SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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) April 15, 1997
THE MONEY STORE INC.
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(Exact name of registrant as specified in its charter)
NEW JERSEY 001-10785 22-2293022
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(State or other jurisdiction of (Commission (IRS Employer
incorporation) File Number) ID Number)
2840 MORRIS AVENUE, UNION, NEW JERSEY 07083
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(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number,
including area code: (908) 686-2000
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N/A
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(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events.
Included herein respectively as Exhibits 1.1, 4.1, 4.2, 4.3, 4.4 and 4.5
are (i) the Underwriting Agreement dated April 10, 1997 among The Money Store
Inc. (the "Company"), Bear, Stearns & Co. Inc., Lehman Brothers Inc., Prudential
Securities Incorporated and Salomon Brothers Inc, (ii) the Indenture dated as of
April 15, 1997 among the Company, as Issuer, The Chase Manhattan Bank, as
trustee (the "Trustee"), and the Subsidiary Guarantors named therein (the
"Subsidiary Guarantors"), (iii) the First Supplemental Indenture dated as of
April 15, 1997 among the Company, the Trustee and the Subsidiary Guarantors
relating to the issuance by the Company of $175,000,000 aggregate principal
amount of its 8.05% Senior Notes Due 2002, (iv) the Second Supplemental
Indenture dated as of April 15, 1997 among the Company, the Trustee and the
Subsidiary Guarantors relating to the issuance by the Company of $125,000,000
aggregate principal amount of its 8.375% Senior Notes Due 2004, (v) the Form of
8.05% Senior Notes Due 2002, including the Subsidiary Guarantee relating thereto
and (vi) the Form of 8.375% Senior Notes Due 2004, including the Subsidiary
Guarantee relating thereto.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(c) EXHIBITS
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EXHIBIT NO.
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1.1 Underwriting Agreement dated April 10, 1997 among The Money
Store Inc., Bear, Stearns & Co. Inc., Lehman Brothers
Inc., Prudential Securities Incorporated and Salomon
Brothers Inc.
4.1 Indenture dated as of April 15, 1997 among The Money Store Inc.,
as Issuer, The Chase Manhattan Bank, as Trustee, and the
Subsidiary Guarantors named therein.
4.2 First Supplemental Indenture dated as of April 15, 1997
among The Money Store Inc., The Chase Manhattan Bank, as
Trustee, and the Subsidiary Guarantors.
4.3 Second Supplemental Indenture dated as of April 15, 1997
among The Money Store Inc., The Chase Manhattan Bank, as
Trustee, and the Subsidiary Guarantors.
4.4 Form of 8.05% Senior Notes Due 2002, including the Subsidiary
Guaranty (included in Exhibit 4.2).
4.5 Form of 8.375% Senior Notes Due 2004, including the Subsidiary
Guaranty (included in Exhibit 4.3).
<PAGE>
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 thereunto duly authorized.
THE MONEY STORE INC.
By: /s/ Morton Dear
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Name: Morton Dear
Title: Executive Vice President
Dated: April 24, 1997
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
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1.1 Underwriting Agreement dated April 10, 1997 among The
Money Store Inc., Bear, Stearns & Co. Inc., Lehman
Brothers Inc., Prudential Securities Incorporated and
Salomon Brothers Inc.
4.1 Indenture dated as of April 15, 1997 among The Money Store
Inc., as Issuer, The Chase Manhattan Bank, as Trustee, and the
Subsidiary Guarantors named therein.
4.2 First Supplemental Indenture dated as of April 15, 1997 among
The Money Store Inc., The Chase Manhattan Bank, as Trustee, and
the Subsidiary Guarantors.
4.3 Second Supplemental Indenture dated as of April 15, 1997 among
The Money Store Inc., The Chase Manhattan Bank, as Trustee, and
the Subsidiary Guarantors.
4.4 Form of 8.05% Senior Notes Due 2002, including the Subsidiary
Guaranty (included in Exhibit 4.2).
4.5 Form of 8.375% Senior Notes Due 2004, including the Subsidiary
Guaranty (included in Exhibit 4.3).
Exhibit 1.1
$300,000,000
THE MONEY STORE INC.
$175,000,000 8.05% SENIOR NOTES DUE 2002
$125,000,000 8.375% SENIOR NOTES DUE 2004
UNDERWRITING AGREEMENT
New York, New York
April 10, 1997
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Prudential Securities Incorporated
Salomon Brothers Inc
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Dear Sirs:
The Money Store Inc., a New Jersey corporation (the "Company"),
proposes to issue and sell to you, the underwriters (the "Underwriters"), the
principal amount of its securities identified in SCHEDULE IA and SCHEDULE IB
hereto (the "Notes"), to be issued under the Indenture to be dated as of April
15, 1997 among the Company, The Chase Manhattan Bank, as trustee (the
"Trustee"), and the subsidiary guarantors named therein (the "Guarantors"), as
amended and supplemented by the First Supplemental Indenture to be dated as of
April 15, 1997 among the Company, the Trustee and the Guarantors and the Second
Supplemental Indenture to be dated as of April 15, 1997 among the Company the
Trustee and the Guarantors (collectively, the "Indenture"). The Notes are more
fully described in the Final Prospectus referred to below.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, each Underwriter, that:
a. The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (the file number of which is set
forth in SCHEDULE I hereto), which has become effective, for the
registration under the Act of the Notes. Such registration statement,
as amended at the date of this Agreement, meets the requirements set
forth in Rule 415 under the Act and complies in all other material
respects with said Rule. The Company will file with the Commission
pursuant to Rule 424 and/or Rule 434 under the Act a supplement to the
form of prospectus included in such registration statement relating to
the Notes and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with
respect to the Company to be set forth therein. Such registration
statement, including all financial schedules and exhibits thereto, as
amended at the time when it is declared effective, is hereinafter
called the "Registration Statement"; such prospectus in the form in
which it appears in the Registration Statement is hereinafter called
the "Basic Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission pursuant to
Rule 424 and/or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been
filed pursuant to Rule 424(b) hereinafter is called the "Supplemented
Prospectus." Any reference herein to the Registration Statement, the
Basic Prospectus, any Supplemented Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein that were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any Supplemented
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, and the
Supplemented Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of such
Registration Statement, Basic Prospectus, any Supplemented Prospectus
or the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
b. When any Supplemented Prospectus is filed pursuant to Rule
424 or Rule 434 under the Act, when the Final Prospectus is first filed
pursuant to Rule 424 or Rule 434 under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with the Commission and
at the Closing Date (as hereinafter defined), (i) the Registration
Statement as amended as of any such time, the Supplemented Prospectus,
as amended or supplemented as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and the
Indenture will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the Exchange Act and the respective
rules thereunder, (ii) the Registration Statement, as amended as of any
such time, will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, (iii)
the Supplemented Prospectus, as amended or supplemented as of any such
time, will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (iv) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to (A) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the Trust
Indenture Act of the Trustee or (B) the information contained in or
omitted from the Registration Statement, the Supplemented Prospectus,
or the Final Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter specifically
for use in connection with the preparation of the Registration
Statement, the Supplemented Prospectus and the Final Prospectus.
c. Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, except
as set forth in the Registration Statement and the Final Prospectus,
(i) there has been no material adverse change or any development
involving a prospective material adverse change in the business,
properties, assets, operations, condition (financial or other), net
worth or results of operations of the Company and its subsidiaries
taken as a whole, whether or not arising from transactions in the
ordinary course of business, (ii) since the date of the latest balance
sheet presented in the Registration Statement and the Final Prospectus,
neither the Company nor any of its subsidiaries were incurred or
undertaken any liabilities or obligations, direct or contingent, which
are material to the Company and its subsidiaries taken as a whole,
except for liabilities or obligations which are reflected or
specifically described in the Registration Statement and the Final
Prospectus or incurred in the ordinary course of business, and (iii)
neither the Company nor any of its subsidiaries have entered into any
transactions, other than those in the ordinary course of business or
disclosed in the Registration Statement and Final Prospectus, which are
material to the Company and its subsidiaries taken as a whole.
d. Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any other party, is now, or is reasonably expected
by the Company or any of its subsidiaries to be, in violation or breach
of, or default (disregarding any grace or notice provision) with
respect to any material provision of any material contract, agreement,
instrument, lease or, license to which the Company or any of its
subsidiaries is a party, which violation, breach or default or
violations, breaches or defaults, singly or in the aggregate has, or
can reasonably be expected in the future to have, a material adverse
effect on the business, properties, assets, operations, condition
(financial or other), net worth or results of operations of the Company
and its subsidiaries taken as a whole; and each such material contract,
agreement, instrument, lease and is in full force and is the legal,
valid and binding obligation of the Company or its subsidiaries, as the
case may be, and is enforceable as to the Company or its subsidiaries,
as the case may be, in accordance with its terms subject, as to
enforceability, to applicable bankruptcy, reorganization, moratorium or
other similar laws of general application affecting the rights of
creditors generally, except where such failure to be in full force or
to be a legal, valid and binding obligation or to be enforceable, as
the case may be, has not had, or would not reasonably be expected in
the future to have, a material adverse effect on the business,
properties, assets, operations, condition (financial or other), net
worth or results of operations of the Company and its subsidiaries
taken as a whole.
e. Except as described in the Final Prospectus, there is no
litigation or governmental proceeding to which the Company or any of
its subsidiaries is a party or to which any property of the Company or
any of its subsidiaries is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company or any of
its subsidiaries which could reasonably be expected to have a material
adverse affect on the business, properties, assets, operations,
condition (financial or other), net worth or results of operations of
the Company and its subsidiaries taken as a whole or which is required
to be disclosed in the Registration Statement and the Final Prospectus.
f. The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and the
Final Prospectus present fairly the financial position of the Company
and its subsidiaries as of the dates indicated and the results of its
operations for the periods specified; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
SCHEDULE I hereto, the respective principal amount of the Notes set forth
opposite such Underwriter's name in SCHEDULE II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Notes shall
be made on the date and at the time specified in SCHEDULE I hereto, which date
and time may be postponed by agreement between the Underwriters and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Notes being herein called the "Closing Date"). Delivery of the Notes
shall be made to the Underwriters against payment by the Underwriters of the
purchase price thereof in the manner set forth in SCHEDULE I hereto.
Certificates for the Notes shall be in the form of one or more permanent global
certificates in definitive form deposited with the Paying Agent, Security
Registrar and Transfer Agent as custodian for The Depository Trust Company
("DTC") and registered in the name of Cede & Co., as nominee for DTC.
The Company agrees to have the Notes available for inspection by the
Underwriters in New York, New York, not later than 1:00 PM on the business day
prior to the Closing Date.
4. AGREEMENTS. The Company agrees with the several Underwriters that:
a. Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus to be filed with the Commission
pursuant to Rule 424 or Rule 434. The Company will advise the
Underwriters promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when
any amendment to the Registration Statement relating to the Notes shall
have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement
to the Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
b. If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which, in the opinion of counsel to the Company, the Final Prospectus
as then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or if, in the opinion of counsel to the Company,
it shall be necessary to amend or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
c. The Company, as soon as practicable, will make generally
available to its security holders and to the Underwriters a
consolidated earnings statement of the Company and its subsidiaries
that satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
d. The Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective on or prior to the Closing Date and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Supplemented Prospectus and the Final
Prospectus and any amendments thereof and supplements thereto as the
Underwriters may reasonably request. The Company will pay the expenses
of printing all documents relating to the offering.
e. The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as the
Underwriters may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of
the Notes and will arrange for the determination of the legality of
the Notes for purchase by institutional investors; provided, however,
that the Company shall not be required to qualify to do business in
any jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited service of
process of any jurisdiction where it is not now so subject.
f. The Company will not voluntarily claim, and will resist
actively any attempts to claim, the benefit of any usury laws against
the holders of the Notes.
g. Neither the Company nor any of its subsidiaries will take,
directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Notes. Until the business day following the
Closing Date, the Company will not, without the consent of the
Underwriters, offer or sell, or announce the offering of, any
securities (other than the Notes) covered by the Registration
Statement or by any other registration statement filed under the Act.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Notes shall be subject to the accuracy in
all material respects of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as of the Closing Date, to the accuracy in all material respects of
the opinions, certificates or letters furnished to you or to Sills Cummis
Zuckerman Radin Tischman Epstein & Gross, P.A., counsel for the Underwriters,
pursuant to the provisions hereof, to the performance by the Company in all
material respects of its obligations hereunder and to the following additional
conditions:
a. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and the Final Prospectus shall have been filed with the
Commission within the time period prescribed by the Commission.
b. The Company shall have furnished to the Underwriters the
opinion, dated the Closing Date, of Eric R. Elwin, Esq., Vice
President and Corporate Counsel for the Company, in substantially the
form attached as EXHIBIT A hereto.
c. The Company shall have furnished to the Underwriters the
opinion, dated the Closing Date, of Stroock & Stroock & Lavan LLP,
counsel for the Company, in substantially the form attached as EXHIBIT
B hereto.
d. All proceedings taken in connection with the sale of the
Notes as herein contemplated shall be reasonably satisfactory in form
and substance to you and to Sills Cummis Zuckerman Radin Tischman
Epstein & Gross, P.A., counsel for the Underwriters, and the
Underwriters shall have received from counsel for the Underwriters
such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Notes, the Indenture, the Registration
Statement, the Final Prospectus and other related matters as the
Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
e. The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the Chief Executive Officer or a
Senior or Executive Vice President and the principal financial or
accounting officer or Treasurer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus
and this Agreement and that to the best of their knowledge:
i. the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied in
all material respects with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Closing Date;
ii. no stop order suspending the effectiveness of the
Registration Statement, as amended, and no order directed at
any document incorporated by reference in the Registration
Statement or the Final Prospectus or any amendment or
supplement thereto has been issued, and no proceedings for
that purpose have been instituted or threatened or, to the
best of the Company's knowledge, are contemplated by the
Commission; and
iii. since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus, there has been no material adverse change, or any
development involving a prospective material adverse change,
in the condition (financial or otherwise), management, net
worth, or results of operations of the Company and its
subsidiaries, considered as a whole, whether or not arising
from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus.
f. KPMG Peat Marwick LLP shall have furnished to the Underwriters a
letter or letters (which may refer to letters previously delivered to one or
more of the Underwriters), dated the date hereof, in form and substance
satisfactory to the Underwriters, confirming that the response, if any, to Item
10 of the Registration Statement is correct insofar as it relates to them and
stating in effect that:
i. They are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published rules
and regulations thereunder.
ii. In their opinion, the consolidated financial statements
of the Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the Act and the regulations thereunder with
respect to registration statements on Form S-3 and the Exchange Act
and the regulations thereunder.
iii. On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of:
(1) Reading the minutes of the meetings of
the shareholders, the board of directors, executive
committee and audit committee of the Company and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through
a specified date not more than five business days
prior to the date of delivery of such letter; and
(2) Making inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below; nothing
has come to their attention as a result of the
foregoing procedures that caused them to believe
that:
(a) (i) at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases
in shareholders' equity of the Company and the
subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet
included or incorporated by reference in the
Registration Statement and the Prospectus or (ii) for
the period from the date of the latest available
financial data to a specified date not more than five
business days prior to the delivery of such letter,
there was any change in the capital stock or the
long-term debt (other than scheduled repayments of
such debt) or any decreases in shareholders' equity
of the Company and the subsidiaries on a consolidated
basis, except in all instances for changes or
decreases which the Registration Statement and
Prospectus discloses have occurred or may occur, or
KPMG Peat Marwick LLP shall state any specific
changes or decreases.
iv. The letter shall also state that KPMG Peat Marwick LLP
has carried out certain other specified procedures, not constituting
an audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by the
Underwriters and agreed to by KPMG Peat Marwick LLP, and has found
such amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter. In addition,
on the Closing Date, KPMG Peat Marwick LLP shall have furnished to the
Underwriters a letter or letters, dated the date of this Agreement, in
form and substance satisfactory to the Underwriters, to the effect set
forth in this paragraph (f) and in SCHEDULE I hereto.
g. Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, there
shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (f) of this Section 5 or (ii) any
change, in or affecting the earnings, business or properties of the
Company and its subsidiaries the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of the
Underwriters, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the Notes
as contemplated by the Registration Statement and the Final
Prospectus.
h. Prior to the Closing Date, the Company shall have
furnished to the Underwriters such further information, certificates
and documents as the Underwriters may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Underwriters. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile
transmission confirmed in writing.
6. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the copying of this Agreement and the Indenture,
(iii) the preparation, issuance and delivery of the certificates for the Notes
to the Underwriters, including capital duties, stamp duties and stock transfer
taxes, if any, payable upon issuance of any of the Notes, the sale of the Notes
to the Underwriters and the fees and expenses of the transfer agent for the
Notes, (iv) the fees and disbursements of the Company's counsel and accountants,
(v) the qualification of the Notes under state securities laws in accordance
with the provisions of Section 4(e), including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey, (vi) the printing
and delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of the preliminary prospectuses,
and of the Prospectuses and any amendments or supplements thereto, (vii) the
printing and delivery to the Underwriters of copies of the Blue Sky Survey, and
(viii) the fee of the National Association of Securities Dealers, Inc., if any.
If the sale of the Notes provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Notes.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the
Notes as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Supplemented Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that:
(i) the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter specifically for use in connection with the
preparation thereof, and
(ii) such indemnity with respect to the Basic
Prospectus or any Supplemented Prospectus shall not inure to
the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Notes which are the
subject thereof if such Underwriters did not send or deliver
to such person a copy of the Final Prospectus (or the Final
Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the
confirmation of the sale of such Notes to such person in any
case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the
Basic Prospectus or any Supplemented Prospectus was corrected
in the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such
Underwriter specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth in the
last paragraph of the cover page, or the first paragraph of the inside
front cover page and the third paragraph, fifth paragraph (to the
extent statements made therein relate to the market making activities
of the Underwriters) and sixth paragraph under the heading
"UNDERWRITING" in the Supplemented Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the documents referred to
in the foregoing indemnity, and you, as the Underwriters, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under
paragraphs (a) or (b) of this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case any
such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and, to the extent that
it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in
any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 7 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless
(i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one
separate counsel, approved by the Underwriters in the case of
subparagraph (a), representing the indemnified parties under
subparagraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of the action or
(iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense
of the indemnifying party; and except that if clause (i) or
(iii) is applicable, such liability shall be only in respect
of the counsel referred to in such clause (i) or (iii).
No indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in the
preceding paragraphs of this Section 7 is due in accordance with its
terms but is for any reason held by a court to be unavailable from
either indemnifying party on the grounds of policy or otherwise or is
insufficient, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such
discount and the purchase price of the Notes specified in SCHEDULE IA
or SCHEDULE IB hereto and the Company is responsible for the balance;
provided, however, that
(i) in no case shall any Underwriter (except as may
be provided in any agreement among underwriters relating to
the offering of the Notes) be responsible for any amount in
excess of the underwriting discount applicable to the Notes
purchased by such Underwriter hereunder, and
(ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the
meaning of the Act shall have the same rights to contribution
as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same
rights to contribution as the Company.
8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Notes set forth
opposite their names in SCHEDULE II hereto bear to the aggregate amount of Notes
set forth opposite the names of all the remaining Underwriters) the Notes which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Notes which
the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Notes set forth in SCHEDULE II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such non-defaulting
Underwriters do not purchase all the Notes, this Agreement will terminate
without liability to any non-defaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
non-defaulting Underwriters shall determine in order that the required changes
in the Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company and
any non-defaulting Underwriter for damages occasioned by its default hereunder.
9. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for the Notes, if prior to such time (i) trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on either the exchange or market system, (ii) a banking moratorium
shall have been declared either by New York or Federal authorities or (iii)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the
Underwriters, impracticable to market the Notes.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Notes. The provisions of
Section 6 and 7 hereof and this Section 10 shall survive the termination or
cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
SCHEDULE I hereto, with a copy to: Sills Cummis Zuckerman Radin Tischman Epstein
& Gross, P.A., One Riverfront Plaza, Newark, New Jersey 07102-5400, Attention:
Victor H. Boyajian, Esq.; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 2840 Morris Avenue, Union, New Jersey
07083 to the attention of the Secretary, with a copy to Stroock & Stroock &
Lavan LLP, 180 Maiden Lane, New York, New York 10038-4982, Attention: James R.
Tanenbaum, Esq.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
[THIS AGREEMENT CONTINUES ON THE NEXT PAGE.]
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
THE MONEY STORE INC.
By: /S/ Harry Puglisi
Harry Puglisi
Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
SCHEDULE I hereto
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
SALOMON BROTHERS INC
By: BEAR, STEARNS & CO. INC.
By:/s/ Fred Khedouri
Fred Khedouri
Senior Managing Director
<PAGE>
SCHEDULE IA
Underwriting Agreement dated April 10, 1997
Registration Statement No. 333-24807
Underwriters: Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Prudential Securities Incorporated
Salomon Brothers Inc
Address of Underwriters: c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Title, Purchase Price and Description of Notes:
Title: 8.05% Senior Notes due 2002
Principal amount: $175,000,000
Date of Maturity: April 15, 2002
Interest Payment Dates: April 15 and October 15 of each year,
commencing October 15, 1997
Purchase price: 99.40%; payable in federal (same day) funds, by wire
transfer to an account previously designated to the Underwriters by the
Company.
Sinking fund provisions: There will be no sinking fund payments.
Redemption provisions: The Notes are not redeemable prior to maturity.
Other provisions:
Closing Date, Time and Location: April 15, 1997, 10:00 a.m., New York City
time, Office of Stroock & Stroock & Lavan
LLP, 180 Maiden Lane, New York, New York
10038-4982.
Listing: Not applicable.
Additional items to be covered by the letter from KPMG Peat Marwick LLP
delivered pursuant to Section 5(f):
<PAGE>
SCHEDULE IB
Underwriting Agreement dated April 10, 1997
Registration Statement No. 333-24807
Underwriters: Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Prudential Securities Incorporated
Salomon Brothers Inc
Address of Underwriters: c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Title, Purchase Price and Description of Notes:
Title: 8.375% Senior Notes due 2004
Principal amount: $125,000,000
Date of Maturity: April 15, 2004
Interest Payment Dates: April 15 and October 15 of each year,
commencing October 15, 1997
Purchase price: 99.375%; payable in federal (same day) funds, by wire
transfer to an account previously designated to the Underwriters by the
Company.
Sinking fund provisions: There will be no sinking fund payments.
Redemption provisions: The Notes are not redeemable prior to maturity.
Other provisions:
Closing Date, Time and Location: April 15, 1997, 10:00 a.m., New York City
time, Office of Stroock & Stroock & Lavan
LLP, 180 Maiden Lane, New York, New York
10038-4982.
Listing: Not applicable.
Additional items to be covered by the letter from KPMG Peat Marwick LLP
delivered pursuant to Section 5(f):
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount of Five Year Notes Principal Amount of Seven Year Notes
UNDERWRITERS to be Purchased to be Purchased
<S> <C> <C>
Bear, Stearns & Co. Inc. $43,750,000 $31,250,000
Lehman Brothers Inc. 43,750,000 31,250,000
Prudential Securities Incorporated 43,750,000 31,250,000
Salomon Brothers Inc 43,750,000 31,250,000
TOTAL $175,000,000 $125,000,000
============ ============
</TABLE>
<PAGE>
EXHIBIT A
FORM OF OPINION OF ERIC R. ELWIN, ESQ. PURSUANT TO SECTION 5(B) OF THE
UNDERWRITING AGREEMENT
1. The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of New Jersey.
2. Each of the subsidiaries of the Company listed on Exhibit __
hereto (the "Material Subsidiaries") has been duly incorporated and is
validly existing and in good standing under the laws of its
jurisdiction of incorporation.
3. The Company and each of the Material Subsidiaries is duly
qualified and in good standing as a foreign corporation in each state
listed on Exhibit ___ hereto (except as otherwise indicated on Exhibit
___ hereto) and (ii) in each other jurisdiction where each such entity
owns or leases real property or where the conduct of its business
requires such qualification, except where the failure to be so
qualified or in good standing will not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
4. The Company has all requisite corporate power to execute and
deliver each of this Agreement and the Indenture and to carry out all
the terms and provisions hereof and thereof to be carried out by it,
and to carry on its business and own or lease its real property as
described in the Registration Statement or Prospectus.
5. Each Material Subsidiary has all requisite corporate power to
execute and deliver the Senior Guaranty Agreement and to carry out all
the terms and provisions thereof, and to carry on its business and own
or lease its real property as described in the Registration Statement
and the Prospectus.
6. The Company has authorized capital stock as set forth in the
Final Prospectus under the caption "Capitalization"; all of the issued
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable and were not
issued in violation of or subject to any preemptive or other rights to
subscribe for or purchase securities.
7. The issued shares of capital stock of each Material Subsidiary
have been duly authorized and validly issued, are fully paid and
nonassessable, and are owned beneficially directly by the Company free
and clear of any perfected security interests or any other security
interests, liens, encumbrances or claims.
8. The execution and delivery of the Underwriting Agreement, the
Indenture and the Notes and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate action of the Company and each of the Underwriting
Agreement and the Indenture has been duly executed and delivered by
the Company.
9. The execution and delivery of the Senior Guaranty Agreement
has been duly authorized by all necessary corporate action of each of
the Material Subsidiaries and the Senior Guaranty Agreement has been
duly executed and delivered by each of the Material Subsidiaries.
10. No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties are bound or may be affected in any material
adverse respect with regard to property, business or operations of the
Company or its subsidiaries.
11. There is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or any of
their respective properties of a character required to be described in
the Registration Statement or the Final Prospectus; and there is no
contract or other document of a character required to be described in
the Registration Statement or the Final Prospectus, or to be filed as
an exhibit to the Registration Statement, which is not described or
filed as required.
12. The execution, delivery, and performance of the Underwriting
Agreement and the Indenture and the consummation of the transactions
contemplated hereby and thereby including the sale of and issuance of
the Notes by the Company and the execution, delivery, and performance
of Senior Guaranty Agreement by the Material Subsidiaries do not and
will not (A) conflict with or result in a breach of any of the terms
and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any material agreement or instrument to
which the Company or any of its subsidiaries is a party or to which
their respective properties or assets may be bound or (B) violate or
conflict with any provision of the certificate of incorporation or
by-laws of the Company or any of its subsidiaries, or, any statute,
rule or regulation of any public, governmental or regulatory agency or
body having jurisdiction over the Company, its subsidiaries or any of
their respective properties or assets. No consent, approval,
authorization, order, registration, filing, qualification, license or
permit of or with any court or any public, governmental, or regulatory
agency or body having jurisdiction over the Company, its subsidiaries
or any of their respective properties or assets is required for the
execution, delivery and performance of the Underwriting Agreement and
the Indenture or the consummation of the transactions contemplated
hereby or thereby or the Senior Guaranty Agreement;
13. The description of the Notes which is included in the Final
Prospectus, insofar as such statements purport to summarize certain
provisions of the such Notes, provides a fair summary of such
provisions; the Indenture complies as to form in all material respects
with the requirements of the Trust Indenture Act, and the rules and
regulations of the Commission thereunder; and upon effectiveness of
the Registration Statement, will be duly qualified under the Trust
Indenture Act.
14. Insofar as statements in the Registration Statement,
Supplemented Prospectus and the Final Prospectus purport to summarize
the provisions of laws, rules, regulations, contracts, agreements,
instruments, or licenses, such statements constitute accurate
summaries in all material respects.
15. None of the Company or any of the Material Subsidiaries is in
violation or breach of, or in default with respect to, any term of its
respective articles of incorporation or bylaws. Neither the Company
nor any of the Material Subsidiaries is in violation of any federal or
state law or regulation relating to their respective lending
activities, including, without limitation, rules and regulations of
the United States Small Business Administration, rules and regulations
of the Guaranteed Student Loan Program and applicable banking laws,
rules and regulations, except for any such violation of law or
regulation which would not, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as
a whole.
16. The Company and each of its subsidiaries possesses all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses as described in the Final Prospectus, and
neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
17. The statements set forth under the subheadings "HOME EQUITY
LOANS," "COMMERCIAL LOANS," "STUDENT LOANS," "AUTO LOANS," "LOAN
FUNDING AND BORROWING ARRANGEMENTS," "REGULATION" and "ENVIRONMENTAL
POLICIES" under the heading "ITEM 1. BUSINESS" and under the heading
"ITEM 3. LEGAL PROCEEDINGS" in the Company's Annual Report on Form
10-K for the year ended December 31, 1996, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, provide a fair summary of such legal matters,
documents and proceedings.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which he is admitted upon an opinion or opinions of other
counsel of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; (B) as to matters involving the Material
Subsidiaries, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions of other
counsel of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; and (C) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company and the
Material Subsidiaries and public officials.
<PAGE>
EXHIBIT B
Form of opinion of Stroock & Stroock & Lavan
pursuant to Section 5(c) of the Underwriting Agreement
1. Each of the subsidiaries of the Company listed on Exhibit ___
hereto (the "Material Subsidiaries") that is incorporated under the
laws of the State of Delaware (the "Delaware Material Subsidiaries")
has been duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware.
2. The issued shares of capital stock of each Delaware Material
Subsidiary have been duly authorized and validly issued, are fully
paid and nonassessable and are owned, directly or indirectly,
beneficially by the Company free and clear of any perfected security
interests or any other security interests, liens, encumbrances or
claims.
3. The Company has authorized capital stock as set forth in the
Final Prospectus under the caption "Capitalization"; all of the issued
shares of capital stock of the Company have been issued in compliance
with all applicable federal securities laws and (ii) were not issued
in violation of or subject to any preemptive or other rights to
subscribe for or purchase securities (other than statutory preemptive
rights as to which we express no opinion).
4. Each Delaware Material Subsidiary has all requisite corporate
power to execute and deliver the Senior Guaranty Agreement and to
carry out all the terms and provisions thereof to be carried out by
it, and to carry on its business and own or lease its real property as
described in the Registration Statement and the Final Prospectus.
5. No legal or governmental proceedings are pending to which the
Company or any of the Material Subsidiaries is a party or to which the
property of the Company or any of the Material Subsidiaries is subject
that are required to be described in the Registration Statement or the
Final Prospectus ("Proceedings") and are not described therein; no
Proceedings have been threatened against the Company or any of the
Material Subsidiaries or with respect to any of their respective
properties; and no contract or other document is required to be
described in the Registration Statement or the Final Prospectus or to
be filed as an exhibit to the Registration Statement that is not
described therein or filed as required.
6. The execution and delivery of the Senior Guaranty Agreement
has been duly authorized by all necessary corporate action of each of
the Delaware Material Subsidiaries and the Senior Guaranty Agreement
has been duly executed and delivered by each of the Delaware Material
Subsidiaries.
7. Assuming its due authorization, execution and delivery, the
Indenture has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting the
rights of creditors now or hereafter in effect, and to equitable
principles that may limit the right to specific enforcement of
remedies); and assuming the due authorization of the Notes and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant
to the Underwriting Agreement, in the case of the Notes, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in the case
of any Contract Notes, the Notes will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of creditors now
or hereafter in effect, and to equitable principles that may limit the
right to specific enforcement of remedies).
8. The execution, delivery, and performance of the Underwriting
Agreement and the Indenture and the consummation of the transactions
contemplated hereby and thereby including the sale of and issuance of
the Notes by the Company and the execution, delivery, and performance
of Senior Guaranty Agreement by the Material Subsidiaries do not and
will not (A) conflict with or result in a breach of any of the terms
and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any agreement or instrument filed as an
exhibit to, or incorporated by reference in, the Registration
Statement or (B) violate or conflict with any provision of the
certificate of incorporation or by-laws of the Company or any of its
subsidiaries, or any statute, rule or regulation of any public,
governmental or regulatory agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties or
assets. No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any
public, governmental, or regulatory agency or body having jurisdiction
over the Company, the Material Subsidiaries or any of their respective
properties or assets is required for the execution, delivery and
performance of the Underwriting Agreement and the Indenture or the
consummation of the transactions contemplated hereby or thereby or the
Senior Guaranty Agreement, except for (1) such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by the Underwriters (as to
which such counsel need express no opinion) and (2) such as have been
made or obtained under the Act, the Exchange Act and the Trust
Indenture Act. No consent of any party to any contract or agreement
filed as an exhibit to, or incorporated by reference in, the
Registration Statement, or under the provisions of any outstanding
series of the Company's preferred stock, is required for the
execution, delivery, or performance of the Underwriting Agreement or
the Indenture.
9. No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties are bound or may be affected in any material
adverse respect with regard to property, business or operations of the
Company or its subsidiaries.
10. There is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries, of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there in no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit, which is not described or filed as required;
11. The Registration Statement is effective under the Act; any
filing of the Final Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); no
stop order suspending the effectiveness of the Registration Statement
has been issued and no order directed at any document incorporated by
reference in the Registration Statement or the Final Prospectus has
been issued, and no proceedings for that purpose have been instituted
or threatened; the Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto (other than the financial
statements and other financial and statistical information contained
therein or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Exchange Act and
the respective Rules and Regulations of the Commission thereunder.
12. The statements set forth under the subheadings "HOME EQUITY
LOANS," "COMMERCIAL LOANS," "STUDENT LOANS," "AUTO LOANS," "LOAN
FUNDING AND BORROWING ARRANGEMENTS," "REGULATION" and "ENVIRONMENTAL
POLICIES" under the heading "ITEM 1. BUSINESS" and under the heading
"ITEM 3. LEGAL PROCEEDINGS" in the Company's Annual Report on Form
10-K for the year ended December 31, 1996, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, provide a fair summary of such legal matters,
documents and proceedings.
13. The description of the Notes which is included in the
Prospectus, insofar as such statements purport to summarize certain
provisions of the such Notes, provides a fair summary of such
provisions; the Indenture complies as to form in all material respects
with the requirements of the Trust Indenture Act, and the rules and
regulations of the Commission thereunder; and upon effectiveness of
the Registration Statement, will be duly qualified under the Trust
Indenture Act.
14. Insofar as statements in the Registration Statement,
Supplemented Prospectus and the Final Prospectus purport to summarize
the provisions of laws, rules, regulations, contracts, agreements,
instruments, or licenses, such statements constitute accurate
summaries in all material respects.
15. The Company and each of its subsidiaries are, and upon sale
of the Notes will be, exempt from registration under the Investment
Company Act of 1940.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the independent certified
public accountants of the Company and yourselves at which the contents of the
Registration Statement, the Final Prospectus and any amendment thereof or
supplement thereto and related matters were discussed and, although such counsel
has not undertaken to investigate or verify independently, and does not assume
any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Final Prospectus or any amendment
thereof or supplement thereto, on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Company) such counsel has no reason to believe that
either the Registration Statement at the time it became effective (or any
amendment thereof made prior to the Closing Date, as of the date of such
amendment) contained an untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus as of the date
thereof (or any amendments thereof or supplement thereto made prior to the
Closing Date, as of the date of such amendment or such supplement) and as of the
Closing Date contained an untrue statement of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no belief or opinion with respect to the
financial statements and related notes, financial statement schedules, other
financial and statistical data and exhibits included therein or omitted
therefrom).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which he is admitted upon an opinion or opinions of other
counsel of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; (B) as to matters involving the Material
Subsidiaries, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions of other
counsel of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; and (C) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company and the
Material Subsidiaries and public officials.
<PAGE>
SCHEDULE A
GUARANTORS
As set forth in the Base Prospectus under "DESCRIPTION OF SECURITIES
- -- SUBSIDIARY GUARANTEES."
<PAGE>
SCHEDULE B
MATERIAL GUARANTORS
1. TMS MORTGAGE INC.
2. THE MONEY STORE INVESTMENT CORPORATION
3. THE MONEY STORE AUTO FINANCE INC.
<PAGE>
SCHEDULE C
MATERIAL SUBSIDIARIES
1. TMS MORTGAGE INC.
2. THE MONEY STORE INVESTMENT CORPORATION
3. THE MONEY STORE AUTO FINANCE INC.
4. TRANS-WORLD INSURANCE COMPANY
5. TMS HOME HOLDINGS, INC.
6. TMS AUTO HOLDINGS, INC.
7. TMS STUDENT HOLDINGS, INC.
8. TMS SPECIAL HOLDINGS, INC.
9. TMS SBA HOLDINGS, INC.
Exhibit 4.1
THE MONEY STORE INC.,
As Issuer,
THE CHASE MANHATTAN BANK,
As Trustee
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
As Subsidiary Guarantors
----------
Indenture
Dated as of April 15, 1997
----------
SENIOR DEBT SECURITIES
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION...............................................................2
Section 1.01. Definitions................................................2
Section 1.02. Compliance Certificates and Opinions......................12
Section 1.03. Form of Documents Delivered to Trustee....................13
Section 1.04. Notices, etc., to Trustee and Company.....................13
Section 1.05. Notice to Holders; Waiver.................................14
Section 1.06. Conflict with Trust Indenture Act.........................15
Section 1.07. Effect of Headings and Table of Contents..................15
Section 1.08. Successors and Assigns....................................15
Section 1.09. Separability Clause.......................................15
Section 1.10. Benefits of Indenture.....................................15
Section 1.11. Governing Law.............................................15
Section 1.12. Legal Holidays............................................15
Section 1.13. No Security Interest Created..............................16
Section 1.14. Liability Solely Corporate................................16
Section 1.15. Counterparts..............................................17
ARTICLE TWO
DEBT SECURITY FORMS......................................................17
Section 2.01. Forms Generally...........................................17
Section 2.02. Form of Trustee's Certificate of
Authentication.....................................18
Section 2.03. Securities in Global Form.................................18
ARTICLE THREE
THE DEBT SECURITIES......................................................18
Section 3.01. Amount Unlimited; Issuable in Series......................18
Section 3.02. Denominations.............................................23
Section 3.03. Execution, Authentication, Delivery and
Dating.............................................23
Section 3.04. Temporary Debt Securities; Exchange of
Temporary Global Notes for Definitive Bearer
Securities.........................................25
Section 3.05. Registration, Transfer and Exchange.......................32
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt
Securities.........................................34
Section 3.07. Payment of Interest; Interest Rights
Preserved..........................................35
Section 3.08. Cancellation..............................................37
Section 3.09. Computation of Interest...................................38
Section 3.10. Currency of Payments in Respect of Debt
Securities.........................................38
Section 3.11. Judgments.................................................42
Section 3.12. Exchange Upon Default.....................................42
Section 3.13. CUSIP Numbers.............................................42
ARTICLE FOUR
SATISFACTION AND DISCHARGE.............................................43
Section 4.01. Satisfaction and Discharge of Indenture..................43
Section 4.02. Application of Trust Money...............................44
ARTICLE FIVE
REMEDIES...............................................................45
Section 5.01. Events of Default.......................................45
Section 5.02. Acceleration of Maturity; Rescission and
Annulment........................................46
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee...........................47
Section 5.04. Trustee May File Proofs of Claim........................48
Section 5.05. Trustee May Enforce Claims Without
Possession of Debt Securities....................49
Section 5.06. Application of Money Collected..........................49
Section 5.07. Limitation on Suits.....................................50
Section 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest.................51
Section 5.09. Restoration of Rights and Remedies......................51
Section 5.10. Rights and Remedies Cumulative..........................51
Section 5.11. Delay or Omission Not Waiver............................51
Section 5.12. Control by Holders......................................51
Section 5.13. Waiver of Past Defaults.................................52
Section 5.14. Undertaking for Costs...................................52
Section 5.15. Waiver of Stay or Extension Laws........................53
ARTICLE SIX
THE TRUSTEE............................................................53
Section 6.01. Certain Duties and Responsibilities.....................53
Section 6.02. Notice of Defaults......................................54
Section 6.03. Certain Rights of Trustee...............................55
Section 6.04. Not Responsible for Recitals or Issuance of
Debt Securities..................................56
Section 6.05. May Hold Debt Securities................................56
Section 6.06. Money Held in Trust.....................................57
Section 6.07. Compensation and Reimbursement..........................57
Section 6.08. Disqualification; Conflicting Interests.................58
Section 6.09. Corporate Trustee Required; Eligibility.................58
Section 6.10. Resignation and Removal; Appointment of Successor.......58
Section 6.11. Acceptance of Appointment by Successor..................60
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business...........................61
Section 6.13. Preferential Collection of Claims Against Company.......61
Section 6.14. Appointment of Authenticating Agent.....................61
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY......................63
Section 7.01. Company to Furnish Trustee Names and
Addresses of Holders.............................63
Section 7.02. Preservation of Information; Communication
to Holders.......................................64
Section 7.03. Reports by Trustee......................................65
Section 7.04. Reports by Company......................................65
ARTICLE EIGHT
CONCERNING THE HOLDERS.................................................66
Section 8.01. Acts of Holders.........................................66
Section 8.02. Proof of Ownership; Proof of Execution of
Instruments by Holder............................67
Section 8.03. Persons Deemed Owners...................................67
Section 8.04. Revocation of Consents; Future Holders Bound............68
ARTICLE NINE
HOLDERS' MEETINGS......................................................68
Section 9.01. Purposes of Meetings....................................68
Section 9.02. Call of Meetings by Trustee.............................69
Section 9.03. Call of Meetings by Company or Holders..................69
Section 9.04. Qualifications for Voting...............................69
Section 9.05. Regulations.............................................70
Section 9.06. Voting .................................................70
Section 9.07. No Delay of Rights by Meeting...........................71
ARTICLE TEN
INTENTIONALLY OMITTED..................................................71
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES................................................71
Section 11.01. Supplemental Indentures Without Consent of Holders.....71
Section 11.02. Supplemental Indentures With Consent of Holders........73
Section 11.03. Execution of Supplemental Indentures...................74
Section 11.04. Effect of Supplemental Indenture.......................74
Section 11.05. Conformity with Trust Indenture Act....................74
Section 11.06. Reference in Debt Securities to
Supplemental Indentures............................74
Section 11.07. Notice of Supplemental Indenture.......................75
ARTICLE TWELVE
COVENANTS.............................................................75
Section 12.01. Payment of Principal, Premium and Interest............75
Section 12.02. Officer's Certificate as to Default...................76
Section 12.03. Maintenance of Office or Agency.......................76
Section 12.04. Money for Debt Securities; Payments to Be
Held in Trust...................................77
Section 12.05. Corporate Existence...................................79
Section 12.06. Purchase of Debt Securities by Company................79
Section 12.07. INTENTIONALLY OMITTED..................................79
Section 12.08. INTENTIONALLY OMITTED..................................79
Section 12.09. Waiver of Certain Covenants...........................79
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES.........................................80
Section 13.01. Applicability of Article...............................80
Section 13.02. Election to Redeem; Notice to Trustee.................80
Section 13.03. Selection by Trustee of Debt Securities to
Be Redeemed.....................................80
Section 13.04. Notice of Redemption..................................81
Section 13.05. Deposit of Redemption Price...........................82
Section 13.06. Debt Securities Payable on Redemption Date............82
Section 13.07. Debt Securities Redeemed in Part......................83
ARTICLE FOURTEEN
SINKING FUNDS.........................................................83
Section 14.01. Applicability of Article..............................83
Section 14.02. Satisfaction of Mandatory Sinking Fund
Payments with Debt Securities..................84
Section 14.03. Redemption of Debt Securities for Sinking Fund........84
ARTICLE FIFTEEN
DEFEASANCE............................................................86
Section 15.01. Applicability of Article..............................86
Section 15.02. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations.........................86
Section 15.03. Deposited Moneys and U.S. Government
Obligations to Be Held in Trust.................88
Section 15.04. Repayment to Company..................................88
ARTICLE SIXTEEN
GUARANTEES............................................................88
Section 16.01. Guarantees............................................88
Section 16.02. Execution and Delivery of Guarantees..................90
Section 16.03. Limitation on Subsidiary Guarantors' Liability.......90
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of April 15, 1997
TRUST INDENTURE ACT SECTION INDENTURE SECTION
ss.310 (a) (1).......................................... 6.09
(a) (2).......................................... 6.09
(a) (3).......................................... Not Applicable
(a) (4).......................................... Not Applicable
(a) (5).......................................... 6.09
(b).............................................. 6.08, 6.09, 6.10
(c).............................................. Not Applicable
ss. 311 (a).............................................. 6.13
(b).............................................. 6.13
(c).............................................. Not Applicable
ss.312 (a).............................................. 7.01, 7.02(a)
(b).............................................. 7.02(b)
(c).............................................. 7.02(c)
ss.313 (a).............................................. 7.03
(b).............................................. 7.03
(c).............................................. 7.03
(d).............................................. 7.03
ss.314 (a).............................................. 7.04, 12.02
(b).............................................. Not Applicable
(c) (1).......................................... 1.02
(c) (2).......................................... 1.02
(c) (3).......................................... Not Applicable
(d).............................................. Not Applicable
(e).............................................. 1.02
ss.315 (a).............................................. 6.01(a), 6.01(c)
(b).............................................. 6.02
(c).............................................. 6.01(b)
(d) (1).......................................... 6.01(c)(1)
(d) (2).......................................... 6.01(c)(2)
(d) (3).......................................... 6.01(c)(3)
(e).............................................. 5.14
ss.316 (a) (1) (A)...................................... 5.02, 5.12
(a) (1) (B)...................................... 5.13
(a) (2).......................................... Not Applicable
(b).............................................. 5.08
(c).............................................. Not Applicable
ss.317 (a) (1).......................................... 5.03
(a) (2).......................................... 5.04
(b).............................................. 12.04
ss.318 .............................................. 1.06
---------------
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
<PAGE>
INDENTURE dated as of April 15, 1997, among THE MONEY STORE INC., a New
Jersey corporation (hereinafter called the "Company"), having its principal
executive office at 2840 Morris Avenue, Union, New Jersey 07083, each of the
Subsidiary Guarantors (as hereinafter defined) each having its principal
executive offices at 2840 Morris Avenue, Union, New Jersey 07083, and THE CHASE
MANHATTAN BANK, a New York banking corporation, as trustee (hereinafter called
the "Trustee"), having its Corporate Trust Office at 450 West 33rd Street, New
York, New York 10001.
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
debentures, notes, bonds or other evidences of indebtedness (herein generally
called the "Debt Securities"), to be issued in one or more series, as in this
Indenture provided.
The Company, directly or indirectly, owns as of the date hereof,
beneficially and of record 100% of the capital stock of the Subsidiary
Guarantors; the Company and the Subsidiary Guarantors are members of the same
consolidated group of companies; the Subsidiary Guarantors will derive direct
and indirect economic benefit from the issuance of the Debt Securities;
accordingly, each Subsidiary Guarantor has duly authorized the execution and
delivery of this Indenture to provide for its full and unconditional and joint
and several guarantee of the Debt Securities on the terms and conditions set
forth herein.
All things necessary to make the Debt Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, to make the Guarantees (as
hereinafter defined) of each of the Subsidiary Guarantors, when executed by the
respective Subsidiary Guarantors and endorsed on the Debt Securities, the valid
obligations of the respective Subsidiary Guarantors, and to make this Indenture
a valid agreement of the Company and each Subsidiary Guarantor in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. DEFINITIONS.
For all purposes of this Indenture, 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, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United
States of America at the date of such computation; and
(4) 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.
Certain terms, used principally in Article Three or Article Six, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 8.01.
"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" has the meaning specified in
Section 6.14.
"Authorized Newspaper" means a newspaper or financial journal
in an official language of the country of publication customarily
published at least once a day, and customarily published for at least
five days in each calendar week, and of general circulation in the
place in connection with which the term is used or in the financial
community of such place. Where successive publications are required to
be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting
the foregoing requirements and in each case on any Business Day in such
city.
"Bearer Security" means any Debt Security (with or without
Coupons), in the form established pursuant to Section 2.01, which is
payable to bearer (including any Global Note payable to bearer) and
title to which passes by delivery only, but does not include any
Coupons.
"Board of Directors," when used with respect to the Company or
a Subsidiary Guarantor, means either the board of directors, or any
committee of that board, of the Company or a Subsidiary Guarantor, as
the case may be, duly authorized to act hereunder or any director or
directors and/or officer or officers of the Company or a Subsidiary
Guarantor, as applicable, to whom that board or committee shall have
delegated its authority.
"Board Resolution," when used with respect to the Company or a
Subsidiary Guarantor, means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or a Subsidiary
Guarantor, as the case may be, to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in
the Debt Securities means any day which is not a Saturday, a Sunday or
a day on which banking institutions or trust companies in that Place of
Payment or other location are authorized or obligated by law to close,
except as otherwise specified pursuant to Section 3.01.
"CEDEL" means Cedel Bank, societe anonyme.
"Code" means the Internal Revenue Code of 1986, as amended and
as in effect on the date hereof.
"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 instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Depositary" has the meaning specified in
Section 3.04(b).
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by any two
of the Chairman, a Vice Chairman, the President, the Chief Financial
Officer, an Executive Vice President, any Vice President, the
Treasurer, the Controller or the Secretary of the Company and delivered
to the Trustee.
"Component Currency" has the meaning specified in
Section 3.10(i).
"Conversion Date" has the meaning specified in Section
3.10(e).
"Conversion Event" means the cessation of (i) a Foreign
Currency to be used both by the government of the country which issued
such Currency and for the settlement of transactions by public
institutions of or within the international banking community, (ii) the
ECU to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Communities or (iii) any Currency Unit other than the ECU to
be used for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date of
execution of this instrument is located at 450 West 33rd Street, 15th
Floor, New York, New York 10001.
"Corporation" includes corporations, associations, companies
(including joint stock companies and limited liability companies) and
business trusts.
"Coupon" means any interest coupon appertaining to any
Debt Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency or
Currency Unit.
"Currency Determination Agent" means the New York Clearing
House bank, if any, from time to time selected by the Company pursuant
to Section 3.01; PROVIDED that such agent shall accept such appointment
in writing and the terms of such appointment shall be acceptable to the
Company and shall, in the opinion of the Company and the Trustee at the
time of such appointment, require such agent to make the determinations
required by this Indenture by a method consistent with the method
provided in this Indenture for the making of such decision or
determination.
"Currency Unit" means a composite currency or currency unit
the value of which is determined by reference to the value of the
currencies of any group of countries.
"Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Debt Securities
(including any Global Notes) authenticated and delivered under this
Indenture.
"Defaulted Interest" has the meaning specified in
Section 3.07.
"Discharged" has the meaning specified in Section
15.02.
"Discount Security" means any Debt Security which is issued
with "original issue discount" within the meaning of Section 1273(a) of
the Code and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time of payment is
legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the
meaning specified in Section 3.10(g).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section
3.10(i).
"Euro-clear Operator" means Morgan Guaranty Trust Company of
New York, Brussels office, or its successor as operator of the
Euro-clear System.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the
European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in
Section 5.01.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Exchange Date" has the meaning specified in Section
3.04(b).
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar, Foreign Currency or Currency Unit amounts of principal,
premium, if any, and any interest respectively (on an aggregate basis
and on the basis of a Debt Security having the lowest denomination
principal amount determined in accordance with Section 3.02 in the
relevant Currency or Currency Unit), payable on the basis of such
Market Exchange Rate signed by the Treasurer or any Assistant Treasurer
of the Company.
"Fixed Rate Security" means a Debt Security which provides for
the payment of interest at a fixed rate.
"Floating Rate Security" means a Debt Security which provides
for the payment of interest at a variable rate determined periodically
by reference to an interest rate index or any other index specified
pursuant to Section 3.01.
"Foreign Currency" means a currency issued by the government
of any country other than the United States or a composite currency or
currency unit the value of which is determined by reference to the
values of the currencies of any group of countries.
"Global Note" means a Registered or Bearer Security evidencing
all or part of a series of Debt Securities, including, without
limitation, any temporary or permanent Global Note.
"Guarantor Obligations" shall have the meaning
provided in Section 16.01.
"Guarantor Request" or "Guarantor Order" means a written
request or order signed in the name of one or more of the Subsidiary
Guarantors by one officer of each of the applicable Subsidiary
Guarantors. and delivered to the Trustee.
"Holder" means, with respect to a Registered Security, the
Registered Holder, and with respect to a Bearer Security or a Coupon,
the bearer thereof.
"Indebtedness" means (1) any liability of any Person (a) for
borrowed money, or (b) evidenced by a bond, note, debenture or similar
instrument (including purchase money obligations but excluding Trade
Payables), or (c) for the payment of money relating to a lease that is
required to be classified as a capitalized lease obligation in
accordance with generally accepted accounting principles, or (d) with
respect to preferred or preference stock of a Subsidiary of the Company
held by Persons other than the Company or a Subsidiary of the Company;
(2) any liability of others described in the preceding clause (1) that
the Person has guaranteed, that is recourse to such Person or that is
otherwise its legal liability; and (3) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (1) and (2) above.
"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, unless the context otherwise requires, shall
include the terms of a particular series of Debt Securities as
established pursuant to Section 3.01.
The term "interest," when used with respect to a Discount
Security which by its terms pays interest only after Maturity, means
interest payable after Maturity, and, when used with respect to a
Bearer Security, includes any additional amounts payable on such Bearer
Security, if so provided pursuant to Section 3.01.
"Interest Payment Date" with respect to any Debt Security
means the Stated Maturity of an installment of interest on such Debt
Security.
"Market Exchange Rate" means (i) for any conversion involving
a Currency Unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant Currency Unit and
Dollars or such Foreign Currency calculated for noon New York time, on
the Valuation Date by the method specified pursuant to Section 3.01 for
the securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon (New York City time) buying
rate for such Foreign Currency for cable transfers quoted in New York
City as certified for customs purposes by the Federal Reserve Bank of
New York and (iii) for any conversion of one Foreign Currency into
Dollars or another Foreign Currency, the spot rate at noon local time
in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which
conversion is being made from major banks located in either New York
City, London or any other principal market for Dollars or such
purchased Foreign Currency. In the event of the unavailability of any
of the exchange rates provided for in the foregoing clauses (i), (ii)
and (iii), the Company shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of
New York as of the most recent available date, or quotations from one
or more major banks in New York City, London or other principal market
for such Currency or Currency Unit in question, or such other
quotations as the Company shall deem appropriate, in its sole
discretion and without liability on its part. Unless otherwise
specified by the Currency Determination Agent, if any, or if there
shall not be a Currency Determination Agent, then by the Trustee, if
there is more than one market for dealing in any Currency or Currency
Unit by reason of foreign exchange regulations or otherwise, the market
to be used in respect of such Currency or Currency Unit shall be that
as determined by the Currency Determination Agent, or if there shall
not be a Currency Determination Agent, then by the Trustee, in its sole
discretion and without liability on its part, upon which a nonresident
issuer of securities designated in such Currency or Currency Unit would
purchase such Currency or Currency Unit in order to make payments in
respect of such securities.
"Maturity" when used with respect to any Debt Security means
the date on which the principal of such Debt 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, repayment at the option of the Holder thereof or
otherwise.
"Officers' Certificate" means a certificate signed by any two
of the Chairman, a Vice Chairman, the President, the Chief Financial
Officer, an Executive Vice President, any Vice President, the
Treasurer, the Controller or the Secretary of the Company or a
Subsidiary Guarantor, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to the Company or a Subsidiary Guarantor (including an
employee of the Company or a Subsidiary Guarantor), as the case may be,
and who shall be reasonably satisfactory to the Trustee, which is
delivered to the Trustee.
"Outstanding" when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities with respect to which 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 Debt
Securities and any Coupons thereto pertaining; PROVIDED, HOWEVER, that
if such Debt 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; and
(iii) Debt Securities which have been paid pursuant to Section
3.06 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Debt Securities in respect of which there shall have been
presented to the Trustee proof reasonably satisfactory to it that such
Debt Securities are held by a bona fide purchaser in whose hands such
Debt Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite principal amount of Debt Securities Outstanding have
performed any Act hereunder, Debt Securities owned by the Company, any
Subsidiary Guarantor or any other obligor upon the Debt Securities or
any Affiliate of the Company, any Subsidiary Guarantor or of such other
obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying
upon any such Act, only Debt Securities which a Responsible Officer of
the Trustee knows to be so owned shall be so disregarded. Debt
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 to act with respect to such Debt
Securities and that the pledgee is not the Company, a Subsidiary
Guarantor or any other obligor upon the Debt Securities or any
Affiliate of the Company, a Subsidiary Guarantor or of such other
obligor. In determining whether the Holders of the requisite principal
amount of Outstanding Debt Securities have performed any Act hereunder,
the principal amount of a Discount Security that shall be deemed to be
Outstanding for such purpose shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02 and the principal amount of a Debt
Security denominated in a Foreign Currency that shall be deemed to be
Outstanding for such purpose shall be the amount calculated pursuant to
Section 3.10(k).
"Overdue Rate", when used with respect to any series of the
Debt Securities, means the rate designated as such in or pursuant to
the Board Resolution or the supplemental indenture, as the case may be,
relating to such series as contemplated by Section 3.01.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt
Securities on behalf of the Company.
"permanent Global Note" shall have the meaning given such term
in Section 3.04(b).
"Person" means any individual, Corporation, partnership, joint
venture, association, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the principal
of (and premium, if any) and interest on the Debt Securities of that
series are payable as specified pursuant to Section 3.01.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same
debt as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and
delivered under Section 3.06 in lieu of a mutilated, lost, destroyed or
stolen Debt Security or a Debt Security to which a mutilated, lost,
destroyed or stolen Coupon appertains shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Debt Security or
the Debt Security to which the mutilated, lost, destroyed or stolen
Coupon appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any
Debt Security pursuant to this Indenture which, in the case of a
Floating Rate Security, unless otherwise specified pursuant to Section
3.01, shall be an Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security,
the amount of the principal thereof that would be due and payable as of
the Redemption Date upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02 or any other redemption specified
pursuant to Section 3.01, and in the case of any other Debt Security,
the principal amount thereof, plus, in each case, premium, if any, and
accrued and unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form
established pursuant to Section 2.01 which is registered as to
principal and interest in the Security Register.
"Regular Record Date" for the interest payable on the
Registered Securities of any series on any Interest Payment Date means
the date specified for the purpose pursuant to Section 3.01 for such
Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any officer of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05(a).
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
3.07(c)(i).
"Specified Amount" has the meaning specified in
Section 3.10(i).
"Stated Maturity" when used with respect to any Debt Security
or any installment of principal thereof or premium thereon or interest
thereon means the date specified in such Debt Security or the Coupon,
if any, representing such installment of interest, as the date on which
the principal of such Debt Security or such installment of principal,
premium or interest is due and payable.
"Subsidiary" means any Corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation,
irrespective of whether or not, at the time, stock of any other class
or classes of such Corporation shall have or might have voting power by
reason of the happening of any contingency, is at the time, directly or
indirectly, owned or controlled by the Company or by one or more
Subsidiaries thereof, or by the Company and one or more Subsidiaries
thereof.
"Subsidiary Guarantees" means any unsecured guarantees of the
Subsidiary Guarantors endorsed on a Debt Security authenticated and
delivered pursuant to this Indenture and shall include the guarantees
set forth in Section 16.01.
"Subsidiary Guarantor" means each of (i) The Money Store/D.C.
Inc., The Money Store/Kentucky Inc., The Money Store/Minnesota Inc.,
The Money Store Auto Finance Inc., ClassNotes Inc., Dyna-Mark, Inc.,
Equity Insurance Agency, Inc., Major Brokerage Co., Inc., Princeton
Escrow, The Money Store Home Equity Corp., The Money Store Investment
Corporation, The Money Store of New York Inc., The Commerce Group, The
Money Store Commercial Mortgage Inc., The Money Store Service Corp.,
TMS Mortgage Inc., The Money Store U.K. Inc., The Money Store Realty
Inc. and TMS Venture Holdings, Inc. and (ii) any successor of any of
the foregoing, in each case, until such Subsidiary Guarantor ceases to
be such in accordance with the terms hereof.
"temporary Global Note" shall have the meaning given such term
in Section 3.04(b).
"Trade Payables" means accounts payable or any other
indebtedness or monetary obligations to trade creditors created or
assumed in the ordinary course of business in connection with the
obtaining of materials or services.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
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 Debt Securities of any
series shall mean the Trustee with respect to Debt Securities of such
series.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this instrument was
executed, except as provided in Section 11.05; PROVIDED, HOWEVER, that
in the event the Trust Indenture Act is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act as so amended.
"United States" means the United States of America
(including the States and the District of Columbia), and its
possessions, which include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
"U.S. Depositary" means a clearing agency registered under the
Exchange Act or any successor thereto, which shall in either case be
designated by the Company pursuant to Section 3.01 until a successor
U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall
mean or include each Person who is then a U.S. Depositary hereunder,
and if at any time there is more than one such Person, "U.S.
Depositary" as used with respect to the Debt Securities of any series
shall mean the U.S. Depositary with respect to the Debt Securities of
that series.
"U.S. Government Obligations" has the meaning
specified in Section 15.02.
"U.S. Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized
in or under the laws of the United States, or an estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section
3.10(d).
"Vice President" includes with respect to the Company, a
Subsidiary Guarantor and the Trustee, any Vice President of the
Company, a Subsidiary Guarantor or the Trustee, as the case may be,
whether or not designated by a number or word or words added before or
after the title "Vice President".
"Wholly-Owned Subsidiary" means a Subsidiary of which all of
the outstanding voting stock (other than directors' qualifying shares)
is at the time, directly or indirectly, owned by the Company, or by one
or more Wholly-Owned Subsidiaries of the Company or by the Company and
one or more Wholly-Owned Subsidiaries of the Company.
Section 1.02. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company or a Subsidiary Guarantor to
the Trustee to take any action under any provision of this Indenture, the
Company or the Subsidiary Guarantor, as the case may be, shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, 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 Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture (other
than certificates provided pursuant to Section 12.02) shall include:
(1) a statement that each individual signing such Officers'
Certificate or Opinion of Counsel has read such covenant or condition
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 Officers' Certificate or Opinion of Counsel 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 as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
Section 1.03. 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 an officer of the Company or a Subsidiary
Guarantor 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
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the Subsidiary Guarantor, as the case may be, stating that the
information with respect to such factual matters is in the possession of the
Company or the Subsidiary Guarantor, as the case may be, 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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or a
Subsidiary Guarantor shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration.
(2) the Company or a Subsidiary Guarantor 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 airmail postage prepaid if sent from
outside the United States, to the Company or the Subsidiary Guarantor
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture, to the attention of its Treasurer,
or at any other address previously furnished in writing to the Trustee
by the Company or the Subsidiary Guarantor, as applicable.
Any such Act or other document shall be in the English language, except
that any published notice may be in an official language of the country of
publication.
Section 1.05. NOTICE TO HOLDERS; WAIVER.
When this Indenture provides for notice to Holders of any event, (1) such
notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to such Registered Holders as their names and addresses appear in the
Security Register, within the time prescribed, and (2) such notice shall be
sufficiently given to Holders of Bearer Securities or Coupons (unless otherwise
herein expressly provided) if published at least twice in an Authorized
Newspaper or Newspapers in The City of New York and, if Debt Securities of such
series are then listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, in a
daily newspaper or financial journal in London or Luxembourg or in such other
city or cities specified pursuant to Section 3.01 or in any Debt Security on
Business Days, the first such publication to be not earlier than the earliest
date and not later than the latest date prescribed for the giving of such
notice; PROVIDED, HOWEVER, that, in any case, any notice to Holders of Floating
Rate Securities regarding the determination of a periodic rate of interest, if
such notice is required pursuant to Section 3.01, shall be sufficiently given if
given in the manner specified pursuant to Section 3.01.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers or
by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance on such waiver. 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, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
Section 1.06. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such duties imposed by the Trust Indenture Act shall
control.
Section 1.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and in the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.08. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the parties hereto shall
bind their respective successors and assigns and inure to the benefit of their
permitted successors and assigns, whether so expressed or not.
Section 1.09. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debt Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.10. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debt Securities, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent and their successors hereunder, and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. GOVERNING LAW.
This Indenture, the Debt Securities, the Coupons and, if issued, the
Subsidiary Guarantees shall be deemed to be contracts made and to be performed
entirely in the State of New York, and for all purposes shall be governed by and
construed in accordance with the laws of said State without regard to the
conflicts of law rules of said State.
Section 1.12. LEGAL HOLIDAYS.
Unless otherwise specified pursuant to Section 3.01 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then (notwithstanding
any other provision of this Indenture or of the Debt Securities or Coupons)
payment of principal (and premium, if any) or interest 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, Redemption Date or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.
Section 1.13. NO SECURITY INTEREST CREATED.
Nothing in this Indenture or in the Debt Securities, Coupons or, if issued,
the Subsidiary Guarantees, express or implied, shall be construed to constitute
a security interest or mortgage or other pledge of collateral under the Uniform
Commercial Code or similar legislation or real property laws, as now or
hereafter enacted and in effect in any jurisdiction where property of the
Company or its Subsidiaries is or may be located.
Section 1.14. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of (or premium,
if any) or the interest on any Debt Securities or Coupons, or any part thereof,
or of the indebtedness represented thereby, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, or against any
stockholder, officer or director, as such, past, present or future, of the
Company or any Subsidiary Guarantor (or any incorporator, stockholder, officer
or director of any predecessor or successor corporation), either directly or
through the Company or any Subsidiary Guarantor (or any such predecessor or
successor corporation), whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and all the Debt
Securities, Coupons and Subsidiary Guarantees are solely corporate obligations,
and that no personal liability whatsoever shall attach to, or be incurred by,
any such incorporator, stockholder, officer or director, past, present or
future, of the Company or any Subsidiary Guarantor (or any incorporator,
stockholder, officer or director of any such predecessor or successor
corporation), either directly or indirectly through the Company or any
Subsidiary Guarantor or any such predecessor or successor corporation, because
of the indebtedness hereby authorized or under or by reason of any of the
obligations, covenants, promises or agreements contained in this Indenture or in
any of the Debt Securities, Coupons or Subsidiary Guarantees or to be implied
herefrom or therefrom; and that any such personal liability is hereby expressly
waived and released as a condition of, and as part of the consideration for, the
execution of this Indenture and the issue of Debt Securities; PROVIDED, HOWEVER,
that nothing herein or in the Debt Securities, Coupons or the Subsidiary
Guarantees contained shall be taken to prevent recourse to and the enforcement
of the liability, if any, of any stockholder or subscriber to capital stock upon
or in respect of the shares of capital stock not fully paid.
Section 1.15. COUNTERPARTS.
This Indenture may be executed in counterparts (including executed
counterparts delivered and exchanged by facsimile transmission) each of which
shall be deemed to constitute one and the same instrument.
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.01. FORMS GENERALLY.
The Debt Securities, the Coupons, if any, and the Subsidiary Guarantees, if
any, of each series shall be substantially in one of the forms (including global
form) established in or pursuant to a Board Resolution of the Company or, with
respect to the Subsidiary Guarantees, the Subsidiary Guarantors, one or more
indentures supplemental hereto, and shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule
or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which any series of the Debt Securities may be listed, or
to conform to usage, all as determined by the officers executing such Debt
Securities and Coupons, including the Subsidiary Guarantees, if any, as
conclusively evidenced by their execution of such Debt Securities and Coupons,
including the Subsidiary Guarantees, if any. If the form of a series of Debt
Securities, including the Subsidiary Guarantees, if any, or Coupons (or any
Global Note) is established in or pursuant to a Board Resolution of the Company
or the Subsidiary Guarantors, as the case may be, a copy of such Board
Resolution shall be delivered to the Trustee, together with an Officers'
Certificate setting forth the form of such series, at or prior to the delivery
of the Company Order contemplated by Section 3.03 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons . Any form
of Debt Security, Coupon , Global Note or Subsidiary Guarantees, if applicable,
approved by or pursuant to a Board Resolution shall be reasonably acceptable as
to form to the Trustee, such acceptance to be evidenced by the Trustee's
authentication of the Debt Securities, Coupons, Global Notes or Subsidiary
Guarantees, if applicable, in such form or by a certificate signed by a
Responsible Officer of the Trustee delivered to the Company.
Unless otherwise specified as contemplated by Section 3.01, Debt Securities
in bearer form (other than in global form) shall have Coupons attached.
The definitive Debt Securities, Coupons, if any, and Subsidiary Guarantees,
if any, of each series shall be printed, lithographed or engraved or produced by
any combination of these methods on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such Debt
Securities, Coupons and Subsidiary Guarantees, if any, as conclusively evidenced
by their execution of such Debt Securities, Coupons and Subsidiary Guarantees,
if any.
Section 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication to be borne by the
Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein issued
under the within mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By ___________________________
Authorized Officer
Section 2.03. SECURITIES IN GLOBAL FORM.
If any Debt Security of a series is issuable in global form, the Global
Note so issued may provide that it shall represent the aggregate amount of
Outstanding Debt Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced or increased to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note. Any
instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section 1.02.
Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution of the Company
and (subject to Section 3.03) set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of such series from all other
series of Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of
the Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debt Securities of such series
pursuant to Sections 3.04, 3.05, 3.06, 11.06 or 13.07);
(3) the percentage of the principal amount at which the Debt
Securities will be issued and, if other than the principal amount
thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the Maturity thereof or the method by
which such portion shall be determined;
(4) the date or dates on which or periods during which the
Debt Securities of the series may be issued, and the date or dates (or
the method of determination thereof) on which the principal of (and
premium, if any, on) the Debt Securities of such series are or may be
payable (which, if so provided in such Board Resolution or supplemental
indenture, may be determined by the Company from time to time and set
forth in the Debt Securities of the series issued from time to time);
(5) the rate or rates (or the method of determination thereof)
at which the Debt Securities of the series shall bear interest, if any,
and the dates from which such interest shall accrue (which, in either
case or both, if so provided in such Board Resolution or supplemental
indenture, may be determined by the Company from time to time and set
forth in the Debt Securities of the series issued from time to time);
and the Interest Payment Dates on which such interest shall be payable
(or the method of determination thereof), and, in the case of
Registered Securities, the Regular Record Dates for the interest
payable on such Interest Payment Dates and, in the case of Floating
Rate Securities, the notice, if any, to Holders regarding the
determination of interest and the manner of giving such notice;
(6) the place or places where the principal of (and premium,
if any) and interest on Debt Securities of the series shall be payable;
the extent to which, or the manner in which, any interest payable on
any Global Note on an Interest Payment Date will be paid, if other than
in the manner provided in Section 3.07; the extent, if any, to
which the provisions of the last sentence of Section 12.01 shall apply
to the Debt Securities of the series; and the manner in which any
principal of, or premium, if any, on, any Global Note will be paid, if
other than as set forth elsewhere herein;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Debt Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of
the Holder and the period or periods within which or the dates on
which, the prices at which and the terms and conditions upon which Debt
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(8) the right, if any, of the Company to redeem the Debt
Securities of such series, in whole or in part, at its option and the
period or periods within which, or the date or dates on which, the
price or prices at which, and the terms and conditions upon which Debt
Securities of the series may be redeemed, if any, in whole or in part,
at the option of the Company or otherwise;
(9) if the coin or Currency in which the Debt Securities shall
be issuable is in Dollars, the denominations of such Debt Securities if
other than denominations of $1,000 and any integral multiple thereof
(except as provided in Section 3.04);
(10) whether the Debt Securities of the series are to be
issued as Discount Securities and the amount of discount with which
such Debt Securities may be issued and, if other than the principal
amount thereof, the portion of the principal amount of Debt Securities
of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.02;
(11) provisions, if any, for the defeasance of the
Debt Securities of such series or certain of the Company's
obligations with respect to the Debt Securities;
(12) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether Coupons will be attached thereto,
whether Bearer Securities of the series may be exchanged for Registered
Securities of the series, as provided in Section 3.05(b) or otherwise
and the circumstances under which and the place or places at which any
such exchanges, if permitted, may be made;
(13) whether provisions for payment of additional amounts or
tax redemptions shall apply and, if such provisions shall apply, such
provisions; and, if Bearer Securities of the series are to be issued,
whether a procedure other than that set forth in Section 3.04(b) shall
apply and, if so, such other procedure, and if the procedure set forth
in Section 3.04(b) shall apply, the forms of certifications to be
delivered under such procedure;
(14) if other than Dollars, the Foreign Currency or Currencies
or Currency Unit in which Debt Securities of the series shall be
denominated or in which payment of the principal of (and/or premium, if
any) and/or interest on the Debt Securities of the series may be made,
and the particular provisions applicable thereto and, if applicable,
the amount of Debt Securities of the series which entitles the Holder
of a Debt Security of the series or its proxy to one vote for purposes
of Section 9.06;
(15) if the principal of (and premium, if any) or interest on
Debt Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than that in which the
Debt Securities are denominated or payable without such election, in
addition to or in lieu of the provisions of Section 3.10, the period or
periods within which and the terms and conditions upon which, such
election may be made and the time and the manner of determining the
exchange rate or rates between the Currency or Currencies in which the
Debt Securities are denominated or payable without such election and
the Currency or Currencies in which the Debt Securities are to be paid
if such election is made;
(16) the date as of which any Debt Securities of the
series shall be dated, if other than as set forth in
Section 3.03;
(17) if the amount of payments of principal of (and premium,
if any) or interest on the Debt Securities of the series may be
determined with reference to an index, including, but not limited to,
an index based on a Currency or Currencies other than that in which the
Debt Securities are denominated or payable, or any other type of index,
the manner in which such amounts shall be determined;
(18) if the Debt Securities of the series are denominated or
payable in a Foreign Currency, any other terms concerning the payment
of principal of (and premium, if any) or any interest on such Debt
Securities (including the Currency or Currencies of payment thereof);
(19) the designation of the original Currency
Determination Agent, if any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear
interest, the applicable dates for purposes of Section 7.01;
(22) any addition to, or modification or deletion of,
any Events of Default or covenants provided for with
respect to Debt Securities of the series;
(23) if Bearer Securities of the series are to be issued, (x)
whether interest in respect of any portion of a temporary Debt Security
in global form (representing all of the Outstanding Bearer Securities
of the series) payable in respect of any Interest Payment Date prior to
the exchange of such temporary Debt Security for definitive Debt
Securities of the series shall be paid to any clearing organization
with respect to the portion of such temporary Debt Security held for
its account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment
received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date, (y) the
terms upon which interests in such temporary Debt Security in global
form may be exchanged for interests in a permanent Global Note or for
definitive Debt Securities of the series and the terms upon which
interests in a permanent Global Note, if any, may be exchanged for
definitive Debt Securities of the series and (z) the cities in which
the Authorized Newspapers designated for the purposes of giving notices
to Holders are published;
(24) whether the Debt Securities of the series shall be issued
in whole or in part in the form of one or more Global Notes and, in
such case, the U.S. Depositary or any Common Depositary for such Global
Note or Notes; and if the Debt Securities of the series are issuable
only as Registered Securities, the manner in which and the
circumstances under which Global Notes representing Debt Securities of
the series may be exchanged for Registered Securities in definitive
form, if other than, or in addition to, the manner and circumstances
specified in Section 3.04(c);
(25) the designation, if any, of the U.S. Depositary; and the
designation of any trustees (other than the Trustee), depositaries,
Authenticating Agents, Paying Agents, Security Registrars, or any other
agents with respect to the Debt Securities of such series;
(26) if the Debt Securities of such series are to be issuable
in definitive form (whether upon original issuance or upon exchange of
a temporary Debt Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(27) whether Debt Securities of or within the series are to be
guaranteed by the Subsidiary Guarantors and any modification of the
terms of the Subsidiary Guarantees as set forth in Article 16 hereof;
and
(28) any other terms of the series (which other terms shall
not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and Coupons, if any, shall be
substantially identical to all other Debt Securities of such series except as to
denomination, rate of interest, Stated Maturity and the date from which
interest, if any, shall accrue, which, as set forth above, may be determined by
the Company from time to time as to Debt Securities of a series if so provided
in or established pursuant to the authority granted in a Board Resolution or in
any such indenture supplemental hereto, and except as may otherwise be provided
in or pursuant to such Board Resolution and (subject to Section 3.03) set forth
in such Officers' Certificate, or in any such indenture supplemental hereto. All
Debt Securities of any one series need not be issued at the same time, and
unless otherwise provided, a series may be reopened for issuance of additional
Debt Securities of such series.
If any of the terms of a series of Debt Securities is established in or
pursuant to a Board Resolution, a copy of such Board Resolution 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.
Section 3.02. DENOMINATIONS.
In the absence of any specification pursuant to Section 3.01 with respect
to the Debt Securities of any series, the Debt Securities of such series shall
be issuable only as Registered Securities in denominations of $1,000 and any
integral multiple thereof and shall be payable only in Dollars.
Section 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debt Securities and the Coupons, if any, of any series shall be
executed on behalf of the Company by its Chairman, a Vice Chairman, its
President, one of its Executive Vice Presidents, its Vice Presidents or its
Treasurer. The signature of any of these officers may be manual or facsimile.
Debt Securities and Coupons 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 Debt
Securities and Coupons or did not hold such offices at the date of such Debt
Securities and Coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debt Securities, with appropriate Coupons, if
any, of any series, executed by the Company and (if Debt Securities of such
series were specified as contemplated by Section 3.01 to be guaranteed by the
Subsidiary Guarantors) having endorsed thereon Subsidiary Guarantees duly
executed by the Subsidiary Guarantors, to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Debt
Securities and Coupons and the Trustee in accordance with the Company Order
shall authenticate and deliver such Debt Securities and Coupons; PROVIDED,
HOWEVER, that, in connection with its sale during the "restricted period" (as
defined in Section 1.163- 5(c)(2)(i)(D)(7) of the United States Treasury
Regulations), no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and PROVIDED, FURTHER, that a Bearer Security
(other than a temporary Global Note in bearer form) may be delivered outside the
United States in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished to the Euro-clear
Operator or to CEDEL a certificate substantially in the form set forth in
Exhibit A to this Indenture and if the Euro-clear Operator or CEDEL has
furnished the Trustee a certificate substantially in the form set forth in
Exhibit B. If all the Debt Securities of any one series are not to be issued at
one time and if a Board Resolution or supplemental indenture relating to such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of such Debt Securities and other matters which
are subject to variation, such as interest rate, Stated Maturity, date of
issuance and date from which interest, if any, shall accrue. If any Debt
Security shall be represented by a permanent Global Note, then, for purposes of
this Section and Section 3.04, the notation by the Common Depositary of a
beneficial owner's interest therein upon original issuance of such Debt Security
or upon exchange of a portion of a temporary Global Note shall be deemed to be
delivery in connection with the original issuance of such beneficial owner's
interest in such permanent Global Note. Except as permitted by Section 3.06 or
3.07, the Trustee shall not authenticate and deliver any Bearer Security unless
all Coupons for interest then matured have been detached and canceled.
The Trustee shall be entitled to receive, and (subject to Section 6.01)
shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities, Coupons, if any, and Subsidiary Guarantees, if
any, of any series, (i) the supplemental indenture or the Board Resolution by or
pursuant to which the form and terms of such Debt Securities, Coupons and
Subsidiary Guarantees have been approved, (ii) the certificates and opinions
required pursuant to Section 1.02 and (iii) one or more Opinions of Counsel
substantially to the effect that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Debt Securities
and Coupons, if any, conform to the requirements of this Indenture and
constitute sufficient authority hereunder for the Trustee to
authenticate and deliver such Debt Securities and Coupons, if any;
(2) the forms and terms of such Debt Securities, Coupons, if
any, and any such Subsidiary Guarantees have been established in
conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt
Securities, Coupons, if any, and any such Subsidiary Guarantees have
been established in a supplemental indenture, the execution and
delivery of such supplemental indenture has been duly authorized by all
necessary corporate action of the Company, such supplemental indenture
has been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is a valid and
binding obligation enforceable against the Company in accordance with
its terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(4) the execution and delivery of such Debt Securities and
Coupons, if any, have been duly authorized by all necessary corporate
action of the Company and such Debt Securities and Coupons, if any,
have been duly executed by the Company and, assuming due authentication
by the Trustee and delivery by the Company, are valid and binding
obligations enforceable against the Company in accordance with their
terms, entitled to the benefit of the Indenture, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and subject to such other exceptions as counsel shall
reasonably request and as to which the Trustee shall not reasonably
object; and
(5) to the best of such counsel's knowledge, all governmental
consents, authorizations and approvals which are required for the
execution and delivery of the Indenture and the Debt Securities under
all applicable New York laws, if any, have been received other than
such as may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the Debt
Securities.
For purposes of this opinion, such counsel may rely as to factual matters
upon certificates or written statements from officers or other appropriate
representatives of the Company or upon certificates of public officials and such
opinion may contain assumptions, limitations, exceptions and restrictions which
are reasonably satisfactory to the Trustee and its counsel.
The Trustee shall not be required to authenticate any Debt Securities,
Coupons and Subsidiary Guarantees, if any, if the issuance of such Debt
Securities, Coupons and Subsidiary Guarantees, if any, pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Debt Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security (including any temporary or permanent or other definitive
Bearer Security in global form) shall be dated as of the date of original
issuance of the first Debt Security of such series to be issued, except as
otherwise provided pursuant to Section 3.01 with respect to the Bearer
Securities of any series.
No Debt Security and no Subsidiary Guarantee endorsed thereon shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Debt Security a certificate of
authentication substantially in one of the forms provided for herein duly
executed by the Trustee or by an Authenticating Agent, and such certificate upon
any Debt Security shall be conclusive evidence, and the only evidence, that such
Debt Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. The delivery of any Debt Security by
the Trustee after the authentication thereof hereunder shall constitute due
delivery of any Subsidiary Guarantee endorsed thereon on behalf of the
Subsidiary Guarantors. Notwithstanding the foregoing, if any Debt Security shall
have been duly authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Debt Security to the Trustee
for cancellation as provided in Section 3.08 together with a written statement
(which need not comply with Section 1.02) stating that such Debt Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Debt Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.04. TEMPORARY DEBT SECURITIES; EXCHANGE OF TEMPORARY GLOBAL NOTES
FOR DEFINITIVE BEARER SECURITIES.
(a) Pending the preparation of definitive Registered Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination for Registered Securities of such series, substantially of the
tenor of the definitive Registered Securities in lieu of which they are issued,
and, if applicable, having endorsed thereon Subsidiary Guarantees duly executed
by the Subsidiary Guarantors substantially in the tenor of the definitive
Subsidiary Guarantees, in registered form or, if authorized, in bearer form, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Registered Securities and the Subsidiary
Guarantees may determine, as conclusively evidenced by their execution of such
Registered Securities or Subsidiary Guarantees, as the case may be. Every such
temporary Registered Security shall be executed by the Company and, if
applicable, the Subsidiary Guarantors, and shall be authenticated and delivered
by the Trustee upon the same conditions and in substantially the same manner,
and with the same effect, as the definitive Registered Securities in lieu of
which they are issued. In the case of any series issuable as Bearer Securities,
such temporary Debt Securities may be in global form, representing such of the
Outstanding Debt Securities of such series as shall be specified therein.
Except in the case of temporary Debt Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Debt Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Debt Securities of such series, the
temporary Debt Securities of such series shall be exchangeable for definitive
Debt Securities of such series, of a like Stated Maturity and with like terms
and provisions, upon surrender of the temporary Debt Securities of such series
at the office or agency of the Company in a Place of Payment for such series,
without charge to the Holder, except as provided in Section 3.05 in connection
with a transfer. Upon surrender for cancellation of any one or more temporary
Debt Securities of any series (accompanied by any unmatured Coupons), the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Debt Securities of the same
series of authorized denominations and of a like Stated Maturity and like terms
and provisions, having, if applicable, endorsed thereon Subsidiary Guarantees
duly executed by the Subsidiary Guarantors; PROVIDED, HOWEVER, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and PROVIDED, FURTHER, that a definitive Bearer Security
(including a permanent Bearer Security in global form) shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 3.03. Until so exchanged, the temporary Registered
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Registered Securities of such series.
(b) Unless otherwise specified pursuant to Section 3.01, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Note, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the Euro-clear Operator or CEDEL, as the case may be, for
credit to the account of the Company (in the case of sales of Bearer Securities
by the Company directly to investors) or the managing underwriter (in the case
of sales of Bearer Securities by the Company to underwriters) or such other
accounts as the Company or the managing underwriter, respectively, may direct.
On or after the date specified in or determined pursuant to the terms of
any temporary Global Note which (subject to any applicable laws and regulations)
shall be at least 40 days after the issue date of a temporary Global Note (the
"Exchange Date"), the Debt Securities represented by such temporary Global Note
may be exchanged for definitive Debt Securities (subject to the second
succeeding paragraph) or Debt Securities to be represented thereafter by one or
more permanent Global Notes in definitive form without Coupons. On or after the
Exchange Date such temporary Global Note shall be surrendered by the Common
Depositary to the Trustee (or such other agent as is specified for the purpose
pursuant to Section 3.01), as the Company's agent for such purpose at such place
specified outside the United States pursuant to Section 3.01 and following such
surrender, the Trustee (or such other agent) shall (1) endorse the temporary
Global Note to reflect the reduction of its principal amount by an equal
aggregate principal amount of such Debt Security, (2) endorse the applicable
permanent Global Note, if any, to reflect the initial amount, or an increase in
the amount of Debt Securities represented thereby, (3) manually authenticate
such definitive Debt Securities (including any permanent Global Note), (4)
deliver such definitive Debt Securities to the Holder thereof or, if such
definitive Debt Security is a permanent Global Note, deliver such permanent
Global Note to the Common Depositary to be held outside the United States for
the accounts of the Euro-clear Operator or CEDEL, as the case may be, for credit
to the respective accounts at Euro-clear Operator or CEDEL, as the case may be,
designated by or on behalf of the beneficial owners of such Debt Securities (or
to such other accounts as they may direct) and (5) redeliver such temporary
Global Note to the Common Depositary, unless such temporary Global Note shall
have been canceled in accordance with Section 3.08 hereof; PROVIDED, HOWEVER,
that, unless otherwise specified in such temporary Global Note, upon such
presentation by the Common Depositary, such temporary Global Note shall be
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by the Euro-clear Operator, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities
(including any permanent Global Note), and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL, as to the portion of such temporary
Global Note held for its account then to be exchanged for definitive Debt
Securities (including any permanent Global Note), each substantially in the form
set forth in Exhibit B to this Indenture. Each certificate substantially in the
form of Exhibit B hereto of the Euro-clear Operator or CEDEL, as the case may
be, shall be based on certificates of the account holders listed in the records
of the Euro-clear Operator or CEDEL, as the case may be, as being entitled to
all or any portion of the applicable temporary Global Note. An account holder of
the Euro-clear Operator or CEDEL, as the case may be, desiring to effect the
exchange of an interest in a temporary Global Note for an interest in definitive
Debt Securities (including any permanent Global Note) shall instruct the
Euro-clear Operator or CEDEL, as the case may be, to request such exchange on
its behalf and shall deliver to the Euro-clear Operator or CEDEL, as the case
may be, a certificate substantially in the form of Exhibit A hereto and dated no
earlier than 10 days prior to the Exchange Date. Until so exchanged, temporary
Global Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities (including any permanent Global Note) of
the same series authenticated and delivered hereunder, except as to payment of
interest, if any.
The delivery to the Company, its agent or the Trustee by the Euro-clear
Operator or CEDEL of any certificate substantially in the form of Exhibit B
hereto may be relied upon by the Company, its agent and the Trustee as
conclusive evidence that a corresponding certificate or certificates has or have
been delivered to the Euro-clear Operator or CEDEL, as the case may be, pursuant
to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the Trustee
(or such other agent as may be specified as the Company's agent for such purpose
pursuant to Section 3.01) definitive Debt Securities in an aggregate principal
amount equal to the principal amount of such temporary Global Note, executed by
the Company and, if applicable, having endorsed thereon Subsidiary Guarantees
duly executed by the Subsidiary Guarantors. At any time on or after the Exchange
Date, upon 30 days' notice to the Trustee (or such other agent as may be
specified as the Company's agent for such purpose pursuant to Section 3.01) by
the Euro-clear Operator or CEDEL, as the case may be, acting at the request of
or on behalf of the beneficial owner, a Debt Security represented by a temporary
Global Note or a permanent Global Note, as the case may be, may be exchanged, in
whole or from time to time in part, for definitive Debt Securities without
charge (except as provided in Section 3.05) and the Trustee (or such agent)
shall authenticate and deliver, in exchange for each portion of such temporary
Global Note or such permanent Global Note, an equal aggregate principal amount
of definitive Debt Securities of the same series of authorized denominations and
of a like Stated Maturity and with like terms and conditions, as the portion of
such temporary Global Note or such permanent Global Note to be exchanged, which,
unless the Debt Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as contemplated by Section 3.01, shall
be in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; PROVIDED,
HOWEVER, that definitive Bearer Securities shall be delivered in exchange for a
portion of the temporary Global Note or the permanent Global Note only in
compliance with the requirements of the second preceding paragraph. On or prior
to the forty-fifth day following receipt by the Trustee (and such agent as may
be specified as the Company's agent for such purpose pursuant to Section 3.01)
of such notice with respect to a Debt Security, or, if such day is not a
Business Day, the next succeeding Business Day, the temporary Global Note or the
permanent Global Note, as the case may be, shall be surrendered by the Common
Depositary to the Trustee (or such other agent as may be specified as the
Company's agent for such purpose pursuant to Section 3.01), as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Debt Securities without charge following such surrender, upon the
request of the Euro-clear Operator or CEDEL, as the case may be, and the Trustee
(or such agent) shall (1) endorse the applicable temporary Global Note or the
permanent Global Note to reflect the reduction of its principal amount by the
aggregate principal amount of such Debt Security, (2) cause the terms of such
Debt Security and Coupons, if any, to be entered on a definitive Debt Security,
(3) manually authenticate such definitive Debt Security, and (4) if a Bearer
Security is to be delivered, deliver such definitive Debt Security outside the
United States to the Euro-clear Operator or CEDEL, as the case may be, for or on
behalf of the beneficial owner thereof, in exchange for a portion of such
temporary Global Note or the permanent Global Note.
Unless otherwise specified in such temporary Global Note or the permanent
Global Note, any such exchange shall be made free of charge (except as provided
in Section 3.05) to the beneficial owners of such temporary Global Note or the
permanent Global Note, except that a Person receiving definitive Debt Securities
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Debt Securities
in person at the offices of the Euro-clear Operator or CEDEL. Definitive Debt
Securities in bearer form to be delivered in exchange for any portion of a
temporary Global Note or the permanent Global Note shall be delivered only
outside the United States. Notwithstanding the foregoing, in the event of
redemption or acceleration of all or any part of a temporary Global Note prior
to the Exchange Date, a permanent Global Note or definitive Bearer Securities,
as the case may be, will not be issuable in respect of such temporary Global
Note or such portion thereof, and payment thereon will instead be made as
provided in such temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary Global Note
or the permanent Global Note shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.01, interest payable on such temporary
Global Note on an Interest Payment Date for Debt Securities of such series
occurring prior to the applicable Exchange Date shall be payable to the
Euro-clear Operator or CEDEL on such Interest Payment Date upon delivery by the
Euro-clear Operator or CEDEL to the Trustee of a certificate or certificates
substantially in the form set forth in Exhibit B to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary Global Note on such Interest Payment Date and who have each delivered
to the Euro-clear Operator or CEDEL, as the case may be, a certificate
substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the Trustee
in exchange for a portion of a temporary Global Note or the permanent Global
Note shall not bear a coupon for any interest which shall theretofore have been
duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by the Company
to the Trustee in accordance with the provisions of this Section 3.04.
Notwithstanding the provisions of Article Eleven of this Indenture, with
respect to Exhibits A and B to this Indenture, the Company may, in its
discretion and if required or desirable under applicable law, substitute one or
more other forms of such Exhibits for such Exhibits, eliminate the requirement
that any or all certificates be provided, or change the time that any
certificate may be required, provided that such substitute form or forms or
notice of elimination or change of such certification requirement have
theretofore been delivered to the Trustee (and any agent of the Company
appointed pursuant to Section 3.01 and referred to above) with a Company Request
and such form or forms, elimination or change is reasonably acceptable to the
Trustee (and any such agent). The Trustee shall have no responsibility for
determining whether any substitute form or forms, elimination or change is
permitted by or is in compliance with applicable law and shall have no liability
to the Company or any Holder therefor.
(c) If the Company shall establish pursuant to Section 3.01 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and, if
applicable, the Subsidiary Guarantors shall execute the Subsidiary Guarantees,
and the Trustee shall, in accordance with Section 3.03 and the Company Order
with respect to such series, authenticate and deliver one or more Global Notes
in temporary or permanent form that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Notes, (ii)
shall be registered in the name of the U.S. Depositary for such Global Note or
Notes or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "This Debt Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary, unless and until this Debt Security is
exchanged in whole or in part for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section 3.05, unless
and until it is exchanged in whole or in part for Registered Securities in
definitive form, a Global Note representing all or a portion of the Registered
Securities of a series may not be transferred except as a whole by the U.S.
Depositary for such series to a nominee of such depositary or by a nominee of
such depositary to such depositary or another nominee of such depositary or by
such depositary or any such nominee to a successor U.S. Depositary for such
series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good standing under the Exchange Act or other applicable
statute or regulation, the Company shall appoint a successor U.S. Depositary
with respect to the Debt Securities of such series. If a successor U.S.
Depositary for the Debt Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, the Company will execute and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Registered Securities of such
series in definitive form, together, if applicable, with Subsidiary Guarantees
endorsed thereon, in an aggregate principal amount equal to the principal amount
of the Global Note or Notes representing such series in exchange for such Global
Note or Notes.
The Company may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form, together, if applicable, with Subsidiary Guarantees endorsed
thereon, and in an aggregate principal amount equal to the principal amount of
the Global Note or Notes representing such series in exchange for such Global
Note or Notes.
If the Registered Securities of any series shall have been issued in the
form of one or more Global Notes and if an Event of Default with respect to the
Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form, together, if applicable, with Subsidiary Guarantees endorsed
thereon, and in an aggregate principal amount equal to the principal amount of
the Global Note or Notes representing such series in exchange for such Global
Note or Notes.
If specified by the Company pursuant to Section 3.01 with respect to
Registered Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge (except as provided in Section 3.05):
(i) to each Person specified by the U.S. Depositary a new
Registered Security or Securities of the same series, of any authorized
denomination as requested by such Person in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Note, together, if applicable, with Subsidiary Guarantees
endorsed thereon; and
(ii) to the U.S. Depositary a new Global Note in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Note and the aggregate principal
amount of Registered Securities delivered to Holders thereof, together,
if applicable, with Subsidiary Guarantees endorsed thereon.
Upon the exchange of a Global Note for Registered Securities in definitive
form, such Global Note shall be canceled by the Trustee. Debt Securities issued
in exchange for a Global Note pursuant to this subsection (c) shall be
registered in such names and in such authorized denominations as the U.S.
Depositary for such Global Note, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
Section 3.05. REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the registers maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; PROVIDED, HOWEVER, that
the Company may appoint co-Security Registrars.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee, one or more new Registered Securities of
the same series of like aggregate principal amount of such denominations as are
authorized for Registered Securities of such series and of a like Stated
Maturity and with like terms and conditions having, if applicable, endorsed
thereon Subsidiary Guarantees duly executed by the Subsidiary Guarantors.
Except as otherwise provided in Section 3.04 and this Section 3.05, at the
option of the Holder, Registered Securities of any series may be exchanged for
other Registered Securities of the same series of like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive, having,
if applicable, endorsed thereon Subsidiary Guarantees duly executed by the
Subsidiary Guarantors.
(b) If and to the extent specified pursuant to Section 3.01, the provisions
of this Section 3.05(b) shall be applicable to Debt Securities of any series
which are Bearer Securities. At the option of the Holder thereof, to the extent
permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.01 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all unmatured Coupons and any matured Coupons in default attached thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them, the Subsidiary Guarantors and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to any Paying Agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; PROVIDED, HOWEVER, that except as otherwise provided in
Section 12.03, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and of a like Stated Maturity and
with like terms and conditions after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the Coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Security or Securities which the Holder making the
exchange is entitled to receive.
Whenever any Debt Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive, having,
if applicable, endorsed thereon Subsidiary Guarantees duly executed by the
Subsidiary Guarantors.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.01, in no event may
Registered Securities, including Registered Securities received in exchange for
Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered for such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration of
transfer or 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 his attorney duly authorized in writing.
No service charge will be made for any registration of transfer or exchange
of Debt Securities except as provided in Section 3.04(b) or 3.06. 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 Debt Securities, other than those expressly provided in this
Indenture to be made at the Company's own expense or without expense or without
charge to the Holders.
The Company shall not be required (i) to register, register the transfer of
or exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before the day of the transmission of a notice of
redemption of Debt Securities of such series selected for redemption under
Section 13.03 and ending at the close of business on the day of such
transmission, or (ii) to register, register the transfer of or exchange any Debt
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Debt Security being redeemed in part.
Section 3.06. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES.
If (i) any mutilated Debt Security or any mutilated Coupon with the Coupon
Security to which it appertains (and all unmatured Coupons attached thereto) is
surrendered to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
any Coupon, and there is delivered to the Company, the Trustee and, if
applicable, the Subsidiary Guarantors such security or indemnity as may be
required by them to save each of them and any agent of any of them harmless, and
neither the Company nor the Trustee receives notice that such Debt Security or
Coupon has been acquired by a bona fide purchaser, then the Company shall
execute and upon Company Request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Debt
Security or in exchange for the Coupon Security to which such mutilated,
destroyed, lost or stolen Coupon appertained, a new Debt Security of the same
series of like Stated Maturity and with like terms and conditions and like
principal amount, having, if applicable, endorsed thereon Subsidiary Guarantees
duly executed by the Subsidiary Guarantors, bearing a number not
contemporaneously Outstanding, and, in the case of a Coupon Security, with such
Coupons attached thereto that neither gain nor loss in interest shall result
from such exchange or substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security or Coupon in accordance with its terms; PROVIDED, HOWEVER,
that principal of (and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 12.03, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01 or except as otherwise provided in
this Section 3.06, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Debt 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 respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security or Coupon of any series, with any Subsidiary
Guarantees endorsed thereon duly executed by the Subsidiary Guarantors, issued
pursuant to this Section shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security or Coupon 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 Debt Securities or Coupons of that series, any Subsidiary
Guarantees endorsed thereon, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
Section 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest on any Registered 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 such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any registration of transfer or exchange subsequent to the Regular Record
Date. Unless otherwise specified as contemplated by Section 3.01 with respect to
the Debt Securities of any series, payment of interest on Registered Securities
shall be made at the place or places specified pursuant to Section 3.01 or, at
the option of the Company, by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or, if provided
pursuant to Section 3.01, by wire transfer to an account designated by the
Registered Holder.
(b) Interest on any Coupon Security which is payable and is punctually paid
or duly provided for on any Interest Payment Date shall, except as otherwise
provided in Section 12.03, be paid to the Holder of the Coupon which has matured
on such Interest Payment Date upon surrender of such Coupon on such Interest
Payment Date at an office or agency of the Company in a Place of Payment located
outside the United States specified pursuant to Section 3.01.
Interest on any Bearer Security (other than a Coupon Security) which is
payable and is punctually paid or duly provided for on any Interest Payment Date
shall be paid to the Holder of the Bearer Security upon presentation of such
Bearer Security and notation thereon on such Interest Payment Date at an office
or agency of the Company in a Place of Payment located outside the United States
specified pursuant to Section 3.01.
Unless otherwise specified pursuant to Section 3.01, at the direction of
the Holder of any Bearer Security or Coupon payable in Dollars, payment on such
Bearer Security or Coupon will be made by check or, if agreeable to the Trustee
and at the expense of the Company, by wire transfer to a Dollar account
maintained by such Holder outside the United States. If such payment at the
offices of all Paying Agents outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in Dollars, the
Company will appoint an office or agent in the United States at which such
payment may be made. Unless otherwise specified pursuant to Section 3.01, at the
direction of the Holder of any Bearer Security or Coupon payable in a Foreign
Currency, payment on such Bearer Security or Coupon will be made by a check
drawn on a bank outside the United States or by wire transfer to an appropriate
account maintained by such Holder outside the United States. Except as provided
in this paragraph, no payment on any Bearer Security or Coupon will be made by
mail to an address in the United States or by wire transfer to an account in the
United States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered 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 such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall, at least 25 days prior to the date of the proposed payment,
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Registered Security and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency or Currency Unit in
which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Section 3.01 or 3.10) equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment. Such money when
deposited is 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 date shall be not more than 20 days
and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such Special Record 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 the Holders of such Registered Securities at their
addresses as they appear 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 mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Registered Securities (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
Registered Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Registered
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.
(d) Any Defaulted Interest payable in respect of Bearer Securities of any
series shall be payable pursuant to such procedures as may be satisfactory to
the Trustee in such manner that there is no discrimination between the Holders
of Registered Securities (if any) and Bearer Securities of such series, and
notice of the payment date therefor shall be given by the Trustee, in the name
and at the expense of the Company, in the manner provided in Section 1.05 not
more than 20 days and not less than 10 days prior to the date of the proposed
payment.
(e) Subject to the foregoing provisions of this Section, each Debt Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debt Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
Section 3.08. CANCELLATION.
Unless otherwise specified pursuant to Section 3.01 for Debt Securities of
any series, all Debt Securities surrendered for payment, redemption,
registration of transfer, exchange or credit against any sinking fund and all
Coupons surrendered for payment or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Registered Securities
and matured Coupons so delivered shall be promptly canceled by the Trustee. All
Bearer Securities and unmatured Coupons so delivered shall be held by the
Trustee and, upon instruction by Company Order, shall be canceled or held for
reissuance. Bearer Securities and unmatured Coupons held for reissuance may be
reissued only in exchange for Bearer Securities of the same series and of like
Stated Maturity and with like terms and conditions pursuant to Section 3.05 or
in replacement of mutilated, lost, stolen or destroyed Bearer Securities of the
same series and of like Stated Maturity and with like terms and conditions or
the related Coupons pursuant to Section 3.06. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Debt Securities. The Company or any Subsidiary Guarantor may
at any time deliver to the Trustee for cancellation any Debt Securities or
Coupons previously authenticated and delivered hereunder which the Company or
any Subsidiary Guarantor, as the case may be, has acquired in any manner
whatsoever, and the Company may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Debt Securities previously
authenticated hereunder which the Company has not issued, and all Debt
Securities or Coupons so delivered shall be promptly canceled by the Trustee. No
Debt Securities or Coupons shall be authenticated in lieu of or in exchange for
any Debt Securities or Coupons canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Debt Securities and Coupons
held by the Trustee shall be destroyed by the Trustee in accordance with its
customary procedures and a certificate of destruction shall be delivered to the
Company upon Company Request. The acquisition of any Debt Securities or Coupons
by the Company shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until such Debt Securities or
Coupons are surrendered to the Trustee for cancellation. In the case of any
temporary Global Note which shall be destroyed if the entire aggregate principal
amount of the Debt Securities represented thereby has been exchanged, the
certificate of destruction shall state that all certificates required pursuant
to Section 3.04 hereof and substantially in the form of Exhibit B hereto, to be
given by the Euro-clear Operator or CEDEL, have been duly presented to the
Trustee by the Euro-clear Operator or CEDEL, as the case may be. Permanent
Global Notes shall not be destroyed until exchanged in full for definitive Debt
Securities or until payment thereon is made in full.
Section 3.09. COMPUTATION OF INTEREST.
Except as otherwise specified pursuant to Section 3.01 for Debt Securities
of any series, interest on the Debt Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months.
Section 3.10. CURRENCY OF PAYMENTS IN RESPECT OF DEBT SECURITIES.
(a) Except as otherwise specified pursuant to Section 3.01 for Bearer
Securities of any series, payment of the principal of (and premium, if any) and
interest on Bearer Securities of such series denominated in any Currency will be
made in such Currency.
(b) With respect to Registered Securities of any series not permitting the
election provided for in paragraph (c) below or the Holders of which have not
made the election provided for in paragraph (c) below, except as provided in
paragraph (e) below, payment of the principal of (and premium, if any) and any
interest on any Registered Security of such series will be made in the Currency
in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.01 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below, to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form established pursuant to Section 3.01,
not later than the close of business on the Election Date immediately preceding
the applicable payment date. If a Holder so elects to receive such payments in
any such Currency, such election will remain in effect for such Holder until
changed by such Holder by written notice to the Trustee (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change or election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or notice of redemption has
been given by the Company pursuant to Article Thirteen). Any Holder of any such
Registered Security who shall not have delivered any such election to the
Trustee by the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant Currency as
provided in paragraph (b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above has been provided
for pursuant to Section 3.01, then not later than the fourth Business Day after
the Election Date for each payment date, the Trustee will deliver to the Company
a written notice specifying, in the Currency in which each series of the
Registered Securities is payable, the respective aggregate amounts of principal
of (and premium, if any) and any interest on the Registered Securities to be
paid on such payment date, specifying the amounts so payable in respect of the
Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (c) above. If the election referred to in paragraph (c)
above has been provided for pursuant to Section 3.01 and if at least one Holder
has made such election, then, on the second Business Day preceding each payment
date, the Company will deliver to the Trustee an Exchange Rate Officer's
Certificate in respect of the Currency payments to be made on such payment date.
The Currency amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (c) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the third Business Day (the "Valuation Date") immediately preceding
each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency, the
ECU or any other Currency Unit in which any of the Debt Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign Currency, the ECU or such
other Currency Unit occurring after the last date on which such Foreign
Currency, the ECU or such other Currency Unit was used (the "Conversion Date"),
the Dollar shall be the Currency of payment for use on each such payment date.
The Dollar amount to be paid by the Company to the Trustee and by the Trustee or
any Paying Agent to the Holders of such Debt Securities with respect to such
payment date shall be the Dollar Equivalent of the Foreign Currency or, in the
case of a Currency Unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Currency Determination Agent, if any, or, if there
shall not be a Currency Determination Agent, then by the Trustee, in the manner
provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any Currency
shall have elected to be paid in another Currency as provided in paragraph (c)
above, and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election. If a Conversion Event occurs with respect
to the Currency in which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as provided in paragraph
(e) of this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Currency Determination Agent, if any, or, if there shall not be a Currency
Determination Agent, then by the Trustee, and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Currency Determination Agent, if any, or, if there shall not be a Currency
Determination Agent, then by the Trustee, and subject to the provisions of
paragraph (i) below, shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each
payment.
(i) For purposes of this Section 3.10 the following terms shall have the
following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency
Unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant Currency Unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount and
such single Currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided into two or
more Currencies, the Specified Amount of such Component Currency shall
be replaced by amounts of such two or more Currencies with appropriate
Dollar equivalents at the Market Exchange Rate on the date of such
replacement equal to the Dollar equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate on such
date, and such amounts shall thereafter be Specified Amounts and such
Currencies shall thereafter be Component Currencies. If after the
Conversion Date of the relevant Currency Unit, including but not
limited to, the ECU, a Conversion Event (other than any event referred
to above in this definition of "Specified Amount") occurs with respect
to any Component Currency of such Currency Unit, the Specified Amount
of such Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into Dollars at
the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean the record date with respect to any
payment date, and with respect to the Maturity shall mean the record
date (if within 16 or fewer days prior to the Maturity) immediately
preceding the Maturity, and with respect to any series of Debt
Securities whose record date immediately preceding the Maturity is more
than 16 days prior to the Maturity or any series of Debt Securities for
which no record dates are provided with respect to interest payments,
shall mean the date which is 16 days prior to the Maturity.
(j) All decisions and determinations of the Currency Determination Agent,
if any, or the Trustee regarding the Dollar Equivalent of the Foreign Currency,
the Dollar Equivalent of the Currency Unit and the Market Exchange Rate shall be
in its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the Company and all
Holders of the Debt Securities denominated or payable in the relevant Currency.
In the event of a Conversion Event with respect to a Foreign Currency, the
Company, after learning thereof, will immediately give written notice thereof to
the Trustee (and the Trustee will promptly thereafter give notice in the manner
provided in Section 1.05 to the Holders) specifying the Conversion Date. In the
event of a Conversion Event with respect to the ECU or any other Currency Unit
in which Debt Securities are denominated or payable, the Company, after learning
thereof, will immediately give written notice thereof to the Trustee (and the
Trustee will promptly thereafter give written notice in the manner provided in
Section 1.05 to the Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above, the Company, after learning thereof, will similarly give
written notice to the Trustee. The Trustee shall be fully justified and
protected in relying and acting upon information received by it from the Company
and the Currency Determination Agent, if any, and may, notwithstanding any other
provision of this Indenture, conclusively assume that no Conversion Event or
other event of which it is entitled to notice hereunder has occurred unless it
receives written notice thereof as provided herein, and shall not otherwise have
any duty or obligation to determine such information independently.
(k) For purposes of any provision of this Indenture where the Holders of
Outstanding Debt Securities may perform an Act which requires that a specified
percentage of the Outstanding Debt Securities of all series perform such Act and
for purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal (and premium, if any) and interest on the Debt
Securities of all series in respect of which moneys are to be disbursed ratably,
the principal of (and premium, if any) and interest on the Outstanding Debt
Securities denominated in a Foreign Currency will be the amount in Dollars based
upon the Market Exchange Rate for Debt Securities of such series, as of the date
for determining whether the Holders entitled to perform such Act have performed
it, or as of the Business Day immediately prior to the date of such decision or
determination by the Trustee, as the case may be.
Section 3.11. JUDGMENTS.
If for the purpose of obtaining a judgment in any court with respect to any
obligation of the Company hereunder or under any Debt Security, it shall become
necessary to convert into any other Currency any amount in the Currency due
hereunder or under such Debt Security, then such conversion shall be made at the
Market Exchange Rate as in effect on the date the Company shall make payment to
any Person in satisfaction of such judgment. If pursuant to any such judgment,
conversion shall be made on a date other than the date payment is made and there
shall occur a change between such Market Exchange Rate and the Market Exchange
Rate as in effect on the date of payment, the Company agrees to pay such
additional amounts (if any) as may be necessary to ensure that the amount paid
is equal to the amount in such other Currency which, when converted at the
Market Exchange Rate as in effect on the date of payment or distribution, is the
amount then due hereunder or under such Debt Security. Any amount due from the
Company under this Section 3.11 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Debt Security. In no event, however, shall the
Company be required to pay more in the Currency or Currency Unit due hereunder
or under such Debt Security at the Market Exchange Rate as in effect when
payment is made than the amount of Currency stated to be due hereunder or under
such Debt Security so that in any event the Company's obligations hereunder or
under such Debt Security will be effectively maintained as obligations in such
Currency, and the Company shall be entitled to withhold (or be reimbursed for,
as the case may be) any excess of the amount actually realized upon any such
conversion over the amount due and payable on the date of payment or
distribution.
Section 3.12. EXCHANGE UPON DEFAULT.
If default is made in the payments referred to in Section 12.01, the
Company hereby undertakes that upon presentation and surrender of a permanent
Global Note to the Trustee (or to any other Person or at any other address as
the Company may designate in writing), on any Business Day on or after the
maturity date thereof the Company will issue and the Trustee will authenticate
and deliver to the bearer of such permanent Global Note duly executed and
authenticated definitive Debt Securities with the same issue date and maturity
date as set out in such permanent Global Note.
Section 3.13. CUSIP NUMBERS.
The Company in issuing the Debt Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness or accuracy of such
numbers either as printed on the Debt Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Debt Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture, with respect to the Debt Securities of any series (if all
series issued under this Indenture are not to be affected), shall upon Company
Request, cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange or conversion of such Debt Securities
herein expressly provided for or expressly provided in the terms of the Debt
Securities of such series pursuant to Section 3.01, and rights to receive
payments of principal (and premium, if any) and interest on such Debt
Securities) and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such
series theretofore authenticated and delivered (other than (i) Debt
Securities and Coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
3.06, (ii) Coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived under Section 3.05,
(iii) Coupons appertaining to Bearer Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 13.06, and (iv) Debt Securities and
Coupons of such series 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 12.04) have been delivered to the Trustee for
cancellation; or
(B) all Debt Securities and the Coupons, if any, 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 by the
Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) of this subclause
(B), has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in the
Currency in which such Debt Securities are denominated
(except as otherwise provided pursuant to Section 3.01 or
3.10) sufficient to pay and discharge the entire indebtedness on such
Debt Securities for principal (and premium, if any) and interest to the
date of such deposit (in the case of Debt Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be; PROVIDED, HOWEVER, in the event a petition for relief
under the Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable Federal or state bankruptcy, insolvency or other
similar law, is filed with respect to the Company within 91 days after
the deposit and the Trustee is required to return the deposited money
to the Company, the obligations of the Company under this Indenture
with respect to such Debt Securities shall not be deemed terminated or
discharged;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with; and
(4) the Company has delivered to the Trustee an Opinion of
Counsel or a ruling by the Internal Revenue Service to the effect that
such deposit and discharge will not cause Holders of the Debt
Securities of the series to recognize income, gain or loss for Federal
income tax purposes.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Company to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.01, and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
12.04, shall survive. If, after the deposit referred to in subclause (B) of
clause 1 of this Section has been made, (x) the Holder of a Debt Security is
entitled to, and does, elect pursuant to Section 3.10(c), to receive payment in
a Currency other than that in which deposit was made, or (y) if a Conversion
Event occurs with respect to the Currency in which deposit was made or elected
to be received by the Holder pursuant to Section 3.10(c), then the indebtedness
represented by such Debt Security shall be fully discharged to the extent that
deposit made with respect to such Debt Security shall be converted into the
Currency in which such payment is made.
Section 4.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 12.04, all money
deposited with the Trustee pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Debt Securities and
Coupons, if any, 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 been deposited
with the Trustee.
ARTICLE FIVE
REMEDIES
Section 5.01. EVENTS OF DEFAULT.
"Event of Default" wherever used herein with respect to Debt Securities of
any series 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, 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 Debt
Security or any payment with respect to the Coupons, if any, of such
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (and
premium, if any, on) any Debt Security of such series at
its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Debt Security
of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or any covenant or warranty which
expressly has been included in this Indenture solely for the benefit of
Debt Securities of a series other than such series), and continuance of
such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of such
series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) the entry of a decree or order for relief in respect of
the Company or, if Subsidiary Guarantees are issued with respect to
such series, a Subsidiary Guarantor by a court having jurisdiction in
the premises in an involuntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or any other applicable Federal or
State bankruptcy, insolvency or other similar law, or a decree or order
adjudging the Company or, if Subsidiary Guarantees are issued with
respect to such series, a Subsidiary Guarantor a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
or, if Subsidiary Guarantees are issued with respect to such series, a
Subsidiary Guarantor under any applicable Federal or State law, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of the Company or, if
Subsidiary Guarantees are issued with respect to such series, a
Subsidiary Guarantor or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company or, if Subsidiary
Guarantees are issued with respect to such series, a Subsidiary
Guarantor of a voluntary case under the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or the consent by it to
the entry of an order for relief in an involuntary case under any such
law or to the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the
Company or, if Subsidiary Guarantees are issued with respect to such
series, a Subsidiary Guarantor or of any substantial part of its
property, or the making by it of an assignment for the benefit of its
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company or, if Subsidiary Guarantees are issued with
respect to such series, a Subsidiary Guarantor in furtherance of any
such action; or
(7) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.01.
Section 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Debt Securities of any series at
that time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt Securities of such series to
be due and payable immediately, by a notice in writing to the Company and, if
applicable, the Subsidiary Guarantors (and to the Trustee if given by Holders),
and upon, any such declaration such principal amount (or specified amount) plus
accrued and unpaid interest (and premium, if any), shall become immediately due
and payable. Upon payment of such amount in the Currency in which such Debt
Securities are denominated (except as otherwise provided pursuant to Section
3.01 or 3.10), all obligations of the Company in respect of the payment of
principal of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to Debt
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 principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company,
the Trustee and, if applicable, the Subsidiary Guarantors, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
in the Currency in which such Debt Securities are denominated (except
as otherwise provided pursuant to Section 3.01 or 3.10) sufficient to
pay
(A) all overdue installments of interest on all
Debt Securities or all overdue payments
with respect to any Coupons of such series,
(B) the principal of (and premium, if any, on)
any Debt 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 Debt Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue
installments of interest on each Debt
Security of such series or upon overdue
payments on any Coupons of such series at
the Overdue Rate, 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
6.07; PROVIDED, HOWEVER, that all sums
payable under this clause (D) shall be paid
in Dollars;
and
(2) All Events of Default with respect to Debt Securities of
such series, other than the nonpayment of the principal of Debt
Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission and annulment shall affect any subsequent default or impair
any right consequent thereon.
Section 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Debt Security or any payment with respect to any
Coupons when such interest or payment becomes due and payable and such
default continues for a period of 30 days,
(2) default is made in the payment of principal of
(or premium, if any, on) any Debt Security at the Maturity
thereof, or
(3) default is made in the making or satisfaction of any
sinking fund payment or analogous obligation when the same becomes due
pursuant to the terms of the Debt Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, (i) the amount then due and
payable on such Debt Securities or matured Coupons for the principal (and
premium, if any) and interest, if any, (ii) to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue Rate,
and (iii) such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
If the Company fails to pay such amount forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums 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 Debt Securities and Coupons,
and collect the moneys 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 Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt 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 Debt Securities and Coupons
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 in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company, any
Subsidiary Guarantor (if Subsidiary Guarantees are issued) or any other obligor
upon the Debt Securities and Coupons, if any, of a particular series or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of such Debt Securities shall then be due
and payable as therein expressed or by declaration of acceleration or otherwise
and irrespective of whether the Trustee shall have made any demand on the
Company or, if applicable, the Subsidiary Guarantors 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 (or, if the Debt Securities of such series are Discount
Securities, such portion of the principal amount as may be due and
payable with respect to such series pursuant to a declaration in
accordance with Section 5.02) (and premium, if any) and interest owing
and unpaid in respect of the Debt Securities and Coupons of such series
and to file such other papers or documents and take such other actions,
including participating as a member, voting or otherwise, of any
committee of creditors appointed in the matter, 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 6.07) and of the Holders of such Debt
Securities and Coupons 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;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such 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 6.07.
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 Debt
Securities and any Coupons of such 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 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES.
All rights of action and claims under this Indenture, the Debt Securities
and the Coupons, if any, of any series or the Subsidiary Guarantees, if any, may
be prosecuted and enforced by the Trustee without the possession of any of such
Debt Securities or Coupons 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 any other
amounts due the Trustee under Section 6.07, be for the ratable benefit of the
Holders of the Debt Securities or Coupons in respect of which such judgment has
been recovered.
Section 5.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee 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 (and premium,
if any) or interest, upon presentation of the Debt Securities or Coupons of any
series in respect of which money has been collected 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 6.07.
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Debt Securities or Coupons 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 Debt Securities or Coupons for principal (and
premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company or any other Person or Persons
entitled thereto.
Section 5.07. LIMITATION ON SUITS.
No Holder of any Debt Security or Coupon of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, 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 such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt 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 offered 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 offer 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 Debt 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
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders. For the protection and enforcement of the provisions of this Section
5.07, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
Section 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Debt Security or of any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.07) interest on such Debt Security or Coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or
Coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment and interest thereon, and such
right shall not be impaired without the consent of such Holder.
Section 5.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture 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 the Company, the Trustee, the
Subsidiary Guarantors and the Holders shall, subject to any determination in
such proceeding, 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 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise expressly provided elsewhere in this Indenture, 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 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or any acquiescence
therein. Every right and remedy given by this Indenture 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 5.12. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding Debt
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 Debt
Securities of such series, provided, that:
(1) such direction shall not be in conflict with any
rule of law or with this Indenture;
(2) subject to the provisions of Section 6.01, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceeding so directed
would involve the Trustee in personal liability or be unjustly
prejudicial to the Holders of Debt Securities of such series not
joining in any such direction;
(3) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction; and
(4) this provision shall not affect the rights of the
Trustee set forth in Section 6.01(c)(4).
Section 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series waive, by notice to the Trustee and the
Company, any past default or Event of 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 Debt Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the
Debt Securities of such series, or
(2) in respect of a covenant or provision hereof which
pursuant to Article Eleven cannot be modified or amended without the
consent of the Holder of each Outstanding Debt 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
of the Debt Securities of such series under this Indenture, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
Section 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debt Security
or any Coupon by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant, but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder of a Debt Security or Coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on such Debt Security or the
payment of any Coupon on or after the respective Stated Maturity or Maturities
expressed in such Debt Security or Coupon (or, in the case of redemption, on or
after the Redemption Date).
Section 5.15. 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 of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and 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 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect to
the Debt Securities of any series,
(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 of
this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default with respect to Debt Securities of any
series has occurred and is continuing, the Trustee shall, with respect to the
Debt Securities of such series, exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) Subject to Section 6.04, no provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that
(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, suffered or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Debt 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, under this
Indenture;
(4) the Trustee shall not be required 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; and
(5) the Trustee shall not be charged with knowledge of any
default or Event of Default or any other act or circumstance upon the
occurrence of which the Trustee may be required to take action unless a
Responsible Officer of the Trustee obtains actual knowledge of such
default, Event of Default, act or circumstance or unless written notice
referencing this Indenture or the Debt Securities is received by the
Trustee at the Corporate Trust Office.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with respect
to Debt Securities or Coupons, if any, of any series, the Trustee shall give
notice to all Holders of Debt Securities and Coupons of such series 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 Debt
Security or Coupon of such series or in the payment of any sinking fund
installment with respect to Debt 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 determine that the withholding of such
notice is in the interest of the Holders of Debt Securities and of Coupons of
such series; and PROVIDED, FURTHER, that in the case of any default of the
character specified in Section 5.01(4) with respect to Debt 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 Debt Securities of such series.
Notice given pursuant to this Section 6.02 with respect to Registered
Securities shall be transmitted by mail:
(1) to all Registered Holders, as the names and
addresses of the Registered Holders appear in the Security
Register;
(2) to such Holders of Bearer Securities of any series as have
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.02(a) of this Indenture; and
(4) to the Company.
Notice given pursuant to this Section 6.02 with respect to Bearer
Securities shall be transmitted in the manner set forth in Section 1.05.
Section 6.03. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, 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 or any Subsidiary Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or Company
Order or Guarantor Request or Guarantor Order, as the case may be, and any
resolution of the Board of Directors of the Company or any Subsidiary Guarantor
shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture 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;
(d) the Trustee may consult with counsel and the 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 by this Indenture at the request or direction of any of
the Holders of Debt Securities of any series pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance 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,
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 the
books, records and premises of the Company, or, if any Subsidiary Guarantees are
issued, the Subsidiary Guarantors, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent appointed pursuant to
Section 3.10(j)) or attorney appointed with due care by it hereunder.
Section 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT SECURITIES.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, including any Subsidiary Guarantees
endorsed thereon, shall be taken as the statements of the Company or the
Subsidiary Guarantors, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Debt Securities,
Coupons, if any, or Subsidiary Guarantee, if any, of any series. The Trustee
shall not be accountable for the use or application by the Company of any Debt
Securities or the proceeds thereof. The Trustee assumes no responsibility for
the accuracy of any statements in any registration statement relating to the
Debt Securities.
Section 6.05. MAY HOLD DEBT SECURITIES.
The Trustee, any Paying Agent, the Security Registrar or any other agent of
the Company or the Subsidiary Guarantors, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities or Coupons, and,
subject to Sections 6.08 and 6.13, may otherwise deal with the Company and the
Subsidiary Guarantors with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
Section 6.06. MONEY HELD IN TRUST.
Subject to the provisions of Sections 12.04 and 15.04, money in any
Currency held by the Trustee or any Paying Agent in trust hereunder need not be
segregated from other funds except to the extent required by law. Neither the
Trustee nor any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company or the Subsidiary Guarantors, as the case may be.
Section 6.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation in Dollars 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 in Dollars upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
connection with the administration of the trusts herein set forth
(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 its negligence or bad
faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it
harmless against, any loss, liability, damage, claims or expense,
including taxes (other than taxes based upon, measured by or determined
by income of the Trustee), incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section and in addition to its rights under Section 5.06, the Trustee shall
have a claim prior to the Debt Securities and Coupons, if any, upon all property
and funds held or collected by the Trustee as such, except funds held in trust
pursuant to Section 15.03 hereof or for the payment of amounts due on particular
Debt Securities and Coupons. The fees and expenses incurred by the Trustee in
connection with any bankruptcy of the Company shall constitute fees and expenses
of administration; PROVIDED, HOWEVER, that this shall not affect the Trustee's
rights as set forth in the preceding sentence or Section 5.06. The provisions of
Section 6.07(3) shall survive the resignation or removal of the Trustee and the
satisfaction and discharge of this Indenture.
Section 6.08. DISQUALIFICATION; CONFLICTING Interests.
The Trustee shall at all times satisfy the requirements of Sections
310(a)(1), (2) and (5) of the Trust Indenture Act. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. The Trustee shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act.
Section 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by Federal, State
or District of Columbia authority and eligible to act as Trustee hereunder in
compliance with Section 310(a)(1) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. Neither the Company nor any
person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee upon any Debt Securities.
Section 6.10. 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 under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt Securities
of one or more series by giving written notice thereof to the Company and, if
applicable, the Subsidiary Guarantors. If an instrument of acceptance by a
successor Trustee 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 Debt Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series, and a successor Trustee appointed, by Act of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series, delivered to the Trustee and to the Company and, if applicable, the
Subsidiary Guarantors.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09
with respect to the Debt Securities of any series and shall fail to
resign after written request therefor by the Company or, if applicable,
the Subsidiary Guarantors, 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 all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee for the Debt Securities of such series.
(e) 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 Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt 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 Debt Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt 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, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 5.14, 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 Debt
Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series in the manner and to the extent provided in Section 1.05 to the Holders
of Debt Securities of such series. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its corporate trust office.
Section 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Debt Securities, each such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company, the Subsidiary Guarantors 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 of the retiring
Trustee, but, on the written request of the Company, the Subsidiary Guarantors
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, subject nevertheless to its
claim, if any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the Subsidiary Guarantors, if applicable, the retiring Trustee and each
successor Trustee with respect to the Debt 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 Debt 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 Debt 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
Debt Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in any 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 other trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of any such 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
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, but, on request of the Company, the Subsidiary
Guarantors 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 Debt Securities of that or
those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company and, if
applicable, the Subsidiary Guarantors, 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) or (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 6.12. 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that 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 Debt 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 Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
Section 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act.
Section 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities of
each such series authenticated by such Authenticating Agent shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities of any series by
the Trustee for such series or to the Trustee's Certificate of Authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee for such series by an Authenticating Agent for such series and a
Certificate of Authentication executed on behalf of such Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or State 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 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 any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Debt Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
or all series of Debt Securities, the Trustee for such series shall upon Company
Request appoint a successor Authenticating Agent, and the Company shall provide
notice of such appointment to all Holders of Debt Securities of such series in
the manner and to the extent provided in Section 1.05. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
herein. The Company agrees to pay to the Authenticating Agent for any series of
Debt Securities from time to time reasonable compensation for its services under
this Section 6.14. The Authenticating Agent for the Debt Securities of any
series shall have no responsibility or liability for any action taken by it as
such in good faith and without negligence at the direction of the Trustee for
such series, and the Trustee shall not be liable or responsible for the acts or
omissions of any Authenticating Agent appointed upon a Company Request.
If an appointment with respect to one or more series is made pursuant to
this Section, the Debt Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within mentioned Indenture.
THE CHASE MANHATTAN BANK
As Trustee
By ________________________
As Authenticating Agent
By:________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as Trustee:
(a) semi-annually on a date not more than 15 days after each Regular Record
Date with respect to an Interest Payment Date, if any, for the Registered
Securities of such series (or on semi-annual dates in each year to be determined
pursuant to Section 3.01 if the Registered Securities of such series do not bear
interest), a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Registered Holders as of the date 15 days next
preceding each such Regular Record Date (or such semi-annual dates, as the case
may be); and
(b) at such other times as the Trustee may request in writing, within 15
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Security
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee at all such
times set forth above all information in the possession or control of the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of the Holders of Bearer Securities of all series; PROVIDED, HOWEVER,
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
Section 7.02. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.01
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.03.
The Trustee may destroy any list furnished to it as provided in Section
7.01 upon receipt of a new list so furnished, destroy any information received
by it as Paying Agent (if so acting) hereunder upon delivering to itself as
Trustee, not earlier than 45 days after an Interest Payment Date, a list
containing the names and addresses of the Holders obtained from such information
since the delivery of the next previous list, if any, destroy any list delivered
to itself as Trustee which was compiled from information received by it as
Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 7.03.
(b) If three or more Holders (hereinafter referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Debt Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders of Debt Securities of a
particular series (in which case the applicants must hold Debt Securities of
such series) or with all Holders of Debt Securities with respect to their rights
under this Indenture or under the Debt Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 7.02(a), or
(ii) inform such applicants as to the approximate number of
Holders of Debt Securities of such series or of all Debt Securities, as
the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
7.02(a), and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon written request of such applicants, mail to
the Holders of Debt Securities of such series or all Holders, as the case may
be, whose names and addresses appear in the information preserved at the time by
the Trustee in accordance with Section 7.02(a), a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Debt Securities of such series or all Holders, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Debt Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
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 7.02(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing of any material
pursuant to a request made under Section 7.02(b).
Section 7.03. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year, beginning with May 15 of the
first year in which Debt Securities are outstanding hereunder, the Trustee
shall, if required by law, mail to each Holder a brief report dated as of such
date that complies with Section 313(a) of the Trust Indenture Act. The Trustee
also shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
The Company shall promptly notify the Trustee in writing if the Debt
Securities of any series become listed on any stock exchange or automated
quotation system.
A copy of each report shall, at the time of its mailing to the Holders, be
mailed to the Company and filed with the Commission and each stock exchange, if
any, on which the Debt Securities of any series are listed.
Section 7.04. REPORTS BY COMPANY.
The Company and , so long as any Debt Securities in respect of which
Subsidiary Guarantees have been issued are Outstanding, each Subsidiary
Guarantor shall:
(1) file with the Trustee, within 15 days after the Company or
such Subsidiary Guarantors, as the case may be, 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 or such Subsidiary
Guarantors, as the case may be, may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act
or, if the Company or such Subsidiary Guarantor is not required to file
information, documents or reports pursuant to either of said Sections,
then the Company or such Subsidiary Guarantor, as the case may be,
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 required from time to time in such rules
and regulations;
(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 and such Subsidiary Guarantor with
the conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the manner
and to the extent provided in Section 7.03, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or proxy 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. Whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal amount of the
Outstanding Debt Securities of any series may take any Act, the fact that the
Holders of such specified percentage have joined therein may be evidenced (a) by
the instrument or instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders.
Section 8.02. PROOF OF OWNERSHIP; PROOF OF EXECUTION OF INSTRUMENTS BY
HOLDER.
The ownership of Registered Securities of any series shall be proved by the
Security Register for such series or by a certificate of the Security Registrar
for such series.
The ownership of Bearer Securities shall be proved by production of such
Bearer Securities or by a certificate executed by any bank or trust company,
which certificate shall be dated and shall state that on the date thereof a
Bearer Security bearing a specified identifying number or other mark was
deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 3.01, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
canceled or paid.
Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a Holder or his agent or proxy shall be sufficient and conclusive
in favor of the Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person of any instrument may
be proved by the certificate of any notary public, or other officer authorized
to take acknowledgments of deeds, that the person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such officer. Where such
execution is by an officer of a corporation or association or a member of a
partnership on behalf of such corporation, association or partnership, as the
case may be, or by any other person acting in a representative capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
The record of any Holders' meeting shall be proved in the manner provided
in Section 9.06.
The Trustee may in any instance require further proof with respect to any
of the matters referred to in this Section so long as the request is a
reasonable one.
Section 8.03. PERSONS DEEMED OWNERS.
The Company, the Subsidiary Guarantors (if Subsidiary Guarantees are
endorsed on such Registered Security) the Trustee and any agent of any of them
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of the
principal of (and premium, if any) and (subject to Section 3.07) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and none of the Company, the
Subsidiary Guarantors (if Subsidiary Guarantees are endorsed on such Registered
Security) the Trustee nor any agent of any of them shall be affected by notice
to the contrary. The Company, the Subsidiary Guarantors (if Subsidiary
Guarantees are endorsed on such Bearer Security) the Trustee, and any agent of
any of them may treat the Holder of any Bearer Security or of any Coupon as the
absolute owner of such Bearer Security or Coupon for the purposes of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or Coupon be overdue, and none of the
Company, the Subsidiary Guarantors (if Subsidiary Guarantees are endorsed on
such Bearer Security), the Trustee nor any agent of any of them shall be
affected by notice to the contrary. All payments made to any Holder, or upon his
order, shall be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for moneys payable upon such Debt Security
or Coupon or, if applicable, Subsidiary Guarantees.
Section 8.04. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 8.02,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and, subject to the provisions of Section 5.08, upon
all future Holders of such Debt Security and all past, present and future
Holders of Coupons, if any, appertaining thereto and of any Debt Securities and
Coupons issued on transfer or in lieu thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Debt Security or Coupons or such other Debt Securities or Coupons.
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. PURPOSES OF MEETINGS.
A meeting of Holders of any or all series may be called at any time and
from time to time pursuant to the provisions of this Article Nine for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee for
such series, or to give any directions to the Trustee for such series,
or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article Five;
(2) to remove the Trustee for such series and appoint
a successor Trustee pursuant to the provisions of Article
Six;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions
of Section 11.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Outstanding Debt Securities of any one or more or all series, as
the case may be, under any other provision of this Indenture or under
applicable law.
Section 9.02. CALL OF MEETINGS BY TRUSTEE.
The Trustee for any series may at any time call a meeting of Holders of
such series to take any action specified in Section 9.01, to be held at such
time or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 1.05. Such notice shall be given
not less than 20 days nor more than 90 days prior to the date fixed for the
meeting.
Section 9.03. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Outstanding Debt
Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 9.01, by giving notice thereof as provided in Section
9.02.
Section 9.04. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Holders a Person shall be (a) a
Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
Section 9.05. REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Trustee for any
series may make such reasonable regulations as it may deem advisable for any
meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.03, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by a majority vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any meeting
each Holder of a Debt Security of the series with respect to which such meeting
is being held or proxy therefor shall be entitled to one vote for each $1,000
principal amount (or such other amount as shall be specified as contemplated by
Section 3.01) of Debt Securities of such series held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Debt Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Outstanding Debt Securities of
such series held by him or instruments in writing duly designating him as the
person to vote on behalf of Holders of Debt Securities of such series. Any
meeting of Holders with respect to which a meeting was duly called pursuant to
the provisions of Section 9.02 or 9.03 may be adjourned from time to time by a
majority of such Holders present and the meeting may be held as so adjourned
without further notice.
Section 9.06. VOTING.
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be taken
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was transmitted as provided in Section
9.02. The record shall show the serial numbers of the Debt Securities voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. NO DELAY OF RIGHTS BY MEETING.
Nothing contained in this Article Nine shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Debt Securities of any series.
ARTICLE TEN
INTENTIONALLY OMITTED
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without prior notice to or the consent of any Holders, the Company, when
authorized by a Board Resolution, the Subsidiary Guarantors, when authorized by
Board Resolutions, 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 Corporation to the
rights of the Company or a Subsidiary Guarantor and the assumption by
such successor of the covenants and other obligations of the Company or
such Subsidiary Guarantor, as the case may be, herein and in the Debt
Securities and Coupons, if any, contained; or
(2) to add to the covenants of the Company or the Subsidiary
Guarantors, for the benefit of the Holders of all or any series of Debt
Securities and the Coupons, if any, appertaining thereto (and if such
covenants are to be for the benefit of less than all series, stating
that such covenants are expressly being included solely for the benefit
of such series), or to surrender any right or power herein conferred
upon the Company or the Subsidiary Guarantors; or
(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series, stating
that such Events of Default are expressly being included solely to be
applicable to such series); or
(4) to add or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Debt Securities of any series in bearer form, registrable
or not registrable, and with or without Coupons, to permit Bearer
Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer Securities
of other authorized denominations or to permit the issuance of Debt
Securities of any series in uncertificated form, PROVIDED that any such
action shall not adversely affect the interests of the Holders of Debt
Securities of any series or any related Coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Outstanding Debt Security or Coupon of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision and as to
which such supplemental indenture would apply; or
(6) to secure the Debt Securities; or
(7) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit
or facilitate the defeasance and discharge of any series of
Securities pursuant to Article Four or Fifteen, PROVIDED that any such
action shall not adversely affect the interests of the Holders of Debt
Securities of such series or any other series of Debt Securities or any
related Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities
and Coupons, if any, of any series as permitted by
Sections 2.01 and 3.01; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of
Debt Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, to eliminate any conflict between the terms of this
Indenture or the Debt Securities and the Trust Indenture Act or to make
any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with any provision of
this Indenture; PROVIDED such other provisions shall not adversely
affect the interests of the Holders of Outstanding Debt Securities or
Coupons, if any, of any series created prior to the execution of such
supplemental indenture in any material respect.
Section 11.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, the Subsidiary Guarantors, when authorized by Board Resolutions, 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 of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture of such Debt Securities or Coupons, if any;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Debt Security of each such series
affected thereby,
(1) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Debt Security, or reduce the
principal amount thereof or the interest thereon or any premium payable
upon redemption thereof, or change the Stated Maturity of or reduce the
amount of any payment to be made with respect to any Coupon, or change
the Currency or Currencies in which the principal of (and premium, if
any) or interest on such Debt Security is denominated or payable, or
reduce the amount of the principal of a Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, or adversely affect the right of
repayment or repurchase, if any, at the option of the Holder, or reduce
the amount of, or postpone the date fixed for, any payment under any
sinking fund or analogous provisions for any Debt Security, or impair
the right to institute suit for the enforcement of any payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or limit the obligation of the Company to
maintain a paying agency outside the United States for payment on
Bearer Securities as provided in Section 12.03; or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders
is required for any supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults or Events of Default
hereunder and their consequences provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 5.13
or Section 12.09, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Debt
Security of each series 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 and Section 12.09, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and
11.01(7); or
(4) reduce the terms and conditions of any obligations of the
Subsidiary Guarantors in respect of the due and punctual payment of the
principal thereof and premium, if any, and interest, if any, thereon or
any sinking fund or analogous payments provided in respect thereof; or
(5) modify any of the provisions of this Indenture
relating to the subordination of the Debt Securities in a
manner adverse to the Holders.
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.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture with respect to one or more particular series of
Debt Securities and Coupons, if any, or which modifies the rights of the Holders
of Debt Securities and Coupons of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Debt Securities and Coupons, if any, of any other series.
Section 11.03. 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 by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, in
addition to the documents required by Section 1.02, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which adversely affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise in a material
way.
Section 11.04. 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 of this Indenture for all purposes; and every Holder
of Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 11.05. 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 11.06. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt Securities and Coupons, if any, of any series 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 form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities and Coupons of
any series so modified as to conform, in the opinion of the Trustee, the Company
and, if applicable, the Subsidiary Guarantors, to any such supplemental
indenture may be prepared and executed by the Company, having, if applicable,
Subsidiary Guarantees endorsed thereon and executed by the Subsidiary
Guarantors, and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities and Coupons of such series.
Section 11.07. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the appropriate Trustee of
any supplemental indenture pursuant to Section 11.02, the Company shall
transmit, in the manner and to the extent provided in Section 1.05, to all
Holders of any series of the Debt Securities affected thereby, a notice setting
forth in general terms the substance of such supplemental indenture.
ARTICLE TWELVE
COVENANTS
Section 12.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of Debt
Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.06, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.01, the interest, if any, due in respect of any temporary Global
Note or permanent Global Note, together with any additional amounts payable in
respect thereof, as provided in the terms and conditions of such Debt Security,
shall be payable only upon presentation of such Debt Security to the Trustee for
notation thereon of the payment of such interest.
Section 12.02. OFFICER'S CERTIFICATE AS TO DEFAULT.
The Company and, so long as Debt Securities in respect of which Subsidiary
Guarantees have been issued are Outstanding, each Subsidiary Guarantor shall
deliver to the Trustee, on or before a date not more than 120 days after the end
of each fiscal year of the Company or a Subsidiary Guarantor, as the case may
be, ending after the date hereof, a certificate of the principal executive
officer, principal financial officer or principal accounting officer stating
whether or not to the best knowledge of the signer thereof the Company or the
Subsidiary Guarantor is in compliance with all covenants and conditions under
this Indenture, and, if the Company or any Subsidiary Guarantor shall be in
default, specifying all such defaults and the nature thereof of which such
signer may have knowledge. For purposes of this Section, such compliance shall
be determined without regard to any period of grace or requirement of notice
provided under this Indenture.
Section 12.03. MAINTENANCE OF OFFICE OR AGENCY.
If Debt Securities of a series are issuable only as Registered Securities,
the Company will maintain or cause to be maintained in each Place of Payment for
such series an office or agency where Debt Securities of that series may be
presented or surrendered for payment, where Debt Securities of that series may
be surrendered for registration of transfer or exchange or redemption, where
Debt Securities of that series that are convertible may be surrendered for
conversion, if applicable, and where notices and demands to or upon the Company
in respect of the Debt Securities of that series and this Indenture may be
served. If Debt Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in the Borough of Manhattan, The City and State of New
York, an office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that
series, if any, may be surrendered for registration of transfer, where Debt
Securities of that series may be surrendered for exchange or redemption, where
Debt Securities of that series that are convertible may be surrendered for
conversion, where notices and demands to or upon the Company in respect of the
Debt Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related Coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Debt Securities of that series and related Coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series, if so provided pursuant to
Section 3.01); PROVIDED, HOWEVER, that if the Debt Securities of that series are
listed on The Stock Exchange of the United Kingdom and the Republic of Ireland,
the Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Debt Securities of that series in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange and redemption and where notices and demands to or upon
the Company in respect of the Debt Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
locations, and any change in the locations, of such offices or agencies. 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, except that Bearer Securities of that
series and the related Coupons may be presented and surrendered for payment at
the offices specified in the applicable Debt Security, and the Company hereby
appoints the Trustee, or in the case of Bearer Securities, such other agent as
is specified pursuant to Section 3.01, as its agent to receive all
presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, HOWEVER, that, if
the Debt Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on any Bearer Security (including
any additional amounts payable on Securities of such series, if so provided
pursuant to Section 3.01) shall be made at the office of the Trustee or the
Company's Paying Agent in the Borough of Manhattan, The City and State of New
York, if (but only if) payment in Dollars of the full amount of such principal,
premium, interest or additional amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate different or additional
offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligations described in the preceding paragraph. The
Company will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any
such different or additional office or agency.
Section 12.04. MONEY FOR DEBT 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 Debt Securities and Coupons, if any, it will, on or before each
due date of the principal of (and premium, if any) or interest on any of the
Debt Securities of such series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum 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 action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to
any series of Debt Securities and Coupons, it will, by or on each due date of
the principal (and premium, if any) or interest on any Debt Securities of such
series, deposit with any such Paying Agent a sum 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 thereto, and (unless any such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent with respect to any series of Debt
Securities other than the Trustee 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 Debt Securities of such series
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debt Securities of such series) in the
making of any payment of principal (and premium, if any) or interest on
the Debt Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture 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 trusts 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.
Subject to any applicable abandoned property law, 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 Debt
Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company upon Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Debt Security or Coupon
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; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may, in its sole
discretion, at the expense of the Company cause to be transmitted in the manner
and to the extent provided by Section 1.05, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 12.05. CORPORATE EXISTENCE.
Subject to any supplemental indentures hereto or Officers' Certificates
creating any series, the Company and, so long as any Debt Securities in respect
of which Subsidiary Guarantees have been issued are Outstanding, the Subsidiary
Guarantors, will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; PROVIDED, HOWEVER, that neither the Company nor any
Subsidiary Guarantor shall be required to preserve any such right or franchise
if its Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of its business.
Section 12.06. PURCHASE OF DEBT SECURITIES BY COMPANY.
If the Debt Securities of a series are listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland and such stock exchange shall so
require, the Company will not purchase any Debt Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Debt Securities of
that series as shown in The Stock Exchange Daily Official List for the last
trading day preceding the date of purchase.
Section 12.07. INTENTIONALLY OMITTED
Section 12.08. INTENTIONALLY OMITTED
Section 12.09. WAIVER OF CERTAIN COVENANTS.
With respect to the Debt Securities of any series, the Company and the
Subsidiary Guarantors may omit in any particular instance to comply with any
term, provision or condition set forth in Section 12.05 (and, if so specified
pursuant to Section 3.01, any other covenant not set forth herein and specified
pursuant to Section 3.01 to be applicable to the Debt Securities of any series,
except as otherwise provided pursuant to Section 3.01) with respect to the Debt
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Debt 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 expressly so waived, and, until such waiver shall become
effective, the obligations of the Company and the Subsidiary Guarantors and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
Section 13.01. APPLICABILITY OF ARTICLE.
Debt Securities of any series which are redeemable before their Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Debt Securities of any series) in
accordance with this Article.
Section 13.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem (or, in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series pursuant to Section 13.03, the Company shall, at least 60 days before the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Debt Securities of such series to be redeemed. In the
case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restrictions.
Section 13.03. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED.
Except in the case of a redemption in whole of the Bearer Securities or the
Registered Securities of such series, if less than all the Debt Securities of
any series are to be redeemed at the election of the Company, the particular
Debt Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Debt Securities of such
series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Debt Securities of
such series or any integral multiple thereof) of the principal amount of Debt
Securities of such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series pursuant to Section 3.02 in the
Currency in which the Debt Securities of such series are denominated. The
portions of the principal amount of Debt Securities so selected for partial
redemption shall be equal to the minimum authorized denominations for Debt
Securities of such series pursuant to Section 3.02 in the Currency in which the
Debt Securities of such series are denominated or any integral multiple thereof,
except as otherwise set forth in the applicable form of Debt Securities. In any
case when more than one Registered Security of such series is registered in the
same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Registered Security of
such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Debt Securities shall relate, in
the case of any Debt Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debt Security which has been or is to be
redeemed.
Section 13.04. NOTICE OF REDEMPTION.
Notice of redemption shall be given by the Company, or at the Company's
request, by the Trustee in the name and at the expense of the Company, not less
than 30 days and not more than 60 days prior to the Redemption Date to the
Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 1.05. Any
notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any
notice of redemption with respect to the Holder of any other Debt Security of
such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by
the Company pursuant to provisions contained in this Indenture or the
terms of the Debt Securities of such series or a supplemental indenture
establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to
be redeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and
that interest thereon, if any, shall cease to accrue on and after said
date,
(6) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or
Coupons will be deducted from the Redemption Price,
(7) the Place or Places of Payment where such Debt
Securities are to be surrendered for payment of the Redemption Price,
(8) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section
3.05(b) or otherwise, the last date on which such exchanges may be
made, and
(9) that the redemption is for a sinking fund, if such is the
case.
Section 13.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date for any Debt Securities, 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 12.04) an amount of money in the Currency or Currencies in which such
Debt Securities are denominated (except as provided pursuant to Section 3.01 or
3.10) sufficient to pay the Redemption Price of such Debt Securities or such
amount or any portions thereof which are to be redeemed on that date.
Section 13.06. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, any Debt Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price in the Currency in which the Debt Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 or 3.10), and
from and after such date (unless the Company shall default in the payment of the
Redemption Price) such Debt Securities shall cease to bear interest. Upon
surrender of any such Debt Security for redemption in accordance with said
notice, such Debt Security shall be paid by the Company at the Redemption Price;
PROVIDED, HOWEVER, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 12.03) and, unless otherwise specified as contemplated by
Section 3.01, only upon presentation and surrender of Coupons for such interest;
and PROVIDED, FURTHER, that, unless otherwise specified as contemplated by
Section 3.01, installments of interest on Registered Securities which have a
Stated Maturity on or prior to the Redemption Date for such Debt Securities
shall be payable according to the terms of such Debt Securities and the
provisions of Section 3.07.
If, as a result of the failure of the Company to deposit sufficient funds
with the Trustee, any Debt 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 Debt Security.
If any Coupon Security surrendered for redemption shall not be accompanied
by all Coupons appertaining thereto maturing on or after the Redemption Date,
the Redemption Price for such Coupon Security may be reduced by an amount equal
to the face amount of all such missing Coupons. If thereafter the Holder of such
Coupon shall surrender to any Paying Agent outside the United States any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted. The surrender of such missing Coupon or Coupons may be waived by the
Company, the Subsidiary Guarantors and the Trustee, if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless.
Section 13.07. DEBT SECURITIES REDEEMED IN PART.
Any Debt Security which is to be redeemed only in part shall be surrendered
at the Corporate Trust Office or such other office or agency of the Company as
is specified pursuant to Section 3.01 (in the case of Registered Securities) and
at an office of the Trustee or such other office or agency of the Company
outside the United States as is specified pursuant to Section 3.01 (in the case
of Bearer Securities) with, if the Company, the Security Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company, the Security Registrar 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 Debt Security without service charge, a new Debt Security or Debt
Securities of the same series, of like tenor and form, 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 Debt Security
so surrendered, and, in the case of a Coupon Security, with appropriate Coupons
attached. In the case of a Debt Security providing appropriate space for such
notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Debt Security or Debt Securities as aforesaid, may make a
notation on such Debt Security of the payment of the redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
Section 14.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Debt Securities of a series except as otherwise specified
pursuant to Section 3.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Debt Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Debt Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Debt Securities of any
series, the amount of any cash sinking fund payment may be subject to reduction
as provided in Section 14.02. Each sinking fund payment shall be applied to the
redemption of Debt Securities of any series as provided for by the terms of Debt
Securities of such series.
Section 14.02. SATISFACTION OF MANDATORY SINKING FUND PAYMENTS WITH DEBT
SECURITIES.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than sixteen months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the Trustee
Debt Securities of such series (together with the unmatured Coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Debt Securities of such series which have been redeemed through
the application of mandatory sinking fund payments pursuant to the terms of the
Debt Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such sinking fund payment and stating that the Debt Securities
of such series were originally issued by the Company by way of bona fide sale or
other negotiation for value, provided that such Debt Securities shall not have
been previously so credited. Such Debt Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
Section 14.03. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or Currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 3.01 or 3.10) and the portion thereof, if any, which is to be satisfied
by delivering and crediting Debt Securities of such series pursuant to Section
14.02 and whether the Company intends to exercise its rights to make a permitted
optional sinking fund payment with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Company shall be obligated to
make the cash payment or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Debt
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit Debt Securities as provided in Section 14.02 and
without the right to make any optional sinking fund payment with respect to such
series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Debt Securities of any particular series shall be applied by the Trustee
(or by the Company if the Company is acting as its own Paying Agent) on the
sinking fund payment date on which such payment is made (or, if such payment is
made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or by the Company if the Company is acting
as its own Paying Agent) to the redemption of Debt Securities shall be added to
the next sinking fund payment received by the Trustee (or if the Company is
acting as its own Paying Agent, segregated and held in trust as provided in
Section 12.04) for such series and, together with such payment (or such amount
so segregated), shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys with respect to the Debt Securities of
any particular series held by the Trustee (or if the Company is acting as its
own Paying Agent, segregated and held in trust as provided in Section 12.04) on
the last sinking fund payment date with respect to Debt Securities of such
series and not held for the payment or redemption of particular Debt Securities
of such series shall be applied by the Trustee (or by the Company if the Company
is acting as its own Paying Agent), together with other moneys, if necessary, to
be deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Debt Securities of such series at Maturity.
The Trustee shall select or cause to be selected the Debt Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
13.03 and the Company shall cause notice of the redemption thereof to be given
in the manner provided in Section 13.04. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 13.06.
On or before each sinking fund payment date, the Company shall pay to the
Trustee (or, if the Company is acting as its own Paying Agent, the Company shall
segregate and hold in trust as provided in Section 12.04) in cash a sum, in the
Currency or Currencies in which Debt Securities of such series are denominated
(except as provided pursuant to Sections 3.01 or 3.10), equal to the principal
and any interest accrued to the Redemption Date for Debt Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section.
Neither the Trustee nor the Company shall redeem any Debt Securities of a
series with sinking fund moneys or mail any notice of redemption of Debt
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any Debt
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the Debt
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Company, if the Company is then acting as its own Paying Agent) shall redeem
such Debt Securities if cash sufficient for that purpose shall be deposited with
the Trustee (or segregated by the Company) for that purpose in accordance with
the terms of this Article. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Debt Securities and Coupons, if any, of such series; PROVIDED,
HOWEVER, that in case such default or Event of Default shall have been cured or
waived as provided herein, such moneys shall thereafter be applied on or prior
to the next sinking fund payment date for the Debt Securities of such series on
which such moneys may be applied pursuant to the provisions of this Section.
ARTICLE FIFTEEN
DEFEASANCE
Section 15.01. APPLICABILITY OF ARTICLE.
If, pursuant to Section 3.01, provision is made for the defeasance of Debt
Securities of a series, and if the Debt Securities of such series are Registered
Securities and denominated and payable only in Dollars (except as provided
pursuant to Section 3.01) then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 3.01 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated in a Foreign Currency or Currencies or for Bearer Securities may be
specified pursuant to Section 3.01.
Section 15.02. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT
OBLIGATIONS.
At the Company's option, either (a) the Company and the Subsidiary
Guarantors shall be deemed to have been Discharged (as defined below) from their
respective obligations with respect to Debt Securities of any series ("legal
defeasance option") or (b) if so specified pursuant to Section 3.01, the Company
and the Subsidiary Guarantors shall cease to be under any obligation to comply
with any of their respective obligations or restrictive covenants added for the
benefit of such series pursuant to Section 3.01) ("covenant defeasance option"),
in either case at any time after the applicable conditions set forth below have
been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Debt Securities of such series (i) money in an amount,
or (ii) U.S. Government Obligations (as defined below) which through
the payment of interest and principal in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination of (i)
and (ii), sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge
each installment of principal (including any mandatory sinking fund
payments) of and premium, if any, and interest on, the Outstanding Debt
Securities of such series on the dates such installments of interest or
principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to
the Debt Securities of that series to have a conflicting interest as
defined in Section 6.08 and for purposes of the Trust Indenture Act
with respect to the Debt 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
instrument to which the Company is a party or by which it is bound;
(4) if the Debt Securities of such series are then listed on
any national securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel or a letter or other document from
such exchange to the effect that the Company's exercise of its option
under this Section would not cause such Debt Securities to be delisted;
(5) no Event of Default or event (including such deposit)
which, with notice or lapse of time or both, would become an Event of
Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit and, with
respect to the legal defeasance option only, no Event of Default under
Section 5.01(5) or Section 5.01(6) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 5.01(5) or Section 5.01(6) shall have occurred and be
continuing on the 91st day after such date;
(6) the Company shall have delivered to the Trustee an Opinion
of Counsel or a ruling from the Internal Revenue Service to the effect
that such deposit, defeasance or the Holders of the Debt Securities of
such series will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit, defeasance or Discharge; and
(7) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel in
accordance with Section 1.02.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.01(5) or Section 5.01(6) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.01(5) or Section 5.01(6) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated. Money and securities held
in trust pursuant to a legal defeasance shall not be subject to Article Sixteen.
"Discharged" means that the Company and the Subsidiary Guarantors shall be
deemed to have paid and discharged the entire indebtedness represented by, and
obligations under, the Debt Securities of such series and to have satisfied all
the obligations under this Indenture relating to the Debt Securities of such
series (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of Holders of Debt
Securities of such series to receive, from the trust fund described in clause
(1) above, payment of the principal of (and premium, if any) and interest on
such Debt Securities when such payments are due, (B) the Company's obligations
with respect to the Debt Securities of such series under Sections 3.04, 3.05,
3.06, 6.07, 12.03 and 15.03 and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the timely payment of which its full faith
and credit is pledged, or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt; PROVIDED that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
Section 15.03. DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 15.02 in respect of Debt Securities of a series shall be
held in trust and applied by it, in accordance with the provisions of such Debt
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Debt Securities, of all sums due and to become
due thereon for principal (and premium, if any) and interest, if any, but such
money need not be segregated from other funds except to the extent required by
law.
Section 15.04. REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are not required for the payment of the principal of
(and premium, if any) and interest on the Debt Securities of any series for
which money or U.S. Government Obligations have been deposited pursuant to
Section 15.02.
The provisions of the last paragraph of Section 12.04 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any series of Debt Securities for
which money or U.S. Government Obligations have been deposited pursuant to
Section 15.02.
ARTICLE SIXTEEN
GUARANTEES
Section 16.01. GUARANTEES.
If Debt Securities of or within a series are specified, as contemplated by
Section 3.01, to be guaranteed by the Subsidiary Guarantors, then the Subsidiary
Guarantors hereby fully and unconditionally guarantee, on a joint and several
basis, to each Holder of any such Debt Security which is authenticated and
delivered by the Trustee and to each Holder of any Coupon, and to the Trustee on
behalf of each such Holder, the due and punctual payment of the principal of
(and premium, if any, on) and interest (including, in the case of default,
interest on principal and, to the extent permitted by applicable law, on overdue
interest and including any additional interest required to be paid according to
the terms of any such Debt Security or Coupon), if any, on each such Debt
Security, and the due and punctual payment of any sinking fund payment (or
analogous obligation), if any, provided for with respect to any such Debt
Security, when and as the same shall become due and payable, whether at Stated
Maturity, upon redemption, upon acceleration or otherwise, according the terms
thereof and of this Indenture (the "Guarantor Obligations"). In case of the
failure by the Company or any successor thereto punctually to pay any such
principal, premium, interest or sinking fund payment, the Subsidiary Guarantors
hereby, jointly and severally, agree to cause any such payment to be made
punctually when and as the same shall become due and payable, whether at Stated
Maturity, upon redemption, upon declaration of acceleration or otherwise, as if
such payment were made by the Company.
Each of the Subsidiary Guarantors hereby, jointly with each other
Subsidiary Guarantor and severally with each other Subsidiary Guarantor, agrees
that its Guarantor Obligations hereunder shall be as if it were principal debtor
and not merely surety and shall be absolute and unconditional, irrespective of
the identity of the Company, the validity, regularity or enforceability of any
such Debt Security or Coupon or this Indenture, the failure to enforce the same,
any waiver, modification, consent or indulgence granted with respect thereto by
the Holder of any such Debt Security or Coupon with respect to any provisions
thereof, the recovery of any judgment against the Company or any action to
enforce the same, or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor. Each of the
Subsidiary Guarantors hereby waives the benefits of diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that their
Subsidiary Guarantees will not be discharged except by complete performance of
all other obligations contained in any such Debt Security or Coupon or in this
Subsidiary Guarantee.
If the Trustee or the Holder of any Debt Security or Coupon is required by
any court or otherwise to return to the Company or the Subsidiary Guarantors, or
any custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official acting in relation to the Company or the Subsidiary Guarantors,
any amount paid to the Trustee or such Holder in respect of a Debt Security or
any Coupon, the Subsidiary Guarantees, to the extent theretofore discharged,
shall be reinstated in full force and effect. The Subsidiary Guarantors further
agree, to the fullest extent that they may lawfully do so, that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article Five hereof for the purposes of this Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition extant
under any applicable bankruptcy law preventing such acceleration in respect of
the obligations guaranteed hereby.
Each of the Subsidiary Guarantors shall be subrogated to all rights of the
Holders of the Debt Securities of a series (and of any Coupons appertaining
thereto) against the Company in respect of any amounts paid by such Subsidiary
Guarantor on account of such Debt Securities or any Coupons appertaining thereto
or this Indenture; PROVIDED, HOWEVER, that such Subsidiary Guarantor shall not
be entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of (and premium, if any, on) and
interest, if any, on all Debt Securities of such series shall have been
indefeasibly paid in full.
Section 16.02. EXECUTION AND DELIVERY OF GUARANTEES. To evidence their
Guarantees with respect to Debt Securities of or within any series that are
specified, as contemplated by Section 3.01, to be guaranteed by the Subsidiary
Guarantors, the Subsidiary Guarantors hereby agree to execute the Subsidiary
Guarantees, in a form established pursuant to Section 2.01, to be endorsed on
each Debt Security of such series authenticated and delivered by the Trustee.
Each such Guarantee shall be executed on behalf of the Guarantor by its Chairman
of the Board, or its Vice Chairman of the Board, or its President, or one of its
Executive Vice Presidents or Vice Presidents, or by its Treasurer or one of its
Assistant Treasurers. The signature of any of these officers on the Subsidiary
Guarantees may be manual or facsimile.
Subsidiary Guarantees bearing the manual or facsimile signatures of the
individuals who were the proper officers of the Subsidiary Guarantors shall bind
the Subsidiary Guarantors, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of the
Debt Securities upon which such Subsidiary Guarantees are endorsed or did not
hold such offices at the date of such Debt Securities.
The delivery of any Debt Securities by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantees endorsed thereon on behalf of the Subsidiary Guarantors.
The Subsidiary Guarantors hereby agree that their Subsidiary Guarantees set
forth in this Article shall remain in full force and effect notwithstanding any
failure to endorse on each Debt Security a notation of such Subsidiary
Guarantee.
Section 16.03. LIMITATION ON SUBSIDIARY GUARANTORS' LIABILITY.
The Subsidiary Guarantors, and by its acceptance of a Debt Security each
Holder, hereby confirms that it is the intention of all such parties that in no
event shall any Guarantor Obligations under the Subsidiary Guarantees constitute
or result in a fraudulent transfer or conveyance for purposes of, or result in a
violation of, any United States federal, or applicable United States state,
fraudulent transfer or conveyance or similar law. To effectuate the foregoing
intention, in the event that the Guarantor Obligations, if any, in respect of
the Debt Securities of any series would, but for this sentence, constitute or
result in such a fraudulent transfer or conveyance or violation, then the
liability of the Subsidiary Guarantors under their Subsidiary Guarantees in
respect of the Debt Securities of such series shall be reduced to the extent
necessary to eliminate such fraudulent transfer or conveyance or violation under
the applicable fraudulent transfer or conveyance or similar law.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
THE MONEY STORE INC.
By: /S/ Morton Dear
Title: Executive Vice President
THE CHASE MANHATTAN BANK,
as Trustee
By:/S/ Kathleen Perry
Title: Second Vice President
THE MONEY STORE/D.C. INC.
THE MONEY STORE/KENTUCKY INC.
THE MONEY STORE/MINNESOTA INC.
THE MONEY STORE AUTO FINANCE INC.
CLASSNOTES INC.
DYNA-MARK, INC.
EQUITY INSURANCE AGENCY, INC.
MAJOR BROKERAGE CO., INC.
PRINCETON ESCROW
THE MONEY STORE HOME EQUITY CORP.
THE MONEY STORE INVESTMENT
CORPORATION
THE MONEY STORE OF NEW YORK INC.
THE COMMERCE GROUP
THE MONEY STORE COMMERCIAL
MORTGAGE INC.
THE MONEY STORE SERVICE CORP.
TMS MORTGAGE INC.
THE MONEY STORE U.K. INC.
THE MONEY STORE REALTY INC.
TMS VENTURE HOLDINGS, INC.,
as Subsidiary Guarantors
By: /s/Morton Dear
Title: Executive Vice-President of
each of the Subsidiary
Guarantors, other than The
Money Store Service Corp.
of which he is President
<PAGE>
STATE OF NEW JERSEY )
: ss.:
COUNTY OF UNION )
On the 15th day of April, 1997, before me personally came Morton Dear, to
me known, who, being by me duly sworn, did depose and say that his office is
located at 2840 Morris Avenue, Union, New Jersey 07083; that he is Executive
Vice President and Chief Financial Officer of The Money Store Inc. one of the
corporations described in and which executed the foregoing instrument; and that
he signed his name thereto by like authority.
/s/ Eleonore Ferro
Notary Public
SEAL
<PAGE>
STATE OF NY )
: ss.:
COUNTY OF NY )
On the 15th day of April, 1997, before me personally came Kathleen Perry,
to me known, who, being by me duly sworn, did depose and say that her office is
located at 450 West 33rd Street, 15th Floor, New York, New York 10004; that she
is, Second Vice President of The Chase Manhattan Bank, one of the corporations
described in and which executed the foregoing instrument; and that she signed
her name thereto by like authority.
/s/ Emily Fayan
Notary Public
SEAL
<PAGE>
STATE OF NEW JERSEY )
: ss.:
COUNTY OF UNION )
On the 15th day of April, 1997, before me personally came Morton Dear, to
me known, who, being by me duly sworn, did depose and say that his office is
located at 2840 Morris Avenue, Union, New Jersey 07083; that he is
Executive Vice President of the Subsidiary Guarantors certain of the
corporations described in and which executed the foregoing instrument; and that
he signed his name thereto by like authority.
/s/ Eleonore Ferro
Notary Public
SEAL
<PAGE>
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
------------------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof and except as set forth below
principal amount of the above captioned Debt Securities held by you for our
account (i) is owned by person(s) that are not United States person(s) (as
defined below), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (as defined in Section
1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its
own behalf or through its agent, that you may advise the Company or the
Company's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the Treasury regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury regulations), and in addition if the owner of the Debt
Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this is
to further certify that such financial institution has not acquired the Debt
Securities for the purpose of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the beneficial interest in the temporary global Security held by you for our
account in accordance with your operating procedures if any applicable statement
herein is not correct on such date, and in the absence of any such notification
it may be assumed that this certification applies as of such date.
This certificate excepts and does not relate to $____________ principal
amount of Debt Securities held by you for our account as to which we are not
able to provide a certificate in this form. We understand that exchange of such
portion of the temporary global Note for definitive Bearer Securities or
interests in a permanent global Note cannot be made until we are able to provide
a certificate in this form.
We understand that this certificate is required in connection with certain
tax laws and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States Person" means any citizen or resident of the United States,
any corporation, partnership or other entity created or organized in or under
the laws of the United States and any estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated:________________________, 19__
[To be dated no earlier than the
10th day before the Exchange Date]
By:_____________________________
As, or as agent
for, the beneficial owner(s)
of the portion of the temporary
global Note to which this
certificate relates.
<PAGE>
Exhibit B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, SOCIETE ANONYME IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
------------------------
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof, $___________
principal amount of the above-captioned Debt Securities (i) is owned by
person(s) that are not United States person(s) (as defined below), (ii) is owned
by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the Debt
Securities through foreign branches of United States financial institutions and
who hold the Debt Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Company or the Company's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the Treasury regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for the purpose of resale
during the restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of
the United States Treasury regulations), and in addition United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Debt Securities for the purpose of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We further certify (i) that we are not making available for exchange or
collection of any interest any portion of the temporary Global Note excepted in
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange or collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with certain
tax laws and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United States,
any corporation, partnership or other entity created or organized in or under
the laws of the United States and any estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
"United States person" means the United States of America (including the States
and the District of Columbia) and its "possessions" which include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
Dated:________________________, 19__
[To be dated no earlier than the Exchange Date]
By: ------------------------------
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as
Operator of the Euro-Clear System]
[CEDEL BANK, SOCIETE ANONYME]
Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
(Senior Debt Securities)
FIRST SUPPLEMENTAL INDENTURE dated as of April 15, 1997 (this "First
Supplemental Indenture"), to the Indenture, dated as of April 15, 1997 (the
"Indenture"), among THE MONEY STORE INC., a New Jersey corporation (hereinafter
called the "Company"), having its principal executive office at 2840 Morris
Avenue, Union, New Jersey 07083, THE CHASE MANHATTAN BANK, a New York banking
corporation (hereinafter called the "Trustee"), having its Corporate Trust
Office at 450 West 33rd Street, New York, New York 10001, and the subsidiaries
of the Company which are Subsidiary Guarantors under the Indenture (the
"Subsidiary Guarantors").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the execution and delivery of the
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, bonds or other evidences of indebtedness (hereinafter called
the "Debt Securities") to be issued in one or more series, as provided in the
Indenture; and
WHEREAS, each of the Subsidiary Guarantors has duly authorized the
execution and delivery of the Indenture to provide for the issuance from time to
time of its unsecured Subsidiary Guarantee (as defined in the Indenture) of the
Company's Debt Securities; and
WHEREAS, the Company desires and has requested the Trustee to join it in
the execution and delivery of this First Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series of Debt
Securities designated as its 8.05% Senior Notes due 2002 in the aggregate
principal amount of $175,000,000, a specimen copy of which is attached hereto as
Exhibit A (the "Notes"), on the terms set forth herein, such Notes to be
guaranteed by the Subsidiary Guarantors, on the terms set forth herein; and
WHEREAS, Section 11.01 of the Indenture provides that a supplemental
indenture may be entered into by the Company, the Subsidiary Guarantors and the
Trustee without the consent of any holder of any Debt Securities to, inter alia,
establish the terms of any Debt Securities as permitted by Sections 2.01 and
3.01 of the Indenture, provided certain conditions are met; and
WHEREAS, the conditions set forth in the Indenture for the execution and
delivery of this First Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid agreement of the Company, the Subsidiary Guarantors and the Trustee, in
accordance with its terms, and a valid amendment of, and supplement to, the
Indenture have been done.
NOW THEREFORE, there is hereby established a series (as that term is used
in Section 3.01 of the Indenture) of Debt Securities to be issued under the
Indenture, which series of Debt Securities shall have the terms set forth herein
and in the Notes, and in consideration of the premises and the purchase and
acceptance of the Notes by the holders thereof, the Company and the Subsidiary
Guarantors mutually covenant and agree with the Trustee, for the equal and
proportionate benefit of all holders of the Notes, that the Indenture is
supplemented and amended, to the extent and for the purposes expressed herein,
as follows:
ARTICLE ONE
SCOPE OF THIS FIRST
SUPPLEMENTAL INDENTURE
Section 1.1. CHANGES, ETC. APPLICABLE ONLY TO THE NOTES. The changes,
modifications and supplements to the Indenture effected by this First
Supplemental Indenture in Sections 2.1 through 2.6 hereof shall be applicable
only with respect to, and govern the terms of, the Notes, which shall be limited
in aggregate principal amount to $175,000,000, except as provided in Section
3.01(2) of the Indenture, and shall not apply to any other Debt Securities which
may be issued under the Indenture unless a supplemental indenture with respect
to such other Debt Securities specifically incorporates such changes,
modifications and supplements.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
Section 2.1. AMENDMENT TO SECTION 1.01. Section 1.01 of the Indenture is
hereby amended by adding the following definition in its proper alphabetical
order:
"Notes" means $175,000,000 aggregate principal amount of the Company's
8.05% Senior Notes due 2002.
Section 2.2. AMENDMENT TO ARTICLE TEN. Article Ten of the Indenture is
hereby amended by deleting the words "Intentionally Omitted" and inserting
instead "Consolidation, Merger, Conveyance, Transfer or Lease" and adding the
following Sections 10.01 and 10.02:
"Section 10.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into
any other corporation or convey, transfer or lease all or substantially
all of its assets as an entirety to any Person, unless:
(1) the successor entity formed by such consolidation
or into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, all or substantially all of
the assets of the Company as an entirety (the "successor company")
shall be a corporation, partnership, limited liability company or
business trust organized and existing under the laws of the United
States or any State or the District or 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, if any) and interest on all
the Notes and the performance of every covenant of this Indenture 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
happened 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 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 10.01, assets of the
Company which did not account for at least 50% of the consolidated net
income of the Company for its most recent fiscal year ending prior to
the consummation of such transactions shall not in any event be deemed
to be all or substantially all of the assets of the Company.
Section 10.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other
Person, or any conveyance, transfer or lease of all or substantially
all of the assets of the Company as an entirety in accordance with
Section 10.01, the successor company 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 under this Indenture, as
supplemented, with the same effect as if such successor company had
been named as the Company herein, and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under
this Indenture, as supplemented, and the Notes."
Section 2.3. AMENDMENT TO SECTION 12.07. Section 12.07 of the Indenture is
hereby amended by deleting the words "Intentionally Omitted" and inserting
instead the following new Section 12.07:
Section 12.07. LIMITATION UPON LIENS.
The Company will not at any time directly or
indirectly create or assume, otherwise than in favor of the Company or
a Wholly-Owned Subsidiary, any pledge or other lien or encumbrance upon
any stock of any Subsidiary directly owned by the Company, whether now
owned or hereafter acquired, without making effective provision (and
the Company covenants that in such case it will make or cause to be
made, effective provision) whereby the Notes shall be secured by such
pledge, lien or encumbrance equally and ratably with any and all other
obligations and indebtedness thereby secured, so long as any such other
obligations and indebtedness shall be so secured.
For purposes of this Section 12.07, "Subsidiary" shall mean a
Subsidiary which accounted for at least 25% of the consolidated net
income of the Company for its most recent fiscal year ending prior to
the creation or assumption of such pledge, lien or encumbrance."
Section 2.4 RANKING. The Notes will be senior unsecured obligations of the
Company, ranking in right of payment, on a pari passu basis, with all existing
and future unsecured and unsubordinated indebtedness and guarantees of the
Company and senior to all existing and future subordinated indebtedness of the
Company.
Section 2.5 TERMS OF THE NOTES. In accordance with Section 3.01 of the
Indenture, the Notes are subject to the terms set forth in this First
Supplemental Indenture including without limitation Exhibit A hereto, the terms
of which are hereby incorporated in their entirety by reference. In addition to
the other terms of the Notes which are set forth elsewhere in this First
Supplemental Indenture and Exhibit A hereto, the Notes are subject to all of the
provisions of the Indenture including, without limitation, the Company's legal
defeasance option and covenant defeasance option pursuant to Section 15.02 of
the Indenture. For purposes of Section 15.02 of the Indenture, the restrictive
covenants referred to therein shall include the covenants set forth in Article
Two of this First Supplemental Indenture.
Section 2.6 SUBSIDIARY GUARANTEES. In accordance with Section 16.01 of the
Indenture, the Notes are subject to the terms set forth in the Guarantee of the
Subsidiary Guarantors included in the form of Note attached hereto as Exhibit A.
With respect to any Subsidiary Guarantor, such Guarantee shall rank equally in
right of payment, on a pari passu basis, will all existing and future unsecured
and unsubordinated indebtedness and guarantees of such Subsidiary Guarantor,
including the Subsidiary Guarantor's guarantee of the Senior Unsecured Notes (as
defined below). Such Guarantee shall terminate with respect to any Subsidiary
Guarantor upon such Subsidiary Guarantor's termination as a guarantor of the
Senior Unsecured Notes. The Company hereby agrees that if any other Subsidiary
shall in the future become a guarantor of the Senior Unsecured Notes, the
Company shall cause such Subsidiary to become an additional Subsidiary
Guarantor. "Senior Unsecured Notes" means (i) the Company's 7.63% Senior Notes
due April 15, 1998 issued pursuant to that certain Note Purchase Agreement dated
as of April 15, 1993 (as amended from time to time), (ii) the Company's 9.0%
Senior Notes due March 31, 2002 issued pursuant to that certain Note Purchase
Agreement dated as of April 6, 1995 (as amended from time to time), (iii) the
Company's 9.16% Senior Notes due September 9, 1997 issued pursuant to that
certain Note Purchase Agreement dated as of September 9, 1992 (as amended from
time to time), (iv) the Company's 7.73% Senior Notes due September 30, 2000
issued pursuant to that certain Note Purchase Agreement dated as of September
30, 1993 (as amended from time to time), (v) the Company's 7.94% Senior Notes
due September 30, 2000 issued pursuant to that certain Note Purchase Agreement
dated as of September 30, 1993 (as amended from time to time), and (vi) the
Company's 8.87% Senior Notes due September 30, 1999 issued pursuant to that
certain Note Purchase Agreement dated as of September 20, 1994 (as amended from
time to time), (vii) the Company's 8.94% Senior Notes due September 30, 2000
issued pursuant to that certain Note Purchase Agreement dated as of September
20, 1994 (as amended from time to time), (viii) the Company's 7.83% Senior Notes
due 1999 issued pursuant to that certain Note Purchase Agreement dated as of
September 13, 1995 (as amended from time to time), (ix) the Company's 7.88%
Senior Notes due 2002 issued pursuant to that certain Note Purchase Agreement
dated as of September 13, 1995 (as amended from time to time) and (x) the
Company's 8.03% Senior Notes due 2001 issued pursuant to that certain Note
Purchase Agreement dated as of September 13, 1995 (as amended from time to
time).
ARTICLE THREE
MISCELLANEOUS
Section 3.1. DEFINED TERMS. Unless otherwise provided in this First
Supplemental Indenture, all defined terms used in this First Supplemental
Indenture shall have the meanings assigned to them in the Indenture.
Section 3.2. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE
ACT OF 1939. If and to the extent that any provision of this First Supplemental
Indenture limits, qualifies or conflicts with another provision included in this
First Supplemental Indenture or in the Indenture which is required to be
included herein or therein by any of Sections 310 to 317, inclusive, of the
Trust Indenture Act of 1939, as amended, such required provision shall control.
SECTION 3.3. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES
SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE
OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW
RULES OF SAID STATE.
Section 3.4. COUNTERPARTS. This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
Section 3.5. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 3.6. SEVERABILITY OF PROVISIONS. In case any provision in this
First Supplemental Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 3.7. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
First Supplemental Indenture by the parties hereto shall bind their respective
successors and assigns and inure to the benefit of their respective successors
and assigns, whether so expressed or not.
Section 3.8. BENEFIT OF SUPPLEMENTAL INDENTURE. Nothing in this First
Supplemental Indenture, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent and their
successors hereunder, and the Holders of the Notes, any benefit or any legal or
equitable right, remedy or claim under this First Supplemental Indenture.
Section 3.9. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR SUFFICIENCY. The
recitals contained herein, except the Trustee's certificate of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the sufficiency of this First Supplemental Indenture.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the day and year first above written.
THE MONEY STORE INC.
By:/s/ Morton Dear
Name: Morton Dear
Title: Executive Vice President
THE CHASE MANHATTAN BANK,
as Trustee
By:/s/ Kathleen Perry
Name: Kathleen Perry
Title:Second Vice President
THE MONEY STORE/D.C. INC.
THE MONEY STORE/KENTUCKY INC.
THE MONEY STORE/MINNESOTA INC.
THE MONEY STORE AUTO FINANCE INC.
CLASSNOTES INC.
DYNA-MARK, INC.
EQUITY INSURANCE AGENCY, INC.
MAJOR BROKERAGE CO., INC.
PRINCETON ESCROW
THE MONEY STORE HOME EQUITY CORP.
THE MONEY STORE INVESTMENT CORP.
THE MONEY STORE OF NEW YORK INC.
THE COMMERCE GROUP
THE MONEY STORE COMMERCIAL MORTGAGE INC.
THE MONEY STORE SERVICE CORP.
TMS MORTGAGE INC.
THE MONEY STORE U.K. INC.
THE MONEY STORE REALTY INC.
TMS VENTURE HOLDINGS, INC.,
as Subsidiary Guarantors
By:/s/ Morton Dear
Name: Morton Dear
Title: Executive Vice President
of each of the Subsidiary
Guarantors, other than The
Money Store Service Corp.
of which he is President
<PAGE>
EXHIBIT A
[FORM OF FACE OF SENIOR NOTE]
THE MONEY STORE INC.
8.05% Senior Notes Due 2002
Unconditionally guaranteed as to payment of principal of and interest by
the subsidiaries of The Money Store Inc. signatories hereto.
REGISTERED REGISTERED
No. R-_
CUSIP 60934T AN1 $------------
If this Note is registered in the name of The Depository Trust
Company (the "Depositary") (55 Water Street, New York, New
York) or its nominee, this Note may not be transferred except
as a whole by the Depositary to a nominee of the Depositary or
by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such
successor Depositary, unless and until this Note is exchanged
in whole or in part for Notes in definitive form. Unless this
certificate is presented by an authorized representative of the
Depositary to the Company or 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 Depositary
(and any payment is made to Cede & Co. or to such other entity
as is requested by an authorized representative of the
Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co. has an interest herein.
THE MONEY STORE INC., a corporation duly organized and validly existing
under the laws of the State of New Jersey (herein called the "Company", which
term includes any successor corporation under the Indenture, as defined on the
reverse side hereof), for value received hereby promises to pay to
______________, or registered assigns, the principal sum of $______________
(_______________ DOLLARS) on April 15, 2002 in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest, semi-annually on April
15 and October 15 of each year, commencing October 15, 1997 on said principal
sum in like coin or currency, at the rate per annum specified in the title of
this Note, from April 15, 1997 or from the most recent Interest Payment Date for
which interest has been paid or duly provided for, until payment of said
principal sum has been made or duly provided for. The interest so payable on
each Interest Payment Date will be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date, which shall be
the April 1 or October 1 (whether or not a Business Day) next preceding such
Interest Payment Date, provided that any such interest not punctually paid or
duly provided for shall be payable as provided in the Indenture.
Payment of the principal of, and premium, if any, on, this Note will be
made in immediately available funds upon surrender of this Note at the Corporate
Trust Office of the Trustee. Interest will be paid by check mailed to the
address of the Person entitled thereto as it appears in the Security Register on
the applicable Regular Record Date or, at the option of the Company, by wire
transfer to an account maintained by such Person with a bank located in the
United States.
THIS NOTE SHALL BE DEEMED A CONTRACT UNDER THE LAWS OF THE STATE OF NEW
YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF SAID STATE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to herein by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
THE MONEY STORE INC.
By:_______________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein issued
under the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:______________________________
Authorized Officer
<PAGE>
[REVERSE SIDE OF NOTE]
THE MONEY STORE INC.
8.05% Senior Notes Due 2002
This Note is one of a duly authorized issue of Debt Securities of the
Company designated as its 8.05% Senior Notes due 2002 (herein called the
"Notes"), limited in aggregate principal amount to $175,000,000, issued and to
be issued under an Indenture dated as of April 15, 1997, as amended and
supplemented by the First Supplemental Indenture dated as of April 15, 1997
(herein called the "Indenture"), among the Company, the subsidiary guarantors
named therein (the "Subsidiary Guarantors") and The Chase Manhattan Bank, as
trustee (herein called the "Trustee," which term includes any successor Trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, duties,
obligations and immunities of the Company, the Trustee and the Holders of the
Notes, and the terms upon which the Notes are, and are to be, authenticated and
delivered.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register
relating to the Notes, upon surrender of this Note for registration of transfer
at the office or agency of the Company maintained for such purpose, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount with like terms and conditions, will be issued to the
designated transferee.
The Notes are issuable only as registered Notes without Coupons in the
denominations of $1,000, and integral multiples thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes with like terms and
conditions of different authorized denominations, as requested by the Holder
surrendering the same.
Except as otherwise provided in the Indenture, no service charge will 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 for registration of transfer or exchange of this
Note, the Company, the Subsidiary Guarantors, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not this Note be overdue, and
neither the Company, the Subsidiary Guarantors, the Trustee nor any such agent
shall be affected by notice to the contrary.
If an Event of Default shall occur with respect to the Notes, the principal
of all the Notes, plus accrued and unpaid interest (and premium, if any), may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Notes are not subject to any sinking fund and are not subject to any
redemption prior to maturity.
The Indenture contains provisions permitting the Company, the Subsidiary
Guarantors and the Trustee, with the written consent of the Holders of not less
than a majority in principal amount of the Outstanding Debt Securities of each
series affected by such supplemental indenture, voting separately, to enter into
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of
modifying in any manner the rights of the Holders under the Indenture of such
Debt Securities, or Coupons, if any; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security of each such series affected thereby, (i) change the
Stated Maturity of the principal of, or installment of interest, if any, on, any
Debt Security, or reduce the principal amount thereof, or the interest thereon
or any premium payable upon redemption thereof, or change the Stated Maturity of
or reduce the amount of any payment to be made regarding any Coupon, or change
the Currency or Currencies in which the principal of (and premium, if any) or
interest on such Debt Security is denominated or payable, or reduce the amount
of the principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity, or adversely affect the right of
repayment or repurchase, if any, at the option of the Holder, or reduce the
amount of, or postpone the date fixed for, any payment under any sinking fund,
or impair the right to institute suit for the enforcement of any payment on or
after the stated Maturity thereof, or (ii) reduce the percentage in principal
amount of Outstanding Debt Securities of any series, the Holders of which are
required to consent to any such supplemental indenture. The Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any series, on behalf of
the Holders of all the Debt Securities of any such series, to waive compliance
by the Company or the Subsidiary Guarantors with certain provisions of the
Indenture and certain past defaults or Event of Default under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor 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 interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the
interest (and premium, if any) on this Note, or any part thereof, or of the
indebtedness represented hereby, or upon any obligation, covenant or agreement
of the Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, officer or director, as such, past,
present or future, of the Company or any Subsidiary Guarantor of any predecessor
or successor corporation, either directly or indirectly through the Company or
any Subsidiary Guarantor, or any such predecessor or successor corporation
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly agreed
and understood that the Indenture or any indenture supplemental thereto and this
Note are solely corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any such incorporator, stockholder, officer
or director, past, present or future, of the Company or any Subsidiary Guarantor
or any predecessor or successor corporation, either directly or indirectly
through the Company or any such predecessor or successor corporation, because of
the indebtedness authorized under the Indenture or under or by reason of any of
the obligations, covenants, promises or agreements contained in the Indenture or
in this Note or to be implied therefrom or herefrom; and that any such personal
liability, by the acceptance hereof and as part of the consideration for the
issue hereof, is expressly waived and released.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related Defaults and Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to his
Note.
All terms used in this Note which are not defined in this Note shall have
the meanings assigned to them in the Indenture.
The following abbreviations, when used in the inscription on the face of
the within Note, shall be construed as though they were written out in full
according to applicable laws and regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entirety
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT
MIN ACT - --------------Custodian---------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------
(State)
Additional abbreviations may also be used though not in the above list.
<PAGE>
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------------------
| |
| |
| |
- -----------------------------------
- ------------------------------------------------------------------------
(Name and Address of Assignee, including zip code)
- ------------------------------------------------------------------------
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
- ------------------------------------------------------------- Attorney to
transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever and must be guaranteed.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
<PAGE>
GUARANTEE
FOR VALUE RECEIVED, each of the Subsidiary Guarantors named below (herein
called the "Subsidiary Guarantors," which term includes any successor
corporation under the Indenture referred to in the Note upon which this
Guarantee is endorsed) hereby fully and unconditionally guarantees, jointly with
each other Subsidiary Guarantor and severally with each other Subsidiary
Guarantor, to each Holder of the Note upon which this Guarantee is endorsed, the
due and punctual payment of the principal of (and premium, if any) and interest
on said Note provided for pursuant to the terms hereof, when and as the same
shall become due and payable, whether at Stated Maturity, upon redemption, upon
declaration of acceleration or otherwise, in accordance with the terms thereof
and of the Indenture. In case of the failure of The Money Store Inc. or any
successor thereto (herein called the "Company") punctually to make any such
payment, each of the Subsidiary Guarantors hereby, jointly with each other
Subsidiary Guarantor and severally with each other Subsidiary Guarantor, agrees
to cause any such payment to be made punctually when and as the same shall
become due and payable, and as if such payment were made by the Company.
Each of the Subsidiary Guarantors hereby, jointly with each other
Subsidiary Guarantor and severally with each other Subsidiary Guarantor, agrees
that its obligations hereunder shall be as if it were principal debtor and not
merely as surety, and shall be absolute and unconditional, irrespective of the
identity of the Company, the validity, regularity or enforceability of said Note
or the Indenture, any failure to enforce the provisions of said Note or the
Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of said Note, the recovery of any judgment against
the Company or any action to enforce the same, or any other circumstances which
may otherwise constitute a legal or equitable discharge of a surety or
guarantor. Each of the Subsidiary Guarantors hereby waives the benefits of
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect of said
Note or the Indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by complete
performance of all other obligations contained in said Note and in this
Guarantee.
This Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time payment of said Note, in whole or in part, is rescinded
or must otherwise be restored to the Company or the Subsidiary Guarantors upon
the bankruptcy, liquidation or reorganization of the Company or otherwise.
Each of the Subsidiary Guarantors shall be subrogated to all rights of the
Holder of said Note against the Company in respect of any amounts paid to such
Holder by such Subsidiary Guarantor pursuant to the provisions of the Guarantee
or the Indenture referred to in such Note; provided, however, that such
Subsidiary Guarantor shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the principal of
(and premium, if any) and interest on, all Notes of the series of which the Note
upon which this Guarantee is endorsed constitutes a part shall have been
indefeasibly paid in full.
The Indenture provides that in the event that this Guarantee would
constitute or result in a fraudulent transfer or conveyance for purposes of, or
result in a violation of, any United States federal, or applicable United States
state, fraudulent transfer or conveyance or similar law, then the liability of
each Subsidiary Guarantor hereunder shall be reduced to the extent necessary to
eliminate such fraudulent transfer or conveyance or violation under the
applicable fraudulent transfer or conveyance or similar law.
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any part of the Company's assets, and shall, to the fullest extent permitted by
law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Notes is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
Holder of the Notes, whether as a "voidable preference," "fraudulent transfer,"
or otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced, restored
or returned, the Notes shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
The Subsidiary Guarantors or any particular Subsidiary Guarantor shall be
released from this Guarantee upon the terms and subject to certain conditions
provided in the Indenture and any supplemental indentures thereto.
By delivery of a supplemental indenture to the Trustee in accordance with
the terms of the Indenture, each Person that becomes a Subsidiary Guarantor
after the date of the Indenture will be deemed to have executed and delivered
this Guarantee for the benefit of the Holder of the Notes upon which this
Guarantee is endorsed with the same effect as if such Subsidiary Guarantor was
named below and has executed and delivered this Guarantee.
All terms used in this Guarantee which are defined in the Indenture
referred to in the Note upon which this Guarantee is endorsed shall have the
meanings assigned to them in such Indenture.
Subject to the next following paragraph, each Subsidiary Guarantor hereby
certifies and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of
this Guarantee and to constitute the same valid obligation of the Subsidiary
Guarantor have been done and performed and have happened in due compliance with
all applicable laws.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Note upon which this Guarantee is endorsed
shall have been executed by the Trustee under the Indenture.
Reference is made to the Indenture for further provisions with respect to
this Guarantee.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF.
<PAGE>
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this Guarantee to
be executed on its behalf by its duly authorized officer as of the date of the
Trustee's authentication of the Note upon which this Guarantee is endorsed.
THE MONEY STORE/D.C. INC.
THE MONEY STORE/KENTUCKY INC.
THE MONEY STORE/MINNESOTA INC.
THE MONEY STORE AUTO FINANCE INC.
CLASSNOTES INC.
DYNA-MARK, INC.
EQUITY INSURANCE AGENCY, INC.
MAJOR BROKERAGE CO., INC.
PRINCETON ESCROW
THE MONEY STORE HOME EQUITY CORP.
THE MONEY STORE INVESTMENT CORPORATION
THE MONEY STORE OF NEW YORK INC.
THE COMMERCE GROUP
THE MONEY STORE COMMERCIAL MORTGAGE INC.
THE MONEY STORE SERVICE CORP.
TMS MORTGAGE INC.
THE MONEY STORE U.K. INC.
THE MONEY STORE REALTY INC.
TMS VENTURE HOLDINGS, INC.,
as Subsidiary Guarantors
By:_________________________________
Name:
Title:
Exhibit 4.3
SECOND SUPPLEMENTAL INDENTURE
(Senior Debt Securities)
SECOND SUPPLEMENTAL INDENTURE dated as of April 15, 1997 (this "Second
Supplemental Indenture"), to the Indenture, dated as of April 15, 1997 (the
"Indenture"), among THE MONEY STORE INC., a New Jersey corporation (hereinafter
called the "Company"), having its principal executive office at 2840 Morris
Avenue, Union, New Jersey 07083, THE CHASE MANHATTAN BANK, a New York banking
corporation (hereinafter called the "Trustee"), having its Corporate Trust
Office at 450 West 33rd Street, New York, New York 10001, and the subsidiaries
of the Company which are Subsidiary Guarantors under the Indenture (the
"Subsidiary Guarantors").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the execution and delivery of the
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, bonds or other evidences of indebtedness (hereinafter called
the "Debt Securities") to be issued in one or more series, as provided in the
Indenture; and
WHEREAS, each of the Subsidiary Guarantors has duly authorized the
execution and delivery of the Indenture to provide for the issuance from time to
time of its unsecured Subsidiary Guarantee (as defined in the Indenture) of the
Company's Debt Securities; and
WHEREAS, the Company desires and has requested the Trustee to join it in
the execution and delivery of this Second Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series of Debt
Securities designated as its 8.375% Senior Notes due 2004 in the aggregate
principal amount of $125,000,000, a specimen copy of which is attached hereto as
Exhibit A (the "Notes"), on the terms set forth herein, such Notes to be
guaranteed by the Subsidiary Guarantors, on the terms set forth herein; and
WHEREAS, Section 11.01 of the Indenture provides that a supplemental
indenture may be entered into by the Company, the Subsidiary Guarantors and the
Trustee without the consent of any holder of any Debt Securities to, inter alia,
establish the terms of any Debt Securities as permitted by Sections 2.01 and
3.01 of the Indenture, provided certain conditions are met; and
WHEREAS, the conditions set forth in the Indenture for the execution and
delivery of this Second Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Second Supplemental Indenture a
valid agreement of the Company, the Subsidiary Guarantors and the Trustee, in
accordance with its terms, and a valid amendment of, and supplement to, the
Indenture have been done.
NOW THEREFORE, there is hereby established a series (as that term is used
in Section 3.01 of the Indenture) of Debt Securities to be issued under the
Indenture, which series of Debt Securities shall have the terms set forth herein
and in the Notes, and in consideration of the premises and the purchase and
acceptance of the Notes by the holders thereof, the Company and the Subsidiary
Guarantors mutually covenant and agree with the Trustee, for the equal and
proportionate benefit of all holders of the Notes, that the Indenture is
supplemented and amended, to the extent and for the purposes expressed herein,
as follows:
ARTICLE ONE
SCOPE OF THIS SECOND
SUPPLEMENTAL INDENTURE
Section 1.1. CHANGES, ETC. APPLICABLE ONLY TO THE NOTES. The changes,
modifications and supplements to the Indenture effected by this Second
Supplemental Indenture in Sections 2.1 through 2.6 hereof shall be applicable
only with respect to, and govern the terms of, the Notes, which shall be limited
in aggregate principal amount to $125,000,000, except as provided in Section
3.01(2) of the Indenture, and shall not apply to any other Debt Securities which
may be issued under the Indenture unless a supplemental indenture with respect
to such other Debt Securities specifically incorporates such changes,
modifications and supplements.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
Section 2.1. AMENDMENT TO SECTION 1.01. Section 1.01 of the Indenture is
hereby amended by adding the following definition in its proper alphabetical
order:
"Notes" means $125,000,000 aggregate principal amount of the Company's
8.375% Senior Notes due 2004.
Section 2.2. AMENDMENT TO ARTICLE TEN. Article Ten of the Indenture is
hereby amended by deleting the words "Intentionally Omitted" and inserting
instead "Consolidation, Merger, Conveyance, Transfer or Lease" and adding the
following Sections 10.01 and 10.02:
"Section 10.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into
any other corporation or convey, transfer or lease all or substantially
all of its assets as an entirety to any Person, unless:
(1) the successor entity formed by such consolidation
or into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, all or substantially all of
the assets of the Company as an entirety (the "successor company")
shall be a corporation, partnership, limited liability company or
business trust organized and existing under the laws of the United
States or any State or the District or 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, if any) and interest on all
the Notes and the performance of every covenant of this Indenture 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
happened 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 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 10.01, assets of the
Company which did not account for at least 50% of the consolidated net
income of the Company for its most recent fiscal year ending prior to
the consummation of such transactions shall not in any event be deemed
to be all or substantially all of the assets of the Company.
Section 10.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other
Person, or any conveyance, transfer or lease of all or substantially
all of the assets of the Company as an entirety in accordance with
Section 10.01, the successor company 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 under this Indenture, as
supplemented, with the same effect as if such successor company had
been named as the Company herein, and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under
this Indenture, as supplemented, and the Notes."
Section 2.3. AMENDMENT TO SECTION 12.07. Section 12.07 of the Indenture is
hereby amended by deleting the words "Intentionally Omitted" and inserting
instead the following new Section 12.07:
"Section 12.07. LIMITATION UPON LIENS.
The Company will not at any time directly or
indirectly create or assume, otherwise than in favor of the Company or
a Wholly-Owned Subsidiary, any pledge or other lien or encumbrance upon
any stock of any Subsidiary directly owned by the Company, whether now
owned or hereafter acquired, without making effective provision (and
the Company covenants that in such case it will make or cause to be
made, effective provision) whereby the Notes shall be secured by such
pledge, lien or encumbrance equally and ratably with any and all other
obligations and indebtedness thereby secured, so long as any such other
obligations and indebtedness shall be so secured.
For purposes of this Section 12.07, "Subsidiary" shall mean a
Subsidiary which accounted for at least 25% of the consolidated net
income of the Company for its most recent fiscal year ending prior to
the creation or assumption of such pledge, lien or encumbrance."
Section 2.4 RANKING. The Notes will be senior unsecured obligations of the
Company, ranking in right of payment, on a pari passu basis, with all existing
and future unsecured and unsubordinated indebtedness and guarantees of the
Company and senior to all existing and future subordinated indebtedness of the
Company.
Section 2.5 TERMS OF THE NOTES. In accordance with Section 3.01 of the
Indenture, the Notes are subject to the terms set forth in this Second
Supplemental Indenture including without limitation Exhibit A hereto, the terms
of which are hereby incorporated in their entirety by reference. In addition to
the other terms of the Notes which are set forth elsewhere in this Second
Supplemental Indenture and Exhibit A hereto, the Notes are subject to all of the
provisions of the Indenture including, without limitation, the Company's legal
defeasance option and covenant defeasance option pursuant to Section 15.02 of
the Indenture. For purposes of Section 15.02 of the Indenture, the restrictive
covenants referred to therein shall include the covenants set forth in Article
Two of this Second Supplemental Indenture.
Section 2.6 SUBSIDIARY GUARANTEES. In accordance with Section 16.01 of the
Indenture, the Notes are subject to the terms set forth in the Guarantee of the
Subsidiary Guarantors included in the form of Note attached hereto as Exhibit A.
With respect to any Subsidiary Guarantor, such Guarantee shall rank equally in
right of payment, on a pari passu basis, will all existing and future unsecured
and unsubordinated indebtedness and guarantees of such Subsidiary Guarantor,
including the Subsidiary Guarantor's guarantee of the Senior Unsecured Notes (as
defined below). Such Guarantee shall terminate with respect to any Subsidiary
Guarantor upon such Subsidiary Guarantor's termination as a guarantor of the
Senior Unsecured Notes. The Company hereby agrees that if any other Subsidiary
shall in the future become a guarantor of the Senior Unsecured Notes, the
Company shall cause such Subsidiary to become an additional Subsidiary
Guarantor. "Senior Unsecured Notes" means (i) the Company's 7.63% Senior Notes
due April 15, 1998 issued pursuant to that certain Note Purchase Agreement dated
as of April 15, 1993 (as amended from time to time), (ii) the Company's 9.0%
Senior Notes due March 31, 2004 issued pursuant to that certain Note Purchase
Agreement dated as of April 6, 1995 (as amended from time to time), (iii) the
Company's 9.16% Senior Notes due September 9, 1997 issued pursuant to that
certain Note Purchase Agreement dated as of September 9, 1992 (as amended from
time to time), (iv) the Company's 7.73% Senior Notes due September 30, 2000
issued pursuant to that certain Note Purchase Agreement dated as of September
30, 1993 (as amended from time to time), (v) the Company's 7.94% Senior Notes
due September 30, 2000 issued pursuant to that certain Note Purchase Agreement
dated as of September 30, 1993 (as amended from time to time), and (vi) the
Company's 8.87% Senior Notes due September 30, 1999 issued pursuant to that
certain Note Purchase Agreement dated as of September 20, 1994 (as amended from
time to time), (vii) the Company's 8.94% Senior Notes due September 30, 2000
issued pursuant to that certain Note Purchase Agreement dated as of September
20, 1994 (as amended from time to time), (viii) the Company's 7.83% Senior Notes
due 1999 issued pursuant to that certain Note Purchase Agreement dated as of
September 13, 1995 (as amended from time to time), (ix) the Company's 7.88%
Senior Notes due 2004 issued pursuant to that certain Note Purchase Agreement
dated as of September 13, 1995 (as amended from time to time) and (x) the
Company's 8.03% Senior Notes due 2001 issued pursuant to that certain Note
Purchase Agreement dated as of September 13, 1995 (as amended from time to
time).
ARTICLE THREE
MISCELLANEOUS
Section 3.1. DEFINED TERMS. Unless otherwise provided in this Second
Supplemental Indenture, all defined terms used in this Second Supplemental
Indenture shall have the meanings assigned to them in the Indenture.
Section 3.2. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE
ACT OF 1939. If and to the extent that any provision of this Second Supplemental
Indenture limits, qualifies or conflicts with another provision included in this
Second Supplemental Indenture or in the Indenture which is required to be
included herein or therein by any of Sections 310 to 317, inclusive, of the
Trust Indenture Act of 1939, as amended, such required provision shall control.
SECTION 3.3. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE AND THE
NOTES SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE
STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW
RULES OF SAID STATE.
Section 3.4. COUNTERPARTS. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
Section 3.5. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 3.6. SEVERABILITY OF PROVISIONS. In case any provision in this
Second Supplemental Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 3.7. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Second Supplemental Indenture by the parties hereto shall bind their respective
successors and assigns and inure to the benefit of their respective successors
and assigns, whether so expressed or not.
Section 3.8. BENEFIT OF SUPPLEMENTAL INDENTURE. Nothing in this Second
Supplemental Indenture, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent and their
successors hereunder, and the Holders of the Notes, any benefit or any legal or
equitable right, remedy or claim under this Second Supplemental Indenture.
Section 3.9. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR SUFFICIENCY. The
recitals contained herein, except the Trustee's certificate of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the sufficiency of this Second Supplemental Indenture.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, all as of the day and year first above written.
THE MONEY STORE INC.
By:/s/ Morton Dear
Name: Morton Dear
Title: Executive Vice President
THE CHASE MANHATTAN BANK,
as Trustee
By:/s/ Kathleen Perry
Name: Kathleen Perry
Title: Second Vice President
THE MONEY STORE/D.C. INC.
THE MONEY STORE/KENTUCKY INC.
THE MONEY STORE/MINNESOTA INC.
THE MONEY STORE AUTO FINANCE INC.
CLASSNOTES INC.
DYNA-MARK, INC.
EQUITY INSURANCE AGENCY, INC.
MAJOR BROKERAGE CO., INC.
PRINCETON ESCROW
THE MONEY STORE HOME EQUITY CORP.
THE MONEY STORE INVESTMENT CORP.
THE MONEY STORE OF NEW YORK INC.
THE COMMERCE GROUP
THE MONEY STORE COMMERCIAL MORTGAGE INC.
THE MONEY STORE SERVICE CORP.
TMS MORTGAGE INC.
THE MONEY STORE U.K. INC.
THE MONEY STORE REALTY INC.
TMS VENTURE HOLDINGS, INC.,
as Subsidiary Guarantors
By:/s/ Morton Dear
Name: Morton Dear
Title: Executive Vice President of each
of the Subsidiary Guarantors,
other than The Money Store
Service Corp. of which he is
President
<PAGE>
EXHIBIT A
[FORM OF FACE OF SENIOR NOTE]
THE MONEY STORE INC.
8.375% Senior Notes Due 2004
Unconditionally guaranteed as to payment of principal of and interest by
the subsidiaries of The Money Store Inc. signatories hereto.
REGISTERED REGISTERED
No. R-_
CUSIP 60934T AP6 $------------
If this Note is registered in the name of The Depository Trust
Company (the "Depositary") (55 Water Street, New York, New
York) or its nominee, this Note may not be transferred except
as a whole by the Depositary to a nominee of the Depositary or
by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such
successor Depositary, unless and until this Note is exchanged
in whole or in part for Notes in definitive form. Unless this
certificate is presented by an authorized representative of
the Depositary to the Company or 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 Depositary
(and any payment is made to Cede & Co. or to such other entity
as is requested by an authorized representative of the
Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co. has an interest
herein.
THE MONEY STORE INC., a corporation duly organized and validly existing
under the laws of the State of New Jersey (herein called the "Company", which
term includes any successor corporation under the Indenture, as defined on the
reverse side hereof), for value received hereby promises to pay to
______________, or registered assigns, the principal sum of $______________
(_______________ DOLLARS) on April 15, 2004 in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest, semi-annually on April
15 and October 15 of each year, commencing October 15, 1997 on said principal
sum in like coin or currency, at the rate per annum specified in the title of
this Note, from April 15, 1997 or from the most recent Interest Payment Date for
which interest has been paid or duly provided for, until payment of said
principal sum has been made or duly provided for. The interest so payable on
each Interest Payment Date will be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date, which shall be
the April 1 or October 1 (whether or not a Business Day) next preceding such
Interest Payment Date, provided that any such interest not punctually paid or
duly provided for shall be payable as provided in the Indenture.
Payment of the principal of, and premium, if any, on, this Note will be
made in immediately available funds upon surrender of this Note at the Corporate
Trust Office of the Trustee. Interest will be paid by check mailed to the
address of the Person entitled thereto as it appears in the Security Register on
the applicable Regular Record Date or, at the option of the Company, by wire
transfer to an account maintained by such Person with a bank located in the
United States.
THIS NOTE SHALL BE DEEMED A CONTRACT UNDER THE LAWS OF THE STATE OF NEW
YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF SAID STATE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to herein by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
THE MONEY STORE INC.
By:__________________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein issued
under the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:______________________________
Authorized Officer
<PAGE>
[REVERSE SIDE OF NOTE]
THE MONEY STORE INC.
8.375% Senior Notes Due 2004
This Note is one of a duly authorized issue of Debt Securities of the
Company designated as its 8.375% Senior Notes due 2004 (herein called the
"Notes"), limited in aggregate principal amount to $125,000,000, issued and to
be issued under an Indenture dated as of April 15, 1997, as amended and
supplemented by the First Supplemental Indenture dated as of April 15, 1997, and
as amended and supplemented by the Second Supplemental Indenture dated as of
April 15, 1997 (herein called the "Indenture"), among the Company, the
subsidiary guarantors named therein (the "Subsidiary Guarantors") and The Chase
Manhattan Bank, as trustee (herein called the "Trustee," which term includes any
successor Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, duties, obligations and immunities of the Company, the Trustee and the
Holders of the Notes, and the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register
relating to the Notes, upon surrender of this Note for registration of transfer
at the office or agency of the Company maintained for such purpose, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount with like terms and conditions, will be issued to the
designated transferee.
The Notes are issuable only as registered Notes without Coupons in the
denominations of $1,000, and integral multiples thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes with like terms and
conditions of different authorized denominations, as requested by the Holder
surrendering the same.
Except as otherwise provided in the Indenture, no service charge will 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 for registration of transfer or exchange of this
Note, the Company, the Subsidiary Guarantors, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not this Note be overdue, and
neither the Company, the Subsidiary Guarantors, the Trustee nor any such agent
shall be affected by notice to the contrary.
If an Event of Default shall occur with respect to the Notes, the principal
of all the Notes, plus accrued and unpaid interest (and premium, if any), may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Notes are not subject to any sinking fund and are not subject to any
redemption prior to maturity.
The Indenture contains provisions permitting the Company, the Subsidiary
Guarantors and the Trustee, with the written consent of the Holders of not less
than a majority in principal amount of the Outstanding Debt Securities of each
series affected by such supplemental indenture, voting separately, to enter into
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of
modifying in any manner the rights of the Holders under the Indenture of such
Debt Securities, or Coupons, if any; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security of each such series affected thereby, (i) change the
Stated Maturity of the principal of, or installment of interest, if any, on, any
Debt Security, or reduce the principal amount thereof, or the interest thereon
or any premium payable upon redemption thereof, or change the Stated Maturity of
or reduce the amount of any payment to be made regarding any Coupon, or change
the Currency or Currencies in which the principal of (and premium, if any) or
interest on such Debt Security is denominated or payable, or reduce the amount
of the principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity, or adversely affect the right of
repayment or repurchase, if any, at the option of the Holder, or reduce the
amount of, or postpone the date fixed for, any payment under any sinking fund,
or impair the right to institute suit for the enforcement of any payment on or
after the stated Maturity thereof, or (ii) reduce the percentage in principal
amount of Outstanding Debt Securities of any series, the Holders of which are
required to consent to any such supplemental indenture. The Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any series, on behalf of
the Holders of all the Debt Securities of any such series, to waive compliance
by the Company or the Subsidiary Guarantors with certain provisions of the
Indenture and certain past defaults or Event of Default under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor 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 interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the
interest (and premium, if any) on this Note, or any part thereof, or of the
indebtedness represented hereby, or upon any obligation, covenant or agreement
of the Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, officer or director, as such, past,
present or future, of the Company or any Subsidiary Guarantor of any predecessor
or successor corporation, either directly or indirectly through the Company or
any Subsidiary Guarantor, or any such predecessor or successor corporation
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly agreed
and understood that the Indenture or any indenture supplemental thereto and this
Note are solely corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any such incorporator, stockholder, officer
or director, past, present or future, of the Company or any Subsidiary Guarantor
or any predecessor or successor corporation, either directly or indirectly
through the Company or any such predecessor or successor corporation, because of
the indebtedness authorized under the Indenture or under or by reason of any of
the obligations, covenants, promises or agreements contained in the Indenture or
in this Note or to be implied therefrom or herefrom; and that any such personal
liability, by the acceptance hereof and as part of the consideration for the
issue hereof, is expressly waived and released.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related Defaults and Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to his
Note.
All terms used in this Note which are not defined in this Note shall have
the meanings assigned to them in the Indenture.
The following abbreviations, when used in the inscription on
the face of the within Note, shall be construed as though they were written out
in full according to applicable laws and regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entirety
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT
MIN ACT - --------------------Custodian------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
<PAGE>
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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(Name and Address of Assignee, including zip code)
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the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
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to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever and must be guaranteed.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
<PAGE>
GUARANTEE
FOR VALUE RECEIVED, each of the Subsidiary Guarantors named below (herein
called the "Subsidiary Guarantors," which term includes any successor
corporation under the Indenture referred to in the Note upon which this
Guarantee is endorsed) hereby fully and unconditionally guarantees, jointly with
each other Subsidiary Guarantor and severally with each other Subsidiary
Guarantor, to each Holder of the Note upon which this Guarantee is endorsed, the
due and punctual payment of the principal of (and premium, if any) and interest
on said Note provided for pursuant to the terms hereof, when and as the same
shall become due and payable, whether at Stated Maturity, upon redemption, upon
declaration of acceleration or otherwise, in accordance with the terms thereof
and of the Indenture. In case of the failure of The Money Store Inc. or any
successor thereto (herein called the "Company") punctually to make any such
payment, each of the Subsidiary Guarantors hereby, jointly with each other
Subsidiary Guarantor and severally with each other Subsidiary Guarantor, agrees
to cause any such payment to be made punctually when and as the same shall
become due and payable, and as if such payment were made by the Company.
Each of the Subsidiary Guarantors hereby, jointly with each other
Subsidiary Guarantor and severally with each other Subsidiary Guarantor, agrees
that its obligations hereunder shall be as if it were principal debtor and not
merely as surety, and shall be absolute and unconditional, irrespective of the
identity of the Company, the validity, regularity or enforceability of said Note
or the Indenture, any failure to enforce the provisions of said Note or the
Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of said Note, the recovery of any judgment against
the Company or any action to enforce the same, or any other circumstances which
may otherwise constitute a legal or equitable discharge of a surety or
guarantor. Each of the Subsidiary Guarantors hereby waives the benefits of
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect of said
Note or the Indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by complete
performance of all other obligations contained in said Note and in this
Guarantee.
This Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time payment of said Note, in whole or in part, is rescinded
or must otherwise be restored to the Company or the Subsidiary Guarantors upon
the bankruptcy, liquidation or reorganization of the Company or otherwise.
Each of the Subsidiary Guarantors shall be subrogated to all rights of the
Holder of said Note against the Company in respect of any amounts paid to such
Holder by such Subsidiary Guarantor pursuant to the provisions of the Guarantee
or the Indenture referred to in such Note; provided, however, that such
Subsidiary Guarantor shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the principal of
(and premium, if any) and interest on, all Notes of the series of which the Note
upon which this Guarantee is endorsed constitutes a part shall have been
indefeasibly paid in full.
The Indenture provides that in the event that this Guarantee would
constitute or result in a fraudulent transfer or conveyance for purposes of, or
result in a violation of, any United States federal, or applicable United States
state, fraudulent transfer or conveyance or similar law, then the liability of
each Subsidiary Guarantor hereunder shall be reduced to the extent necessary to
eliminate such fraudulent transfer or conveyance or violation under the
applicable fraudulent transfer or conveyance or similar law.
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any part of the Company's assets, and shall, to the fullest extent permitted by
law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Notes is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
Holder of the Notes, whether as a "voidable preference," "fraudulent transfer,"
or otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced, restored
or returned, the Notes shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
The Subsidiary Guarantors or any particular Subsidiary Guarantor shall be
released from this Guarantee upon the terms and subject to certain conditions
provided in the Indenture and any supplemental indentures thereto.
By delivery of a supplemental indenture to the Trustee in accordance with
the terms of the Indenture, each Person that becomes a Subsidiary Guarantor
after the date of the Indenture will be deemed to have executed and delivered
this Guarantee for the benefit of the Holder of the Notes upon which this
Guarantee is endorsed with the same effect as if such Subsidiary Guarantor was
named below and has executed and delivered this Guarantee.
All terms used in this Guarantee which are defined in the Indenture
referred to in the Note upon which this Guarantee is endorsed shall have the
meanings assigned to them in such Indenture.
Subject to the next following paragraph, each Subsidiary Guarantor hereby
certifies and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of
this Guarantee and to constitute the same valid obligation of the Subsidiary
Guarantor have been done and performed and have happened in due compliance with
all applicable laws.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Note upon which this Guarantee is endorsed
shall have been executed by the Trustee under the Indenture.
Reference is made to the Indenture for further provisions with respect to
this Guarantee.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF.
<PAGE>
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this Guarantee to
be executed on its behalf by its duly authorized officer as of the date of the
Trustee's authentication of the Note upon which this Guarantee is endorsed.
THE MONEY STORE/D.C. INC.
THE MONEY STORE/KENTUCKY INC.
THE MONEY STORE/MINNESOTA INC.
THE MONEY STORE AUTO FINANCE INC.
CLASSNOTES INC.
DYNA-MARK, INC.
EQUITY INSURANCE AGENCY, INC.
MAJOR BROKERAGE CO., INC.
PRINCETON ESCROW
THE MONEY STORE HOME EQUITY CORP.
THE MONEY STORE INVESTMENT CORPORATION
THE MONEY STORE OF NEW YORK INC.
THE COMMERCE GROUP
THE MONEY STORE COMMERCIAL MORTGAGE INC.
THE MONEY STORE SERVICE CORP.
TMS MORTGAGE INC.
THE MONEY STORE U.K. INC.
THE MONEY STORE REALTY INC.
TMS VENTURE HOLDINGS, INC.,
as Subsidiary Guarantors
By:_________________________________
Name:
Title:
