Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or the Company determines that the Depositary is
unable to continue as Depositary and the Company thereafter fails to appoint a
successor Depositary, (ii) the Company provides for such exchange or
registration of transfer pursuant to Section 301, (iii) the Company executes
and delivers to the Trustee a Company Order that such Global Security shall be
so exchangeable and the transfer thereof so registrable or (iv) there shall
have occurred and be continuing an Event of Default with respect to the
Securities of such series which entitles the Holders of such Securities to
accelerate the maturity thereof. Upon the occurrence in respect of any Global
Security of any series of any one or more of the conditions specified in
clauses (i), (ii), (iii) or (iv) of the preceding sentence or such other
conditions as may be specified as contemplated by Section 301 for such series,
such Global Security may be exchanged for certificated Securities not bearing
the legend specified in Section 203 and registered in the names of such Persons
as may be specified by the Depositary (including Persons other than the
Depositary or its nominees).
Notwithstanding any other provision hereof, a Global Security may not
be transferred except as a whole by the Depositary for such Global Security to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary.
The Company shall maintain an office or agency where Securities of any
series may be presented for payment ("Paying Agent"). The Company may appoint
one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Paying Agent, the Trustee shall
act as such. The Company or any of its Subsidiaries may act as Paying Agent.
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The Company initially appoints the Trustee to act as Paying Agent with
respect to the Securities. The Corporate Trust Office of the Trustee shall
initially be deemed a Place of Payment. The Company may designate in a Company
Order additional Places of Payment for Securities of any series.
The Company shall require each Paying Agent, including the Trustee
(who shall be deemed to have agreed by its execution of this Indenture), to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee (unless the Paying Agent is the Trustee, in which case
it shall hold in trust for the Holders) all money held by the Paying Agent for
the payment of principal, premium, if any, or interest, on the Securities, and
shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying Agent.
Upon any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as sole Paying Agent for the Securities.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security, including a Global Security, is surrendered
to the Trustee or the Company, together with such security, bond or indemnity
as may be required by the Trustee or the Company to save each of them and any
agent of either of them harmless, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a new Security, including a
new Global Security if the mutilated Security was a Global Security, of the
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, including a Global Security if the destroyed, lost or stolen Security
was a Global Security, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless, then, in
the absence of actual notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser (or any equivalent person under any
applicable statute, rule or regulation or interpretation then in effect), the
Company shall execute and upon its written request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security, including a Global Security if the destroyed, lost or
stolen Security was a Global Security, of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee), if any, connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder. A new
Security shall have such legends as appeared on the destroyed, lost or stolen
Security unless the Company determines otherwise.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered in the Security Register at the close of business on
the Regular Record Date for such Interest Payment Date.
Any interest on any Security of any series which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when so deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days
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after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such
series at such Holder's address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on any Security may be paid (i)
by mailing a check to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer to an
account maintained by the Person entitled thereto as specified in the Security
Register, the cost of such wire transfer to be borne by the Company.
Subject to the foregoing provisions of this Section, each Security
delivered hereunder upon registration of transfer of, or in exchange for, or in
lieu of, any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer or
exchange, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered in the Security
Register as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest on such Security and for all other purposes whatsoever, whether or not
any payment with respect to such Security shall be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary (or its nominees) shall have any rights hereunder
with respect to such Global Security or any Security represented thereby, and
such Depositary may be treated by the Company, the Trustee, and any agent of
the Company or the Trustee as the owner of such Global Security or any Security
represented thereby for all purposes whatsoever. Notwithstanding the
foregoing, with respect to any
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Global Security, nothing herein shall prevent the Company, the Trustee, or any
agent of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by a Depositary as Holder
of such Global Security, or impair, as between a Depositary and the owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominees) as Holder of such Global Security. None of the Company, the Trustee
or any Paying Agent will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted hereby. The Trustee is hereby
directed by the Company to destroy the canceled Securities held by the Trustee,
and the Trustee shall provide the Company with a certificate of a Responsible
Officer certifying as to the destruction of such Securities.
SECTION 310. Computation of Interest.
Except as otherwise specified pursuant to Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months and no interest will accrue
with respect to the 31st day of any month. Interest shall be payable through
and excluding any Interest Payment Date and interest shall be payable through
and including any Redemption Date or other principal payment date.
SECTION 311. Maximum Interest Rate.
Regardless of any provision contained in any Security or this
Indenture, no Holder shall be entitled to receive, collect or apply as interest
on any Security any amount in excess of the maximum rate permitted by
applicable law, and, in the event that any Holder ever receives, collects, or
applies as interest any such excess, the amount that would be excessive
interest shall be deemed to be a partial prepayment of principal and treated
hereunder as such; and, if the principal amount of any Security is paid in
full, any remaining excess shall forthwith be paid to the Company.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities specified in a
Company Request (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for), and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge hereof, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount of money (in the
currency in which such Securities are payable) and/or (if such
Securities are payable in U.S. dollars) U.S. Government
Obligations which through the payment of interest and
principal in accordance with their terms, without
consideration of any reinvestment thereof, will provide not
later than the opening of business on the due dates of any
payment of principal (and premium, if any) and interest with
respect thereto, or a combination thereof, in an amount
sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
to the date of such
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deposit (in the case of Securities which have become due and
payable) or to the respective Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company, and
(3) the Company has delivered to the Trustee a
certificate of a nationally-recognized firm of certified public
accountants certifying as to the sufficiency of the amounts deposited
pursuant to subclause (B) of clause (1) of this Section for payment of
the principal (and premium, if any) and interest on the dates such
payments are due, and an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture with
respect to the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series of Securities, the obligations of the Company and the
Trustee to the Holders of Securities of other series not so satisfied and
discharged, the obligations of the Company to the Trustee under Section 607,
the obligations of the Trustee to any Authenticating Agent under Section 614,
and, if money and/or U.S. Government Obligations shall have been deposited with
the Trustee pursuant to Subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003, shall survive.
SECTION 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
and/or U.S. Government Obligations deposited with the Trustee pursuant to
Section 401 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities of
each series and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has or U.S.
Government Obligations have been deposited with or received by the Trustee; but
such money and/or U.S. Government Obligations need not be segregated from other
funds of the Trustee except to the extent required by law.
SECTION 403. Defeasance and Discharge of Indenture.
If principal of and any premium and interest on Securities of any
series are denominated and payable in U.S. Dollars, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the
Outstanding Securities of such series on the 91st day after the date of the
deposit referred to in subparagraph (d) of this Section, and the provisions
hereof, as it relates to such Outstanding Securities, shall no longer be in
effect (and the Trustee, at the request and expense of the Company, shall
execute proper instruments acknowledging the same), except as to:
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(a) the rights of Holders of Securities of such series to
receive, from the trust funds described in subparagraph (d) of this
Section, (i) payment of the principal of (and premium, if any) or
interest on the Outstanding Securities of such series on the Stated
Maturity of such principal or installment of principal or interest and
(ii) the benefit of any mandatory sinking fund payments applicable to
the Securities of such series on the day on which such payments are
due and payable in accordance with the terms hereof and such
Securities;
(b) the Company's obligations with respect to such
Securities under Sections 305, 306, 1002 and 1003; and
(c) the rights, powers, trusts, duties and immunities of
the Trustee hereunder;
provided that, the following conditions shall have been satisfied:
(d) The Company has deposited or caused to be irrevocably
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609) as trust funds in the trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (i) U.S. Dollars in an
amount, or (ii) U.S. Government Obligations which through the payment
of interest and principal in respect thereof in accordance with their
terms will provide not later than one day before the due date of any
payment referred to in clause (A) or (B) of this subparagraph (d) U.S.
Dollars in an amount or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge (A) the principal of
(and premium, if any) and each installment of principal of (and
premium, if any) and interest on the Outstanding Securities of such
series on the Stated Maturity of such principal or installment of
principal and interest and (B) any mandatory sinking fund or analogous
payments applicable to the Securities of such series on the day on
which such payments are due and payable in accordance with the terms
hereof and of such Securities;
(e) such deposit shall not cause the Trustee with respect
to the Securities of such series to have a conflicting interest as
defined in Section 608 and for purposes of the Trust Indenture Act
with respect to such Securities;
(f) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it
is bound;
(g) such provision would not cause any Outstanding
Securities of such series then listed on the New York Stock Exchange
or other securities exchange to be delisted as a result thereof;
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(h) no Event of Default or event which with notice or
lapse of time would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after
such date;
(i) the Company has delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax
purposes as a result of such deposits, defeasance and discharge and
will be subject to federal income tax on the same amount and in the
same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(j) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the defeasance contemplated by this
Section have been complied with.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, and unless otherwise provided with respect to Securities of any
series pursuant to Section 301, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any
Security of such series when it becomes due and payable, and
continuance of such default for a period of 30 consecutive days (for
Securities of any series the interest on which is payable less
frequently than monthly) or for a period of 10 consecutive days (for
Securities of any series the interest on which is payable monthly);
(2) default in the payment of the principal of (or
premium, if any, on) any Security of such series when due and payable;
(3) default in the deposit of any sinking fund payment in
respect of any Security of such series, when and as due by the terms
of a Security of such series;
(4) default in the performance, or breach, of any
covenant or warranty of the Company herein or the Securities of such
series (other than a covenant or warranty a default in the performance
or breach of which is elsewhere in this Section specifically dealt
with or which has expressly been included herein solely for the
benefit of a series of one or more
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Securities other than such series), and continuance of such default or
breach for a period of 30 consecutive days after written notice
thereof has been received by the Company from the Trustee or by the
Company and the Trustee from the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of such series,
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(5) the occurrence of an event of default, as defined in
any indenture or instrument under which the Company or any Material
Subsidiary shall have Outstanding at least $1,000,000 aggregate
principal amount of indebtedness, shall happen and be continuing and
such indebtedness shall, as a result thereof, have been accelerated
(or comparable event shall have occurred) so that the same shall have
become due and payable prior to the date on which the same would
otherwise have become due and payable and such acceleration has been
in effect without rescission or annulment for a period of 30
consecutive days; provided, however, that if such event of default
under such indenture or instrument shall be remedied or cured by the
Company or waived by the holders of such indebtedness, or if such
acceleration under such indenture or instrument shall have been
rescinded or annulled by the holders of such indebtedness, then,
unless the Securities of such series shall have been accelerated as
provided herein, the Event of Default hereunder by reason thereof
shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee or
any Holders of the Securities of any series;
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
or any Material Subsidiary in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization
or other similar law or (B) a decree or order adjudging the Company or
any Material Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any
Material Subsidiary under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Material
Subsidiary or of any substantial part of the property of the Company
or any Material Subsidiary, or ordering the winding up or liquidation
of the affairs of the Company or any Material Subsidiary, and in the
case of either clause (A) or clause (B) the continuance of any such
decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days;
(7) the commencement by the Company or any Material
Subsidiary of a voluntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company or any Material
Subsidiary to the entry of a decree or order for relief in respect of
the Company or any Material Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency
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case or proceeding against the Company or any Material Subsidiary, or
the filing by the Company or any Material Subsidiary of a petition or
answer or consent seeking reorganization or relief under any
applicable federal or state law, or the consent by the Company or any
Material Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Material Subsidiary or of any substantial part
of the property of the Company or any Material Subsidiary, or the
making by the Company or any Material Subsidiary of an assignment for
the benefit of creditors, or the admission by the Company or any
Material Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company or any Material Subsidiary in furtherance of any such action;
(8) a final judgment, judicial decree or order for the
payment of money in excess of $5,000,000 shall be rendered against the
Company or any Material Subsidiary, and such judgment, decree or order
shall have remained unpaid, unvacated, unbonded or unstayed for a
period of 30 consecutive days; or
(9) any other Event of Default provided with respect to
Securities of such series pursuant to Section 301.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Outstanding Securities of any
series occurs and is continuing, then and in every such case the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series may declare the principal amount (or, if any of the
Securities of such series are Original Issue Discount Securities, such lesser
portion of the principal amount of such Securities as may be specified in the
terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
portion thereof) shall become immediately due and payable; provided that in the
case of an Event of Default described in Section 501(6) or (7), the principal
amount of all Securities (or specified portion thereof) shall become due and
payable immediately, without any notice to the Company or the Trustee.
Upon payment of such principal amount (and premium, if any), such
interest and interest on overdue principal and overdue interest to the extent
prescribed therefor in the Securities of such series (to the extent payment of
such interest is legally enforceable), all of the Company's obligations in
respect of the payment of principal and interest on the Securities of such
series shall terminate.
At any time after such a declaration of acceleration with respect to
Outstanding Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in aggregate
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principal amount of the Outstanding Securities of such series, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of
such series,
(B) the principal of (and premium, if any, on)
any Securities of such series which have become due otherwise
than by such declaration of acceleration and interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
607; and
(2) all Events of Default with respect to Securities of
such series, other than the non-payment of the principal of Securities
of such series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security of any series when such interest becomes due and payable and
such default continues for a period of 30 consecutive days (for
Securities of any series the interest on which is payable less
frequently than monthly) or for a period of 10 days (for Securities of
any series the interest on which is payable monthly), or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security of any series at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Security, the whole amount then due and payable on such
Security for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest at the rate
or rates prescribed therefor in such Security, and, in addition thereto such
further amount as shall be
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sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay the money it is required to pay the
Trustee pursuant to the preceding paragraph forthwith upon the demand of the
Trustee, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the money so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
and collect the money adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement herein or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy.
The rights and remedies under this Section 503 are in addition to the
other rights and remedies available under this Article 5 or otherwise legally
available.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of any series or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) or such portion of the principal
amount of any series of Original Issue Discount Securities as may be
specified in the terms of such series and interest owing and unpaid in
respect of the Securities of such series and to file such other papers
or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under
Section 607) and of the Holders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
of any series or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims hereunder or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and for any
other amounts due the Trustee under Section 607, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee with respect to any series of
Securities pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities of such series and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities of
such series in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect hereto, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have furnished to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee, for 60 days after its receipt of such
notice, request and furnishing of indemnity, has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
hereof to affect, disturb or prejudice the rights of any other of such Holders,
or to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right hereunder, except in the manner herein provided
and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision herein, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive payment
of the principal of (and premium, if any) and (subject to Section 307) interest
on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date, or, in the
case of a repurchase right at the option of the Holder, if any, on the
repurchase date specified pursuant to Section 301) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy hereunder and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of Securities of
any series to exercise any right or remedy accruing upon any Event of Default
with respect to such series shall impair any such right or remedy or constitute
a waiver of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(3) subject to Section 601, the Trustee need not take any
action which might be unjustly prejudicial to the rights of the other
Holders of Securities not joining in such action.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series may, on behalf of the Holders of
all the Securities of such series, waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on any Security of such series when due (other than
amounts due and payable solely upon acceleration pursuant to Section
502), unless theretofore paid in full and cured in accordance with the
terms hereof, or
(2) in respect of a covenant or provision hereof which
under Section 902 cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose hereof; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties hereto agree, and each Holder of any Security by such
Holder's acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy hereunder, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 25% in principal amount of the Outstanding Securities of the affected
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date or, in the case of a
repurchase right at the option of the Holder, if any, on the repurchase date
specified pursuant to Section 301).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance hereof; and the Company (to the extent that it may lawfully
do so)
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hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) With respect to Securities of any series, except during the
continuance of an Event of Default with respect to that series only,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
hereof; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements hereof.
(b) With respect to Securities of any series, in case an Event of
Default has occurred and is continuing with respect to that series only, the
Trustee shall exercise such of the rights and powers vested in it hereby, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(c) No provision hereof shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith with respect
to any series of Securities in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding
Securities of such series, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
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under this Indenture with respect to said Securities, provided such
direction shall not be in conflict with any rule of law or with this
Indenture; and
(4) no provision hereof shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision
hereof relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Event of Default hereunder
with respect to the Securities of any series, the Trustee shall transmit by
mail to all Holders of Securities of such series, as their names and addresses
appear in the Security Register, notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided however,
that, except in the case of a default in the payment of the principal of (or
premium, if any) or interest on any Security of such series or in the payment
of any sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities of
such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 and Sections 315(a) through
315(d) of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of Indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order or as otherwise expressly
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provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration hereof the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate
or Opinion of Counsel;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it hereby at the request or
direction of any of the Holders of Securities of any series pursuant
hereto, unless such Holders shall have furnished the Trustee
reasonable security or indemnity against the costs, fees, expenses and
liabilities which might be incurred by it, including reasonable fees
of counsel, in complying with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, coupon, note, other
evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine, during business hours and upon reasonable notice,
the books, records and premises of the Company pertaining to the
Securities, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon
it hereby.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities of each series,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency hereof or of the Securities
of any series, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture and
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any supplemental indenture, to authenticate such Securities and to perform its
obligations hereunder and such Securities. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company of
Securities of any series or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law and shall be held
uninvested. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
(a) The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision hereof (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to the Trustee's negligence, bad faith or willful
misconduct; and
(3) to indemnify the Trustee and its agents for, and to
hold them harmless against, any loss, liability or expense incurred
without negligence, bad faith or willful misconduct on its part,
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties
hereunder.
(b) As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of and interest
on the
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Securities of any series. "Trustee" for the purposes of this Section includes
any predecessor Trustee, but negligence, bad faith or willful misconduct of any
Trustee shall not be attributable to any other Trustee.
(c) When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or (7), the
expenses and the compensation for such services are intended to constitute
expenses of administration under any bankruptcy law.
SECTION 608. Disqualification; Conflicting Interests.
The provisions of TIA Section 310(b) shall apply to the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act under TIA Section 310(a)(1) and which shall have, or whose
parent shall have, a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal, state or District of Columbia
authority. If such Corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. Neither the
Company, nor any Person directly or indirectly controlling, controlled by or
under common control with the Company, shall act as Trustee hereunder.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company specifying its intention to resign, the applicable series affected by
such resignation, the reason therefor and the date upon which such resignation
shall become effective. Notwithstanding the foregoing, unless the reason for
such resignation is a conflict pursuant to Section 608, the Trustee must resign
with respect to all Securities if the Trustee resigns with respect to any
series of Securities. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) The Trustee may be removed with respect to any or all series
of Securities at any time upon 30 days notice by filing with it an instrument
in writing signed on behalf of the Company by a duly authorized officer of the
Company specifying such removal and the date on which it is to become
effective.
(e) If at any time:
(1) the Trustee shall fail to comply with Section 310(b)
of the TIA after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months,
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to any one or more series of Securities or all Securities
or (ii), subject to Section 514, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to such series of Securities and the
appointment of a successor Trustee or Trustees.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed
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by the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, then any Holder who has been
a bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names and addresses appear
in the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties hereunder of the retiring Trustee; but, on
the request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) 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 each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each 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, each 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 hereof as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such
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supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
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; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates. Whenever there is a successor
Trustee with respect to one or more (but less than all) series of securities
issued pursuant hereto, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities;
in case any of the Securities shall not have been authenticated by the Trustee
then in office, any successor by merger, conversion or consolidation to such
Trustee may authenticate such Securities either in the name of such predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities
or in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
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SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a). A Trustee which has
resigned or been removed is subject to TIA Section 311(a) to the extent
indicated therein.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee,
with the concurrence of the Company, may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series, and Securities so authenticated shall be entitled to the benefits
hereof and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made herein to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a Corporation organized and doing business
under the laws of the United States of America, any state thereof or the
District of Columbia authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal, state or District of Columbia
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first class mail, postage prepaid, to
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all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to reimbursement for such payments subject to Section
607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein and
issued pursuant to the within-mentioned Indenture.
----------------------------------------
as Trustee
By
--------------------------------------
Authorized Signature
----------------------------------------
as Authenticating Agent
By
--------------------------------------
Authorized Signature
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of such series of
Securities received by the Trustee in its capacity as Security Registrar.
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(b) The rights of Holders of any series of Securities to
communicate with other Holders of such series with respect to their rights
hereunder or under such Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided by TIA Section 312(b).
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 312 of the TIA, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the TIA.
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders of Securities of all series as
provided in TIA Section 313(c) a brief report dated as of such May 15 if
required by TIA Section 313(a). The Trustee shall transmit the reports
required by TIA Section 313(b). Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by TIA Sections 313(c)
and (d). A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any series of Securities is listed on any stock
exchange.
SECTION 703. Reports by Company.
The Company, pursuant to TIA Section 314(a), shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations; provided that notwithstanding the requirements of such rules and
regulations, so long as any Security is Outstanding the Company shall file with
the Trustee at a minimum (a) as soon as practicable, but in any event no more
than ninety (90) days, after the end of each fiscal year, copies of a balance
sheet and statements of income and retained earnings of the Company as of the
end of and for such fiscal year, audited by a nationally recognized firm of
independent certified public accountants, and (b) as soon as practicable, but
in any event no more than forty-five (45) days, after
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the end of each quarterly fiscal period, except for the last quarterly fiscal
period in each fiscal year, a summary statement (which need not be audited) of
income and retained earnings of the Company for such period;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants hereof as may be required from time
to time by such rules and regulations;
(3) transmit by mail to all Holders of all series of Securities,
as their names and addresses appear in the Security Register, such summaries of
any information, documents and reports as may be required by rules and
regulations prescribed from time to time by the Commission; provided that
notwithstanding the requirements of such rules and regulations, so long as any
Security is Outstanding the Company shall transmit to the Holders of
Securities, within thirty (30) days after the filing thereof with the Trustee,
in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, the information, documents and other reports required to be
filed by the Company pursuant to paragraph (1) of this Section; provided
further that in lieu of any Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, the Company may transmit an annual or quarterly report,
respectively, containing financial statements and an undertaking to transmit
such Form 10-K ro Form 10-Q, as the case may be, to any Holder upon request;
and
(4) furnish to the Trustee the Officers' Certificates required by
Section 1010.
The Trustee has no duty to review the financial or other reports
described in paragraphs (1) and (2) of this Section for purposes of determining
compliance with this or any other provision hereof.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person unless:
(1) the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a Corporation, partnership or
trust, shall be organized and validly existing under the laws of the
United States of America, any state thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium,
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if any) and interest on all the Securities and the performance or
observance of every covenant hereof on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have occurred and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
For purposes of this Section and Section 802, a conveyance, transfer, sale or
lease of the properties and assets of the Company "substantially as an
entirety" shall mean a conveyance, transfer or lease of properties and assets
of the Company representing 80% or more of the fair value (as determined in
good faith by the Board of Directors) of all the Company's properties and
assets on the date of such conveyance, transfer, sale or lease.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger by the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety to any Person in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company hereunder with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease to another person, the predecessor Person shall be
released from all obligations and covenants hereunder and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities;
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(2) 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 one or more specified series) or to
surrender any right or power herein conferred upon the Company;
(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series);
(4) to add to or change any of the provisions hereof to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities of any series in certificated or
uncertificated form;
(5) to add to, change or eliminate any of the provisions
hereof in respect of one or more series of Securities, provided that
any, such addition, change or elimination (i) shall neither (A) apply
to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with
respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding;
(6) to secure the Securities of any series, provided that
such security does not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 608 and for purposes of the TIA with respect to the Securities
of any series;
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301;
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions hereof as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity or defect in or to correct or
supplement any provision herein which may be defective or inconsistent
with any other provision herein or any Security of any series, or to
make any other provisions with respect to matters or questions arising
hereunder, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
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SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of each series at the time
Outstanding affected by such supplemental indenture (voting as one class), by
Act of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions hereof or of
modifying in any manner the rights of the Holders of Securities of each series
hereunder; provided however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any such affected
Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof,
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which,
any such Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or any
repayment date),
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any modifications or amendments hereto with respect to
such series or to the terms and conditions of such series or to
approve a supplemental indenture with respect to such series, or the
consent of whose Holders is required for any waiver with respect to
such series of compliance with certain provisions hereof or certain
defaults hereunder and their consequences provided for herein, or
(3) modify any of the provisions of this Section 902,
Section 513 or 1011, except to increase any such percentage or to
provide that certain other provisions hereof cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section 902 and Section 1009, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision hereof which has expressly been included solely for the benefit of
one or more particular series of Securities, or which modifies the rights of
the Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights hereunder of the Holders of
Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created hereby, the Trustee shall be entitled to receive, and
(subject to Section 601 hereof) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted hereby. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities hereunder or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part hereof for all purposes; and every Holder of
Securities of the series affected thereby theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby to the extent
provided therein.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in a form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provision of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security so
affected, pursuant to Section 106, setting forth in general terms the substance
of such supplemental indenture.
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SECTION 908. Supplemental Indentures With Consent of Holders of Senior
Debt.
Without the consent of the holders of all Senior Debt affected
thereby, the Company and the Trustee shall not have the power to enter into an
indenture or indentures supplemental hereto for the purpose of amending or
modifying the definition of "Senior Debt" herein in a manner adverse to the
holders of such affected Senior Debt.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of such series in accordance with the
terms of such Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of such series may be presented
or surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such series and this Indenture
may be served. The Company hereby initially designates the Corporate Trust
Office of the Trustee as its office or agency for each of the foregoing
purposes. The Company will give prompt written notice to the Trustee of the
location and any change in the location of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
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SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency in which such series of Securities is payable
sufficient to pay the principal (and premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
(and premium, if any) or interest on any Securities of such series, deposit
with a Paying Agent a sum of money sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee or the Company to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of such
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Holders or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any Event of Default by
the Company (or any other obligor upon the Securities of such series)
in the making of any payment of principal (and premium, if any) or
interest on the Securities of such series; and
(3) during the continuance of any such Event of Default
by the Company, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge hereof or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same terms as those upon which such sums were held by the Company or such
Paying Agent, and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
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Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest shall have become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things reasonably necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises of the
Company and its Material Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Material Subsidiaries and
that the loss thereof will not have a material adverse effect on the business
or financial condition of the Company and its Subsidiaries, taken as a whole.
SECTION 1005. Maintenance of Properties.
The Company will:
(1) cause its properties and the properties of its
Material Subsidiaries (other than properties obtained by the Company
or any Material Subsidiary through foreclosure or other resolution of
any loan) used or useful in the conduct of the business of the Company
and its Material Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary
facilities and equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that the
foregoing shall not prevent the Company or a Material Subsidiary from
discontinuing the operation and maintenance of any of its properties
if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business and will not have a material adverse
effect on the business or financial condition of the Company and its
Subsidiaries, taken as a whole;
(2) take all appropriate steps to preserve, protect and
maintain the trademarks, trade names, copyrights, licenses and permits
used in the conduct of the business of the Company and its Material
Subsidiaries; provided, however, that the foregoing shall not prevent
the Company or a Material Subsidiary from selling, abandoning or
otherwise disposing of any such trademark, trade name, copyright,
license or permit if such sale, abandonment or disposition is, in the
judgment of the Company, desirable in the conduct of
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its business and will not have a material adverse effect on the
business or financial condition of the Company and its Subsidiaries,
taken as a whole; and
(3) The Company and each of its Material Subsidiaries
shall comply with all statutes, laws, ordinances, or government rules
and regulations to which it is subject, noncompliance with which would
materially adversely affect the business or financial condition of the
Company and its Subsidiaries, taken as a whole.
SECTION 1006. Insurance.
The Company shall carry and maintain, and cause each of its
Subsidiaries to carry and maintain, insurance with financially sound and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by similarly-situated companies engaged in similar
operations and owning similar properties in similar geographic areas in which
the Company or such Subsidiary operates, provided that such insurance is
generally available at commercially reasonable rates, and further provided that
the Company may self-insure, or insure through captive insurers or insurance
cooperatives to the extent consistent with prudent business practices. Such
insurance shall be in such amounts, contain such terms, be in such forms and be
for such periods as are customary for such similarly-situated companies in the
Company's industry or insurance markets reasonably accessible by the Company.
The Company will provide and will cause each Subsidiary to provide such
information and documents reasonably requested by the Trustee from time to time
with respect to the Company's provision for insurance. The obligations
evidenced by this covenant shall be interpreted to reflect changes in insurance
practices related to the method in which insurance risks are covered in the
North American and European markets or in any other market in which the Company
or its Subsidiaries, as the case may be, reasonably places coverage.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary and
(2) all material lawful claims for labor, material and supplies which, if
unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which disputed amounts adequate reserves
have been established in accordance with GAAP.
SECTION 1008. Books and Records.
The Company shall, and shall cause each Material Subsidiary to, at all
times keep proper books of record and account in which proper entries shall be
made in accordance with GAAP and, to the extent applicable, regulatory
accounting principles.
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SECTION 1009. Defeasance of Certain Obligations.
The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 301.
The Company may omit to comply with any term, provision or condition set forth
in Article Ten and Section 301(12) and any such omission with respect Article
Ten and to Section 301(12) shall not be an Event of Default, in each case with
respect to the Securities of that series, provided that the following
conditions have been satisfied:
(1) with reference to this Section 1009, the Company has
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 609) as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of that
series, (i) money in an amount, (ii) U.S. Government Obligations which
through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one day before
the due date of any payment referred to in clause (A) or (B) of this
subparagraph (1) money in an amount or (iii) a combination thereof,
sufficient, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge (A) the
principal of (and premium, if any) and each installment of principal
(and premium, if any) and interest on the Outstanding Securities on
the Stated Maturity of such principal or installments of principal and
interest and (B) any mandatory sinking fund payments or analogous
payments applicable to the Securities of such series on the day on
which such payments are due and payable in accordance with the terms
hereof and of such Securities;
(2) such deposit shall not cause the Trustee with respect
to the Securities of that series to have a conflicting interest as
defined in Section 608 and for purposes of the Trust Indenture Act
with respect to the Securities of any series;
(3) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or material instrument to which the Company is a party or by
which it is bound;
(4) no Event of Default or event which with notice or
lapse of time would become an Event of Default with respect to the
Securities of that series shall have occurred and be continuing on the
date of such deposit;
(5) the Company has delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance of certain
obligations and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred; and
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(6) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated in this Section 1009 have been complied with.
SECTION 1010. Statement by Officers as to Default.
(1) The Company will deliver to the Trustee, within 45
days after the end of each calendar quarter, an Officers' Certificate,
stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of
the terms, provisions and conditions hereof (other than a term,
provision or condition specifically dealt with in Clause (2) of this
Section 1010) and, if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have
knowledge.
(2) The Company will deliver to the Trustee, within five
days after any officer eligible hereunder to sign an Officers'
Certificate becomes aware of the occurrence thereof, written notice of
any event which after notice or lapse of time or both would become an
Event of Default pursuant to Clause (5) of Section 501.
SECTION 1011. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Article Ten and Section 301(12),
inclusive, with respect to the Securities of any series if before the time for
such compliance the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any such term,
provision or condition. If a record date is fixed for such purpose, the
Holders on such record date or their duly designated proxies, and only such
Persons, shall be entitled to waive any such term, provision or condition
hereunder, whether or not such Holders remain Holders after such record date;
provided that unless the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall have waived such
term, provision or condition prior to the date which is 90 days after such
record date, any such waiver previously given shall automatically and without
further action by any Holder be canceled and of no further effect.
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SECTION 1012. Exceptions to Covenants.
The Company shall not, and shall not permit any Subsidiary to, take or
permit to be taken any action or fail to take any action which is permitted by
any of the covenants contained herein if such action or omission would result
in the breach of any other covenant contained herein.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem Securities of any series shall
be evidenced by an Officers' Certificate. The Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of
(1) such Redemption Date,
(2) the Redemption Price,
(3) if the Securities of such series have different terms
and less than all of the Securities of such series are to be redeemed,
the terms of the Securities to be redeemed,
(4) whether the redemption is pursuant to a mandatory or
optional sinking fund, or both, if such is the case, and
(5) if less than all the Securities of such series with
identical terms are to be redeemed, the principal amount of such
Securities to be redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere herein, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of like tenor of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not less
than nor more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of like tenor of such series not
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previously called for redemption, by lot or by such other method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of like tenor of that series or any integral multiple thereof of the
principal amount of Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series).
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes hereof, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of any Securities redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at each such Holder's
address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of like
tenor of any 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) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Trustee in the name and at the expense of the
Company, unless the Company notifies the Trustee of its intention to give such
notice directly to each Holder.
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SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in immediately available funds sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 301, installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Regular Record Dates according to
their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment for such series (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. To the
extent a series of Securities represented by a Global Security is to be
redeemed only in part, a notation of such redemption shall be made by the
Trustee in the schedule of exchanges on the Global Security.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. 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 specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any 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 1202. 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.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of like tenor of a
series (other than any previously called for redemption) and (2) may apply as a
credit Securities of like tenor of a series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of like tenor of such
series required to be made pursuant to the terms of such Securities as provided
for by the terms of such series; provided that such 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. Such Securities
shall be first applied to the sinking fund payment next due and any excess
shall be applied to the following sinking fund payments in the order they are
due.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of like tenor of a series, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms of such Securities, 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
Securities of like tenor of that series pursuant to Section 1202 and, at the
time of delivery of such Officers' Certificate, will also deliver to the
Trustee any Securities to be so delivered. 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
1103 and cause notice of the redemption thereof to be given in the name
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of and at the expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Securities of
each series, by such Holder's acceptance thereof, likewise covenants and
agrees, and for purposes of Section 508 consents, that the indebtedness
represented by the Securities of each series and the payment of the principal
thereof, premium, if any, sinking fund requirements therefor and interest
thereon shall be subordinate and subject in right of payment, to the extent and
in the manner hereinafter set forth, to the prior payment in full in cash or
cash equivalents of all Senior Debt.
SECTION 1302. Distribution on Dissolution, Liquidation and Reorganization.
Upon any payment or distribution to creditors of the Company in a
liquidation, dissolution or winding up of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its properties, or upon an assignment for the benefit of creditors
or any other marshaling of the assets and liabilities of the Company (each such
event, if any, herein sometimes referred to as a "Proceeding"):
(a) all Senior Debt shall first be paid in full in cash
or cash equivalents before any payment or distribution of any kind or
character, whether in cash, property or securities, by set off or
otherwise (including any payment or distribution which may be payable
or deliverable by reason of the payment of any Subordinated Debt), on
account of the principal of (and premium, if any) or interest on any
Securities or on account of any purchase, redemption, retirement or
other acquisition of Securities by the Company, any Subsidiary of the
Company, the Trustee or any Paying Agent or on account of any other
obligation of the Company in respect of any Securities (all such
payments, distributions, purchases, redemptions, retirements and
acquisitions, whether or not in connection with a Proceeding, herein
referred to, individually and collectively, as a "Securities
Payment"), or before the Holders of the Securities shall be entitled
to retain any assets so paid or distributed in respect thereof; and
(b) until the Senior Debt is paid in full in cash or cash
equivalents (as provided in subsection (a) above), any Securities
Payment to which the Holders of the Securities or the Trustee for
their benefit would be entitled except for the provisions of this
Section 1302, shall be paid or delivered by the Company or any
receiver, trustee in bankruptcy, liquidating trustee, agent or other
person making such payment or distribution directly to the holders of
Senior Debt or the representative or representatives of all such
holders or the trustee or
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trustees under any indenture pursuant to which any instruments
evidencing any Senior Debt may have been issued (any such
representative or trustee being referred to as a "Senior Agent"), as
their respective interests may appear.
For purposes of this Article Thirteen only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not include (i) a payment or distribution of stock or securities of the
Company as reorganized or readjusted provided for by a plan of reorganization
or readjustment authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy law
or of any other corporation provided for by such plan of reorganization or
readjustment which stock or securities are subordinated in right of payment to
all then outstanding Senior Debt to the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article; or (ii)
any deposit, or payment made therefrom, pursuant to Article Four or Section
1009, with respect to any series of Securities; provided that, in the case of
any such payment from a defeasance trust, the assets deposited in trust to fund
such payment have been so deposited for any period of at least 90 consecutive
days without the occurrence of a blockage of payment on such series of
Securities pursuant to this Section 1302 or Section 1303. The consolidation of
the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer
of all or substantially all of its properties and assets as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a Proceeding for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article Eight.
SECTION 1303. No Payment When Senior Debt in Default.
From and after the receipt by the Trustee of a written notice (the
"Default Notice") from the holder or holders of not less than 51% in principal
amount of the outstanding Senior Debt or any Senior Agent specifying that an
event of default under any Senior Debt (a "Senior Event of Default") has
occurred, the Company may not make any Securities Payment to the Holders of
Securities and neither the Trustee nor the Holders of not less than 25% in
principal amount of the Outstanding Securities may accelerate the maturity of
such Securities as provided in Section 502, until the first to occur of the
following:
(a) such Senior Event of Default is cured, or
(b) such Senior Event of Default is waived by the holders of such
Senior Debt or a Senior Agent, or
(c) the expiration of 180 days after the date the Default Notice
is received by the Trustee, if the maturity of such Senior Debt has not been
accelerated at such time;
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provided, however, that the standstill provisions contained in this Section
1303 shall not prevent the automatic acceleration provisions of Section 502
hereof that apply in the case of an Event of Default described in Section
501(6) or (7). Upon payment in full of the Senior Debt, payment of principal
and interest may be made to the Holders of Securities.
SECTION 1304. Payment to Holders of Senior Debt.
Subject to the provisions of Section 1306, in the event that,
notwithstanding the provisions of Section 1302 or Section 1303, any Securities
Payment shall be received by the Trustee on behalf of the Holders of the
Securities (i) from the Company in violation of such provisions or (ii) from
any other Person under such circumstances that such payment would, if made
directly by the Company, be in violation of such provisions, such payment or
distribution shall be held by the Trustee in trust for the benefit of, and
shall immediately be paid over by the Trustee, upon written request by a Person
entitled to give notice on behalf of such Senior Debt as specified in Section
1310, to the holders of Senior Debt or a Senior Agent, for application to the
payment of Senior Debt.
Upon any payment or distribution of assets or securities of the
Company referred to in Sections 1302 and 1303, the Trustee and the Holders of
the Securities shall be entitled to rely upon any order or decree of a court of
competent jurisdiction, or upon any certificate of any liquidating trustee or
agent or other similar Person making any payment or distribution to the Trustee
or to the Holders of the Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
the Senior Debt, the amount thereof or payment thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article Thirteen. In the event that the Trustee determines, in good faith,
that further evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution referred to
in Sections 1302 and 1303, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, as to the extent to which such Person is
entitled to participation in such payment or distribution, and as to other
facts pertinent to the rights of such Person under Sections 1302 and 1303, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 1305. Subrogation.
Subject to the payment in full in cash or cash equivalents of all
Senior Debt at the time outstanding, the Holders of the Securities shall be
subrogated to the rights of each holder of Senior Debt (to the extent of the
payments or distributions made to such holder pursuant to the provisions of
Sections 1302, 1303 and 1304) to receive payments or distributions of cash,
assets or securities of the Company applicable to the Senior Debt until the
Securities shall be paid in full. No payments or distributions to holders of
Senior Debt of cash, assets or securities of the Company to which Holders of
Securities would be entitled except for the provisions of this Article
Thirteen, and no payment over pursuant to the provisions of this Article
Thirteen to holders of such Senior Debt by the Holders of Securities shall, as
among the Company, its creditors other than the holders of Senior
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Debt, and the Holders of the Securities, be deemed to be a payment by the
Company on account of the Senior Debt, it being understood that the provisions
of this Article Thirteen are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and the
holders of the Senior Debt, on the other hand, and nothing contained in this
Article Thirteen or elsewhere herein, or in the Securities, is intended to or
shall impair, as between the Company, its creditors other than the holders of
Senior Debt, and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Securities
the principal of, premium, if any, and interest on the Securities, as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of Senior Debt,
nor shall anything herein or therein prevent the Trustee or the Holder of any
Securities from exercising all remedies otherwise permitted by applicable law
upon default hereunder, subject to the rights, if any, under this Article
Thirteen of the holders of Senior Debt in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other person making any
payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
paid or distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 1306. Payment on Securities Permitted.
Nothing contained in this Article Thirteen or elsewhere herein, or in
any of the Securities, shall affect the obligation of the Company to make, or
prevent the Company from making, payment of the principal of, sinking fund, if
any, premium, if any, or interest on the Securities, at any time, except under
the conditions described in Section 1303 and except during the pendency of any
Proceeding within the meaning of Section 1302. Nothing contained in this
Article Thirteen or elsewhere herein, or in any of the Securities, shall
prevent the application by the Trustee of any moneys deposited with it
hereunder for the purpose, to the payment of or on account of the principal of,
sinking fund, if any, or premium, if any, or interest on the Securities, unless
the Trustee shall have received written notice, directed to it at its Corporate
Trust Office as provided in Section 1310.
SECTION 1307. Authorization of Holders to Trustee to Effect Subordination.
Each Holder of Securities, by such Holder's acceptance thereof,
authorizes and directs the Trustee in such Holder's behalf to take such action
as may be necessary or appropriate to effectuate, as between the Holders of the
Securities and the holders of Senior Debt, the subordination provided
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in this Article Thirteen and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes.
SECTION 1308. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act by any such holder, or by any noncompliance by the Company
with terms, provisions and covenants hereof, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do
any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) permit the Company to borrow, repay and then reborrow any or all of the
Senior Debt; (iii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iv) release any Person
liable in any manner for the collection of Senior Debt; (v) exercise or refrain
from exercising any rights against the Company and any other Person; and (vi)
apply any sums received by them to Senior Debt.
SECTION 1309. Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this
Article Thirteen in respect of any Senior Debt at any time held by it, to the
same extent as any other holder of Senior Debt, and nothing in Section 613 or
elsewhere herein shall deprive or be construed to deprive the Trustee of its
rights as such holder.
Nothing in this Article Thirteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 607.
SECTION 1310. Notices to Trustee.
The Company shall give written notice to the Trustee of any fact known
to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities, but failure to give such notice shall not
affect the subordination of the Securities to the extent herein provided if
notice is otherwise given as hereinafter provided in this Section 1310.
Notwithstanding the provisions of this Article or any other provision hereof,
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by
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the Trustee in respect of the Securities, unless and until a Responsible
Officer of the Trustee shall have received written notice thereof from the
Company, any holder of Senior Debt or any trustee, fiduciary or agent therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 601, shall be entitled in all respects to assume that
no such facts exist. Any notice required or permitted to be given to the
Trustee by a holder of Senior Debt or a trustee, fiduciary or transfer agent
therefor shall be in writing and shall be sufficient for every purpose
hereunder if in writing and either (i) sent via facsimile to the Trustee, the
receipt of which shall be confirmed via telephone, or (ii) mailed, first class
postage prepaid, or sent overnight carrier, to the Trustee addressed to it at
the address of its principal office specified in the first paragraph hereof or
at any other address furnished in writing to such holder of the Senior Debt by
the Trustee. Notwithstanding anything else contained herein, no notice,
request or other communication to or with the Trustee shall be deemed given
unless received by a Responsible Officer at the Trustee's principal corporate
trust office.
SECTION 1311. No Fiduciary Duty by Trustee to Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to Holders of Securities or the
Company or any other Person moneys or assets to which any holders of Senior
Debt shall be entitled by virtue of this Article Thirteen or otherwise.
SECTION 1312. Paying Agent Treated as Trustee.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article Thirteen shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying
Agent were named in this Article Thirteen in place of the Trustee.
SECTION 1313. Exclusive Power.
The Holders of the Securities and the Trustee acknowledge that the
Holders of Senior Debt and the Holders of Securities, respectively, are
entitled to exercise certain rights and powers with respect to the Company from
time to time, whether before or after an occurrence of an Event of Default and
the exercise of any such right or power by one creditor may preclude the
exercise of a similar right or power by one or more other creditors (any such
right or power being herein called an "Exclusive Power"). To the extent that
any Holder or Holders of Senior Debt or any Senior Agent actually exercises any
Exclusive Power, then the Trustee and the Holders of Securities agree to
refrain from exercising any substantially similar Exclusive Power to the extent
necessary to permit the Holders of Senior Debt to benefit from their actions.
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SECTION 1314. Notices to Holders of Senior Debt.
Notices to Holders of Senior Debt shall be made to each Holder of
Senior Debt, or if Holders of Senior Debt have appointed a Senior Agent, then
to such Senior Agent, and shall made be made in the manor specified in the
document evidencing such Holder's Senior Debt if such a manner is so specified
therein.
SECTION 1315. Rights of Holders of Senior Debt Not Impaired.
No right of any present or future Holder of any Senior Debt to enforce
the subordination provided for in this Article shall at any time or any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any non-compliance by the Company with the terms, provisions and
covenants hereof, regardless of any knowledge thereof any such Holder may have
or be otherwise charged with.
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
SECTION 1401. Applicability of Article.
Securities of any series which are repurchasable before their Stated
Maturity at the option of the Holders shall be repurchasable in accordance with
their terms and (except as otherwise specified pursuant to Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1402. Notice of Repurchase Date.
Notice of any Repurchase Date with respect to Securities of any series
shall, unless otherwise specified by the terms of such Securities, be given by
the Company not less than 45 nor more than 60 days prior to such Repurchase
Date to each Holder of Securities of such series subject to repurchase in
accordance with Section 105.
The notice as to Repurchase Date shall state:
(1) the Repurchase Date;
(2) the Repurchase Price;
(3) the place or places where such Securities are to be
surrendered for payment of the Repurchase Price and the date by which
such Securities must be so surrendered in order to be repurchased;
(4) a description of the procedure which a Holder must
follow to exercise a repurchase right; and
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(5) that exercise of the option to elect repurchase is
irrevocable.
No failure of the Company to give the foregoing notice shall limit any Holder's
right to exercise a repurchase right.
SECTION 1403. Deposit of Repurchase Price.
On or prior to the Repurchase Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Repurchase Price of and (unless the Repurchase Date
shall be an Interest Payment Date) accrued interest, if any, on all of the
Securities of such series which are to be repurchased on that date.
SECTION 1404. Securities Payable on Repurchase Date.
The form of option to elect repurchase having been delivered as
specified in the form of Security for such series as provided in Article Two,
the Securities of such series so to be repurchased shall, on the Repurchase
Date, become due and payable at the Repurchase Price applicable thereto and
from and after such date (unless the Company shall default in the payment of
the Repurchase Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for repurchase in accordance
with said notice, such Security shall be paid by the Company at the Repurchase
Price together with accrued interest to the Repurchase Date; provided, however,
that installments of interest whose Stated Maturity is on or prior to such
Repurchase Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Regular and Special Record Dates according to their terms and the
provisions of Section 307.
If any such Security shall not be paid upon surrender thereof for
repurchase, the principal (and premium, if any) shall, until paid, bear
interest from the Repurchase Date at the rate prescribed therefor in such
Security.
SECTION 1405. Securities Repurchased in Part.
Any Security which by its terms may be repurchased in part at the
option of the Holder and which is to be repurchased only in part shall be
surrendered at any office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unrepurchased portion of the
principal of the Security so surrendered. To the extent a series of Securities
represented by a Global Security is to be
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repurchased in part only, a notation of such redemption shall be made by the
Trustee in the schedule of exchanges on the Global Security.
ARTICLE FIFTEEN
CORPORATE OBLIGATION ONLY
SECTION 1501. Indenture and Securities Solely Corporate Obligations.
No recourse under or upon any obligation, covenant or agreement
contained herein, any indenture supplement, or in any Security, because of any
Indebtedness evidenced thereby, shall be had against any incorporator, or
against any past, present or future stockholder, employee, officer or director,
as such, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
penalty or by any legal or equitable proceeding or otherwise, all such
liability, whether at common law, in equity, by any constitution, statute or
otherwise, of incorporators, stockholders, employees, officers or directors
being expressly waived and released by the acceptance of the Securities by the
Holders thereof and as part of the consideration of the issuance of the
Securities.
* * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
AMRESCO, INC.,
as Issuer
By: /s/ BARRY L. EDWARDS
-----------------------------------
Barry L. Edwards
Executive Vice President and
Chief Financial Officer
Attest:
/s/ L. KEITH BLACKWELL
- ----------------------------
Name: L. Keith Blackwell
-----------------------
Title: Secretary
----------------------
Bank One, Columbus, N.A.,
---------------------------------------
as Trustee
By: /s/ JEFFERY L. EUBANK
-----------------------------------
Name: Jeffery L. Eubank
[SEAL] ------------------------------
Title: Authorized Signer
-----------------------------
Attest:
/s/ VICTORIA PAVLICK
- ----------------------------
Name: Victoria Pavlick
-----------------------
Title: Authorized Signer
----------------------
<PAGE> 1
EXHIBIT 4.2
AMRESCO, INC.
Senior Subordinated Notes, Series 1997-A due 2004
Officer's Certificate and Company Order
Pursuant to the Subordinated Notes Indenture dated as of March 1, 1997
(the "Master Indenture") between AMRESCO, INC. (the "Company") and Bank One,
Columbus, N.A., as Trustee (the "Trustee"), resolutions adopted by the
Company's Board of Directors on May 29, 1996 and February 25, 1997 and
resolutions adopted by the Company's Pricing Committee as of March 6, 1997,
this Officers' Certificate and Company Order is being delivered to the Trustee
to establish the terms of a series of Securities in accordance with Section 301
of the Master Indenture, to establish the form of the Securities of such series
in accordance with Section 201 of the Master Indenture and to establish the
procedures for the authentication and delivery of the Securities of such series
pursuant to Section 303 of the Master Indenture.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Master Indenture.
The Company has complied with all conditions precedent provided for in
the Master Indenture relating to the establishment of (i) a series of
Securities, (ii) the forms of such series of Securities and (iii) the
procedures for the authentication and delivery of such series of Securities.
A. Establishment of Series Pursuant to Section 301 of the Master
Indenture.
The Company hereby establishes, pursuant to Section 301 of the Master
Indenture, a series of Securities that shall have the following terms:
1. The series of Securities being authorized hereby shall bear
the title "Senior Subordinated Notes, Series 1997-A due 2004" (the "Notes").
2. The aggregate principal amount of the Notes shall be limited
to $192,500,000 (except for Notes authenticated and delivered pursuant to
Section 306 of the Master Indenture, and except for any Notes which, pursuant
to Section 303 of the Master Indenture, are deemed never to have been
authenticated and delivered thereunder).
3. Interest on each Note shall be payable to the Person in whose
name such Note is registered at the close of business on the first day of the
month (whether or not a Business Day) in which the relevant Interest Payment
Date (as defined in paragraph 5 hereof) occurs.
4. The Notes shall mature on March 15, 2004, at which time the
entire principal amount of the Notes and accrued but unpaid interest on the
Notes will be due and payable.
<PAGE> 2
5. Each Note shall bear interest at the annual rate of 10.0%
commencing on the date of original issuance. Interest on the Notes shall be
payable semi-annually on March 15 and September 15 of each year, or, if any
such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest payable on any Interest Payment Date shall
include interest on the Notes to and excluding such Interest Payment Date. The
first Interest Payment Date shall be September 15, 1997, and shall include
interest from the date of original issuance to and excluding the first Interest
Payment Date.
6. The principal of (and premium, if any) and interest on the
Notes shall be payable, and the transfer of the Notes shall be registrable and
Notes shall be exchangeable for Notes bearing identical terms and provisions,
at the Corporate Trust Office of the Trustee or such other location as the
Trustee shall specify. Interest on the Notes may, at the option of the
Company, be paid by check mailed to the address of the Person entitled thereto
as it appears on the Security Register.
7. The Notes may not be redeemed by the Company at the option of
the Company prior to maturity.
8. The Company shall have no obligation to redeem or purchase
Notes at the option of a Holder thereof or pursuant to any sinking fund or
analogous provisions, except as set forth below:
(a) Right to Require Repurchase. In the event that there
shall occur a Repurchase Event (as defined in paragraph (g)), then
each Holder shall have the right, at such Holder's option, to require
the Company to purchase, and upon the exercise of such right, the
Company shall purchase, all or any part of such Holder's Notes on the
date (the "Repurchase Date") that is 30 days after the date the
Company gives notice of the Repurchase Event as contemplated in
paragraph (b)(1) at a price (the "Repurchase Price") equal to 100% of
the principal amount thereof, together with accrued and unpaid
interest to the Repurchase Date; provided that, if the Repurchase
Event is a Change of Control of the Company, the Repurchase Price
shall be equal to 101% of the principal amount of the Holder's Notes,
together with accrued and unpaid interest to the Repurchase Date.
Such right to require the repurchase of Notes shall not continue after
a discharge of the Company from its obligations with respect to the
Notes in accordance with Article Four of the Master Indenture.
(b) Notice; Method of Exercising Repurchase Right.
(1) On or before the 15th day after the
Repurchase Event, the Company, or, upon Company Request
transmitted to the Trustee within 5 days of such Repurchase
Event, the Trustee (in the name and at the expense of the
Company), shall give notice of the occurrence of the
Repurchase Event and of the repurchase right set forth herein
arising as a result thereof by first-class mail, postage
prepaid, to each Holder of the Notes at such Holder's address
appearing in the Note Register. Such notice shall be deemed
to have been given at the time of posting of such first-class
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<PAGE> 3
mail. The Company shall also deliver a copy of such notice of
a repurchase right to the Trustee.
Each notice of a repurchase right shall state:
(i) that the notice is being made pursuant to
paragraph 8(a) of this Officer's Certificate
and Company Order and a description of the
circumstances triggering the repurchase
right, including, in the case of a Change of
Control, the relevant facts regarding such
Change of Control (including, but not limited
to, information with respect to pro forma
historical income, cash flow and
capitalization after giving effect to such
Change in Control);
(ii) the Repurchase Date;
(iii) the date by which the repurchase right must
be exercised;
(iv) the Repurchase Price; and
(v) the instructions a Holder must follow to
exercise a repurchase right.
No failure of the Company to give the foregoing
notice shall limit any Holder's right to exercise a repurchase
right. The Trustee shall have no affirmative obligation to
determine if there shall have occurred a Repurchase Event.
(2) To exercise the repurchase right, a Holder
shall deliver to the Company (or an agent designated by the
Company for such purpose in the notice referred to in (1)
above) and to the Trustee on or before the fifteenth (15th )
day prior to the Repurchase Date (i) written notice of the
Holder's exercise of such right, which notice shall set forth
the name of the Holder, the principal amount of the Note or
Notes (or portion of a Note) to be repurchased, and a
statement that an election to exercise the repurchase right is
being made thereby, and (ii) the Note or Notes with respect to
which the repurchase right is being exercised, duly endorsed
for transfer to the Company, if any such Note (other than in
global book-entry form), is issued to such Holder. Such
written notice shall be irrevocable following the close of
business on the fifth (5th) day prior to the Repurchase Date;
provided, however, that the Company, in its sole and absolute
discretion, may consent to the withdrawal of any Notes after
such date and prior to the Repurchase Date. If the Repurchase
Date falls between any Regular Record Date and the next
succeeding Interest Payment Date, Notes to be repurchased must
be accompanied by a check from the Holder of an amount equal
to the interest thereon which the registered Holder thereof is
to receive on such Interest Payment Date. Upon receipt of any
such check, the Trustee shall forward such check to the
Company.
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<PAGE> 4
(3) In the event a repurchase right shall be
exercised in accordance with the terms hereof, the Company
shall on the Repurchase Date pay or cause to be paid in cash
to the Holder thereof the Repurchase Price of the Note or
Notes as to which the repurchase right had been exercised. In
the event that a repurchase right is exercised with respect to
less than the entire principal amount of a surrendered Note,
the Company shall execute and deliver to the Trustee and the
Trustee shall authenticate for issuance in the name of the
Holder a new Note or Notes in the aggregate principal amount
of the unrepurchased portion of such surrendered Note.
(c) Deposit of Repurchase Price. On or before the
Repurchase Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003 of the Master
Indenture) an amount of money, which shall be good funds on the
Repurchase Date, sufficient to pay the Repurchase Price of the Notes
which are to be repurchased on the Repurchase Date.
(d) Notes Not Repurchased on Repurchase Date. If a Note
surrendered for repurchase shall not be so paid on the Repurchase
Date, the principal shall, until paid, bear interest to the extent
permitted by applicable law from the Repurchase Date at the rate per
annum borne by such Note.
(e) Notes Repurchased In Part. Any Note which is to be
repurchased only in part shall be surrendered at any office or agency
of the Company designated for that purpose pursuant to Section 1002 of
the Master Indenture (with, if the Company or the Trustee so requires,
due endorsement by, or written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Note without service charge, a new Note or Notes
of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the
unrepurchased portion of the principal of the Note so surrendered.
(f) Priority of Repurchase Rights. If the Repurchase
Event is effected with respect to an occurrence requiring an offer to
repurchase Junior Debt, the Holders of the Notes requiring the Company
to repurchase Notes must be paid in full pursuant to the terms and
conditions of this paragraph 8 prior to any payments being made to the
Holders of Junior Debt. If the Repurchase Event is effected with
respect to an occurrence requiring an offer to repurchase Subordinated
Debt that is pari passu with the Notes, the Holders of the Notes
requiring the Company to repurchase Notes must be paid concurrently
with the Holders of such pari passu Subordinated Debt.
(g) Definition of Repurchase Event. For purposes of this
paragraph 8, a "Repurchase Event" shall have occurred upon the
occurrence of either (i) any event requiring that the Company
repurchase, or make an offer to repurchase, any Senior Debt or
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<PAGE> 5
Subordinated Debt other than the Notes, whether now outstanding or
issued in the future or (ii) a Change of Control (as defined in
paragraph (h)).
(h) Definition of Change of Control. For purposes of
this paragraph 8, a "Change of Control" means the occurrence of one or
more of the following events: (A) a person or entity or group of
persons or entities acting in concert as a partnership, limited
partnership, syndicate or other group shall, as a result of a tender
or exchange offer, open market purchases, privately negotiated
purchases or otherwise, have become the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act) of Voting Stock of the
Company representing 50% or more of the combined voting power of the
outstanding Voting Stock of the Company; (B) there shall be
consummated (x) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant
to which shares of the Company's Voting Stock would be converted into
cash, securities or other property, other than a merger of the Company
in which the holders of the Company's Voting Stock immediately prior
to the merger have the same proportionate share of voting power with
respect to the Voting Stock of the surviving corporation immediately
after the merger, or (y) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or
substantially all the assets of the Company, other than a sale or
other transfer in which the holders of the Company's Voting Stock
immediately prior to such sale or transfer have the same proportionate
share of voting power with respect to the Voting Stock of the
transferee corporation immediately after such sale or other transfer;
(C) the shareholders of the Company shall approve any plan or proposal
for the liquidation or dissolution of the Company, other than a
liquidation or dissolution in which the holders of the Company's
Voting Stock immediately prior to such liquidation or dissolution have
the same proportionate share of voting power with respect to the
Voting Stock of the corporation which will hold all or substantially
all of the assets of the Company immediately after such liquidation or
dissolution; or (D) individuals who at the date of this Officer's
Certificate and Company Order constitute the Board of Directors shall
cease for any reason to constitute at least a majority thereof, unless
the election or the nomination for election by the Company's
shareholders of each new director was approved by a vote of at least a
majority of the directors who were members of such Board of Directors
at the time of such nomination or election.
9. The Notes shall not be convertible into shares of capital
stock or exchangeable for other securities.
10. The Trustee shall be the Security Registrar and Paying Agent
for the Notes.
11. Neither the amount of principal of, nor any premium or
interest on, any Notes shall be determined by reference to an index or pursuant
to a formula.
12. In addition to the covenants set forth in the Master
Indenture, the Notes shall be subject to the following restrictive covenants:
5
<PAGE> 6
(a) In addition to those terms defined in the Master
Indenture, the following terms shall have the meanings assigned when
used in connection with the Notes:
The term "Acquired Indebtedness" means indebtedness of a
Person existing at the time such Person becomes a Subsidiary of the
Company or assumed in connection with the acquisition by the Company
or a Subsidiary of the Company of assets from such Person, and not
incurred in connection with, or in anticipation of, such Person
becoming a Subsidiary of the Company or such acquisition.
The term "Consolidated Capitalization" means, Subordinated
Debt plus Consolidated Net Worth.
The term "Consolidated EBITDA" means, for any period,
determined in accordance with GAAP on a consolidated basis for the
Company and its Subsidiaries, the sum of Consolidated Net Income
before taxes and non-recurring gains or losses, plus depreciation,
plus amortization, plus interest expense, each as deducted in
determining such Consolidated Net Income before taxes.
The term "Consolidated Interest Expense" means, for any
period, the interest expense which is required to be shown as such on
the financial statements of the Company and its Subsidiaries, on a
consolidated basis, prepared in accordance with GAAP.
The term "Consolidated Net Income" means, for any period, the
amount of Consolidated Net Income (loss) of the Company determined in
accordance with GAAP; provided, however, that there shall not be
included in Consolidated Net Income (1) any net income (loss) of a
Subsidiary for any period during which it was not a Consolidated
Subsidiary or (2) any net income (loss) of businesses, properties or
assets acquired or disposed of (by way of merger, consolidation,
purchase, sale or otherwise) by the Company or any Subsidiary for any
period prior to the acquisition thereof or subsequent to the
disposition thereof.
The term "Consolidated Net Worth" means the excess, as
determined in accordance with GAAP, after appropriate deduction for
minority interests in the net worth of consolidated subsidiaries, of
the Company's assets over its liabilities.
The term "Consolidated Subsidiary" means, a Subsidiary of the
Company, the financial statements of which are consolidated with the
financial statements of the Company.
The term "Interest Coverage Ratio" means, for any date of
determination, the ratio of (1) Consolidated EBITDA for the
immediately preceding 12 calendar months to (2) Consolidated Interest
Expense for the immediately preceding 12 calendar months.
6
<PAGE> 7
The term "Junior Debt" means the principal amount of, and
interest on, any Funded Debt, whether now outstanding or hereafter
created, incurred, assumed or guaranteed, provided that in the
instrument creating or evidencing such Funded Debt or pursuant to
which such Funded Debt is outstanding it is provided that (1) such
indebtedness is junior in right of payment to the Notes; (2) no
payments with respect to such indebtedness may be made at any time
that an Event of Default shall have occurred and be continuing and (3)
no payments other than the payment of interest may be made with
respect to such indebtedness at any time the Notes are Outstanding.
The term "Senior Recourse Debt" means Senior Debt minus any
Funded Debt of the Company or any of its Subsidiaries that is (A)(i)
specifically advanced to finance the acquisition of assets classified
on the Company's balance sheet as "assets held for sale" and (ii)
either (a) secured by the assets to which such indebtedness relates
without recourse to the Company or any of its Subsidiaries or (b)
issued under a loan agreement that requires each advance to be repaid
upon sale of the assets to which such advance relates within no more
than one year from the date of such advance or (B) advanced to a
Subsidiary or group of Subsidiaries formed for the sole purpose of
acquiring or holding a portfolio of assets (i) against which a loan is
obtained that is made without recourse to, and with no
cross-collateralization against the assets of, the Company or any
other Subsidiary, and (ii) upon complete or partial liquidation of
which the loan must be correspondingly completely or partially repaid,
as the case may be.
The term "Total Funded Recourse Debt" means Senior Recourse
Debt plus Subordinated Debt.
(b) Neither the Company nor any Subsidiary will create,
incur, assume, guaranty, or become liable with respect to any Funded
Debt if, immediately after giving effect to any such creation,
incurrence, assumption or guaranty (including giving effect to the
retirement of any existing indebtedness from the proceeds of such
additional Funded Debt):
(1) the aggregate amount of Senior Recourse Debt
outstanding would exceed 450% of the Company's
Consolidated Capitalization; or
(2) the aggregate amount of Total Funded Recourse Debt
outstanding would exceed 600% of the Company's
Consolidated Net Worth; or
(3) the aggregate amount of Subordinated Debt outstanding
would exceed 100% of the Company's Consolidated Net
Worth.
(c) The Company shall not (i) declare or pay any
dividend, either in cash or property, on any shares of its capital
stock (except dividends or other distributions payable solely in
shares of capital stock of the Company), (ii) purchase, redeem or
retire any shares of its capital stock or any warrants, rights or
options to purchase or acquire any shares of its
7
<PAGE> 8
capital stock or (iii) make any other payment or distribution, either
directly or indirectly through any Subsidiary, in respect of the
Company's capital stock (such dividends, purchases, redemptions,
retirements, payments and distributions being herein collectively
called "Restricted Payments") if, after giving effect thereto,
(1) an Event of Default under the Master Indenture would
have occurred; or
(2) (A) the sum of (i) such Restricted Payments plus (ii)
the aggregate amount of all Restricted Payments made
during the period after December 31, 1996 would
exceed (B) the sum of (i) $50 million plus (ii) 50%
of the Company's Consolidated Net Income for each
fiscal year commencing subsequent to December 31,
1996 (with 100% reduction for a loss in any fiscal
year), plus (iii) the cumulative net proceeds
received by the Company from the issuance or sale
after December 31, 1996 of capital stock of the
Company (including in such net proceeds the face
amount of any indebtedness that has been converted
into common stock of the Company after December 31,
1996).
Notwithstanding the foregoing, the Company may make a
previously-declared Restricted Payment if the declaration of such
Restricted Payment was permitted under this paragraph 12(c) when made.
For purposes of this paragraph 12(c), the amount of any Restricted
Payment payable in property shall be deemed to be the fair market
value of such property as determined by the Board of Directors of the
Company.
(d) The Company shall not, directly or indirectly, incur,
create, assume or guaranty any Funded Debt which is expressly
subordinate in right of payment to any Senior Debt, other than Junior
Debt or indebtedness that is pari passu with the Notes in right of
payment. For purposes of this paragraph 12(d), the incurrence of
Senior Debt which is unsecured shall not, because of its unsecured
status, be deemed to be subordinate in right of payment to any Senior
Debt which is secured.
(e) The Company shall not and shall not permit any
Subsidiary of the Company to, create or otherwise cause to become
effective any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary of the Company to (a) pay dividends or make
any other distribution on its capital stock, (b) pay any indebtedness
owed to the Company or any other Subsidiary of the Company or (c) make
loans, advances, or capital contributions to the Company or any other
Subsidiary of the Company except (i) as set forth in the instrument
evidencing or the agreement governing Acquired Indebtedness of any
acquired entity which becomes a Subsidiary of the Company, provided,
that any restriction or encumbrance under such instrument or agreement
existed at the time of acquisition, was not put in place in
anticipation of such acquisition, and is not applicable to any Person,
other than the Person or property or assets of the Person so acquired;
(ii) by agreements and transactions permitted under paragraph 12(c);
(iii) customary provisions restricting subletting or assignment of any
lease or license of the Company or any Subsidiary of the Company; (iv)
any encumbrance or
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<PAGE> 9
restriction arising under applicable law; (v) any encumbrance or
restriction arising under indebtedness or other agreements existing on
the date of original issuance of the Notes; (vi) any restrictions with
respect to a Subsidiary of the Company imposed pursuant to an agreement
that has been entered into for the sale or disposition of the stock,
business, assets or properties of such Subsidiary; (vii) any
encumbrance or restriction arising under the terms of purchase money
obligations, but only to the extent such purchase money obligations
restrict or prohibit the transfer of the property so acquired; (viii)
any encumbrance or restriction arising under customary non-assignment
provisions in installment purchase contracts; (ix) any encumbrance or
restriction on the ability of any Subsidiary to transfer any of its
property acquired after the date hereof to the Company or any
Subsidiary that is required by a lender to, or purchaser of any
indebtedness of, such Subsidiary in connection with a financing of the
acquisition of such property (including with respect to the purchase of
asset portfolios and pursuant to the underwriting or origination of
mortgage loans) by such Subsidiary; and (x) any encumbrance or
restriction pursuant to any agreement that extends, refinances, renews
or replaces any agreement described in the foregoing clauses (i)
through (ix).
(f) The Company shall not, and shall not permit any of
its Material Subsidiaries to, enter into any transaction (or series of
related transactions), including, without limitation, any loan,
advance, guarantee or capital contribution to, or for the benefit of,
or any sale, purchase, lease, exchange or other disposition of any
property or the rendering of any service, or any other direct or
indirect payment, transfer or other disposition (a "Transaction"),
involving payments in excess of $60,000, with any Affiliate of the
Company (other than a wholly-owned Subsidiary), on terms and
conditions less favorable to the Company or such Material Subsidiary,
as the case may be, than would be available at such time in a
comparable Transaction in arm's length dealings with an unrelated
Person as determined by the Board of Directors, such approval to be
evidenced by a Board Resolution.
The provisions of the immediately preceding paragraph will not
apply to:
(1) Restricted Payments otherwise permitted
pursuant to the Master Indenture and this Officer's
Certificate and Company Order;
(2) fees and compensation (including amounts paid
pursuant to employee benefit plans) paid to, and indemnity
provided on behalf of, officers, directors, employees or
consultants of the Company or any Subsidiary, as determined by
the Board of Directors or the senior management thereof in the
exercise of their reasonable business judgment; or
(3) payments for goods and services purchased in
the ordinary course of business on an arms-length basis.
(g) The Company will not permit the Interest Coverage
Ratio to be less than 1.25 to 1.00.
9
<PAGE> 10
13. The Notes shall be issued in denominations of $1,000 and any
integral multiple thereof.
14. The Notes shall be denominated, and payments of principal of
and any premium and interest on the Notes shall be made, in the currency of the
United States of America.
15. The Notes shall be subject to the events of default specified
in Section 501, paragraphs (1) through (8), of the Master Indenture.
16. The portion of the principal amount of the Notes which shall
be payable upon declaration of acceleration of Maturity thereof pursuant to
Section 502 of the Master Indenture shall be the entire principal amount
thereof.
17. The Notes shall initially be issued as book-entry notes in the
form of one fully registered global security which will be deposited with, or
on behalf of, The Depository Trust Company, as depositary ("DTC"), and
registered in the name of DTC's nominee. Beneficial interests in the Notes
will be shown on, and transfers thereof will be effected only through, records
maintained by DTC and its participants. Except as described in the Master
Indenture, Notes in definitive certificated form shall not be issuable to any
Person other than DTC and such global security may not be exchanged for Notes
registered in the name of, nor may any transfer of such global security be
registered to, any Person other than DTC or its nominee.
18. The Notes shall be governed by the defeasance provisions of
Section 403 and any other applicable sections of the Master Indenture.
19. The Notes shall be issued in fully registered form only,
without coupons.
20. The Notes shall be unsecured obligations of the Company and
shall be subordinated in right of payment to the prior payment in full of all
Senior Debt to the extent provided in the Master Indenture. Each Holder, by
accepting delivery of a Note, agrees to such subordination. The Notes shall be
pari passu in right of payment with the Company's 10% Senior Subordinated Notes
due 2003.
B. Establishment of Form of Note Pursuant to Section 201 of the Master
Indenture.
The Company hereby establishes, pursuant to Section 201 of the Master
Indenture, that the Notes shall be substantially in the form attached as
Exhibit A hereto.
C. Order for Authentication and Delivery of Notes Pursuant to Section 303
of the Master Indenture.
Pursuant to Section 303 of the Master Indenture, the Company hereby
orders that the Trustee shall authenticate and deliver to DTC the global
security representing the Notes delivered by the Company to the Trustee, as
provided in Section 303 of the Master Indenture.
10
<PAGE> 11
D. Compliance.
The undersigned have read the pertinent sections of the Master
Indenture, including the related definitions contained therein. The
undersigned have examined the resolutions adopted by the Board of Directors of
the Company and the Pricing Committee of the Company's Board of Directors. In
the opinion of the undersigned, the undersigned have made such examination or
investigation as is necessary to enable the undersigned to express an informed
opinion as to whether or not the conditions precedent to the establishment of
(i) a series of Securities, (ii) the forms of such series of Securities and
(iii) the procedures for the authentication and delivery of such series of
Securities contained in the Master Indenture have been complied with. In the
opinion of the undersigned, such conditions have been complied with.
Dated as of: March 12, 1997
AMRESCO, INC.
By /s/ BARRY L. EDWARDS
------------------------------------
Barry L. Edwards
Executive Vice President and
Chief Financial Officer
By /s/ L. KEITH BLACKWELL
------------------------------------
L. Keith Blackwell
Vice President, General Counsel
and Secretary
11
<PAGE> 12
EXHIBIT A
FORM OF NOTE
A-1
<PAGE> 13
REGISTERED
No. 1997A-1
AMRESCO, INC.
Senior Subordinated Note, Series 1997-A due 2004
Registered Principal Amount: $192,500,000
CUSIP No.: 031909AD6
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
(as defined below) or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
This Note is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of Cede & Co, as a
nominee for DTC. This Note is exchangeable for Notes registered in the name of
a Person other than DTC or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Note (other than a transfer
of this Note as a whole by DTC to a nominee of DTC or by any nominee of DTC to
DTC or another nominee of DTC) may be registered except in such limited
circumstances.
AMRESCO, INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture (as such term is defined on the reverse
hereof)), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of One Hundred Ninety Two Million Five
Hundred Thousand Dollars ($192,500,000) on March 15, 2004, and to pay interest
thereon semi-annually on March 15 and September 15 of each year, or, if such
day is not a Business Day, the next succeeding Business Day (each an "Interest
Payment Date"), from March 12, 1997, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, commencing September
15, 1997, at the rate of 10.0% per annum, until the principal hereof is paid or
made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note is registered at the
close of business on the first day of the month (whether or not a Business Day)
in the month in which the relevant Interest Payment Date occurs. Any interest
on this Note that is not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such date and may either be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
holders of the Notes not less than 10 days prior to such Special Record Date,
or be paid at any time in any other lawful manner not inconsistent with
A-2
<PAGE> 14
the requirements of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
Payment of the principal of (and premium, if any) and any interest due
on this Note will be made at the office or agency of the Company maintained for
that purpose in same day funds, in the City of Columbus, Ohio or New York, New
York in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. So long as
DTC or its nominee, Cede & Co., is the sole registered owner and the sole
Holder of the Global Security for all purposes under the Indenture, such
payments will be made by the Trustee directly to DTC or to such nominee.
Reference is hereby made to the further provisions of this Note set
forth below, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee referred to below by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March 12, 1997 AMRESCO, INC.
By:
-------------------------------------
Barry L. Edwards
Executive Vice President and
Chief Financial Officer
Attest:
- ---------------------------------
L. Keith Blackwell, Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein and
issued pursuant to the within-mentioned Indenture.
Bank One, Columbus, N.A., as Trustee
By
--------------------------------------
Authorized Signatory
A-3
<PAGE> 15
AMRESCO, INC.
Senior Subordinated Note, Series 1997-A due 2004
This Note is one of a duly authorized issue of securities of the
Company (the "Securities") issued and to be issued in one or more series under
a Subordinated Notes Indenture dated as of March 1, 1997, between the Company
and Bank One, Columbus, N.A., as Trustee (the "Trustee," which term includes
any successor trustee under the Subordinated Notes Indenture), as supplemented
by an Officers' Certificate and Company Order dated as of March 12, 1997,
pursuant to such Subordinated Notes Indenture establishing the Notes (such
Subordinated Notes Indenture, as supplemented by such Officer's Certificate and
Company Order, being herein called the "Indenture"), to which Indenture
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Security is one of the series designated as
Senior Subordinated Notes, Series 1997-A due 2004 (the "'Notes"), limited in
aggregate principal amount to $192,500,000. By the terms of the Indenture,
additional Securities of other separate series, which may vary as to date,
amount, Stated Maturity, interest rate or method of calculating the interest
rate and in other respects as therein provided, may be issued in an unlimited
principal amount.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment
to the prior payment of specified obligations to holders of Senior Debt, as
defined in the Indenture, and this Note is issued subject to such provisions
and each Holder of this Note, by accepting the same, agrees to and shall be
bound by such provisions and authorizes the Trustee in such Holder's behalf, to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and appoints the Trustee his
attorney-in-fact for such purpose.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Note of this series will have any right to institute any
proceeding, judicial or otherwise, with respect to the Indenture, or for the
appointment of a receiver or trustee, or for any other remedy under the
Indenture, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to the Notes, the
Holders of not less than 25% in principal amount of the Outstanding Notes of
this series shall have made written request to the Trustee to institute
proceedings in its own name as Trustee, furnished the Trustee reasonable
indemnity, and within 60 days the Trustee shall not have received from the
Holders of a majority in principal amount of the Outstanding Notes a direction
inconsistent with such request and shall have failed to institute such
proceeding; provided, however, that such limitations do not apply to a suit
instituted by the Holder hereof for the enforcement of payment of the principal
of (and premium, if any) and interest on this Note on or after the respective
due dates expressed herein.
The Notes are not subject to redemption by the Company at the option
of the Company prior to maturity. The Notes are not subject to any sinking
fund.
In accordance with the terms of the Indenture, upon the occurrence of
a Repurchase Event, the Holder of this Note shall have the right, at such
Holder's option, to require the Company to purchase, and upon exercise of such
right, the Company shall purchase, all or any part of this Note on the date
that is 30 days after the date the Company gives notice of the Repurchase Event
at a price equal to 100% of the principal amount thereof, together with accrued
and unpaid interest; provided
A-4
<PAGE> 16
that if the Repurchase Event is a Change of Control of the Company, the price
will be equal to 101% of the principal amount thereof, together with accrued
and unpaid interest.
In the event of redemption of this Note in part only, a new Note or
Notes of like tenor of an authorized denomination for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof, and, in the event of transfer or exchange, a new Note or Notes of like
tenor and for a like aggregate principal amount will be issued to the Holder,
in the case of exchange, or the designated transferee or transferees, in the
case of transfer.
If an Event of Default with respect to Notes shall occur and be
continuing, the principal of the Notes may (subject to the conditions set forth
in the Indenture and in the Officer's Certificate and Company Order) be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected
and, for certain purposes, without the consent of the Holders of any Securities
at the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequence. Any such consent or waiver by the Holder of this Note shall
bind such Holder and every future Holder of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
The Notes are issuable only in registered form, without coupons, in
denominations of $1,000 and any amount in excess thereof which is an integral
multiple of $1,000. As described in the Indenture, the Notes may be issued as
book-entry notes in the form of one fully registered Global Security bearing
the legend specified in the Indenture regarding certain restrictions on
registration of transfer and exchange, deposited with, or on behalf of, DTC,
and registered in the name of DTC's nominee. As provided in the Indenture, and
subject to certain limitations (including additional limitations in the event
that this Note is a Global Security) therein set forth, Notes are exchangeable
for a like aggregate principal amount of Notes and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
A-5
<PAGE> 17
As provided in the Indenture and subject to certain limitations
therein set forth (including additional limitations in the event that this Note
is a Global Security), the transfer of this Note is registrable in the Security
Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing and thereupon one or more new
Notes of like tenor of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered in the Security Register as
the owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Notes shall be governed by and construed in accordance with the
laws of the State of Texas.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
At the request of the registered owner, the Company shall promptly
issue and deliver one or more separate Note certificates evidencing each
obligation evidenced by this master Note. As of the date any such Note
certificate or certificates are issued, the obligations which are evidenced
thereby shall no longer be evidenced by this master Note.
================================================================================
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto
________________________________________________________________________________
(Name, Address, and Taxpayer Identification Number of Assignee)
this master Note and all rights thereunder, hereby irrevocably constituting and
appointing _________________________________________ attorney to transfer this
master Note on the books of the Company with full power of substitution in the
premises.
Dated:
----------------------------------------
Signature Guaranteed: (Signature)
This signature on this
assignment must correspond
with the name as written upon
the face of this master Note,
in every particular, without
alteration or enlargement or
any change whatsoever.
================================================================================
A-6
