US-DOCS\51569310.11
SPIRIT REALTY, L.P.
INDENTURE
Dated as of August 18, 2016
U.S. BANK NATIONAL ASSOCIATION
Trustee
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE ..................................1
Section 1.1. Definitions....................................................................................................1
Section 1.2. Other Definitions. ........................................................................................4
Section 1.3. Incorporation by Reference of Trust Indenture Act. ....................................5
Section 1.4. Rules of Construction. .................................................................................5
ARTICLE II. THE SECURITIES....................................................................................................6
Section 2.1. Issuable in Series..........................................................................................6
Section 2.2. Establishment of Terms of Series of Securities. ..........................................6
Section 2.3. Execution and Authentication. .....................................................................8
Section 2.4. Registrar and Paying Agent. ........................................................................9
Section 2.5. Paying Agent to Hold Money in Trust. ......................................................10
Section 2.6. Securityholder Lists. ..................................................................................10
Section 2.7. Transfer and Exchange. .............................................................................11
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities. .....................................11
Section 2.9. Outstanding Securities. ..............................................................................12
Section 2.10. Treasury Securities.....................................................................................12
Section 2.11. Temporary Securities. ................................................................................13
Section 2.12. Cancellation. ..............................................................................................13
Section 2.13. Defaulted Interest. ......................................................................................13
Section 2.14. Global Securities. .......................................................................................13
Section 2.15. CUSIP Numbers.........................................................................................15
ARTICLE III. REDEMPTION ......................................................................................................15
Section 3.1. Notice to Trustee. .......................................................................................15
Section 3.2. Selection of Securities to be Redeemed. ....................................................15
Section 3.3. Notice of Redemption. ...............................................................................16
Section 3.4. Effect of Notice of Redemption. ................................................................17
Section 3.5. Deposit of Redemption Price. ....................................................................17
Section 3.6. Securities Redeemed in Part. .....................................................................17
ARTICLE IV. COVENANTS .......................................................................................................17
Section 4.1. Payment of Principal and Interest. .............................................................17
Section 4.2. SEC Reports. ..............................................................................................17
Section 4.3. Compliance Certificate. .............................................................................18
Section 4.4. Stay, Extension and Usury Laws. ..............................................................18
ARTICLE V. SUCCESSORS ........................................................................................................18
Section 5.1. When Company May Merge, Etc. .............................................................18
Section 5.2. Successor Corporation Substituted. ...........................................................19
ARTICLE VI. DEFAULTS AND REMEDIES ............................................................................19
Section 6.1. Events of Default. ......................................................................................19
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Section 6.2. Acceleration of Maturity; Rescission and Annulment. ..............................20
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee. ...........21
Section 6.4. Trustee May File Proofs of Claim. ............................................................22
Section 6.5. Trustee May Enforce Claims Without Possession of Securities. ...............22
Section 6.6. Application of Money Collected. ...............................................................23
Section 6.7. Limitation on Suits. ....................................................................................23
Section 6.8. Unconditional Right of Holders to Receive Principal and Interest............24
Section 6.9. Restoration of Rights and Remedies. .........................................................24
Section 6.10. Rights and Remedies Cumulative. .............................................................24
Section 6.11. Delay or Omission Not Waiver..................................................................24
Section 6.12. Control by Holders. ....................................................................................25
Section 6.13. Waiver of Past Defaults. ............................................................................25
Section 6.14. Undertaking for Costs. ...............................................................................25
ARTICLE VII. TRUSTEE.............................................................................................................26
Section 7.1. Duties of Trustee. .......................................................................................26
Section 7.2. Rights of Trustee. .......................................................................................27
Section 7.3. Individual Rights of Trustee. .....................................................................28
Section 7.4. Trustee’s Disclaimer. .................................................................................28
Section 7.5. Notice of Defaults. .....................................................................................29
Section 7.6. Reports by Trustee to Holders. ..................................................................29
Section 7.7. Compensation and Indemnity. ...................................................................29
Section 7.8. Replacement of Trustee. ............................................................................30
Section 7.9. Successor Trustee by Merger, Etc. ............................................................31
Section 7.10. Eligibility; Disqualification. ......................................................................31
Section 7.11. Preferential Collection of Claims Against Company. ................................31
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE ...................................31
Section 8.1. Satisfaction and Discharge of Indenture. ...................................................31
Section 8.2. Application of Trust Funds; Indemnification. ...........................................32
Section 8.3. Legal Defeasance of Securities of any Series. ...........................................33
Section 8.4. Covenant Defeasance. ................................................................................34
Section 8.5. Repayment to Company. ............................................................................36
Section 8.6. Reinstatement. ............................................ Error! Bookmark not defined.
ARTICLE IX. AMENDMENTS AND WAIVERS ......................................................................36
Section 9.1. Without Consent of Holders. .....................................................................36
Section 9.2. With Consent of Holders. ..........................................................................37
Section 9.3. Limitations. ................................................................................................37
Section 9.4. Compliance with Trust Indenture Act. .......................................................38
Section 9.5. Revocation and Effect of Consents. ...........................................................38
Section 9.6. Notation on or Exchange of Securities. .....................................................38
Section 9.7. Trustee Protected. ......................................................................................39
ARTICLE X. MISCELLANEOUS ...............................................................................................39
Section 10.1. Trust Indenture Act Controls. ....................................................................39
Section 10.2. Notices. ......................................................................................................39
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Section 10.3. Communication by Holders with Other Holders. ......................................40
Section 10.4. Certificate and Opinion as to Conditions Precedent. .................................40
Section 10.5. Statements Required in Certificate or Opinion. .........................................41
Section 10.6. Rules by Trustee and Agents. ....................................................................41
Section 10.7. Legal Holidays. ..........................................................................................41
Section 10.8. No Recourse Against Others. .....................................................................41
Section 10.9. Counterparts. ..............................................................................................42
Section 10.10. Governing Law. .........................................................................................42
Section 10.11. No Adverse Interpretation of Other Agreements. ......................................42
Section 10.12. Successors. .................................................................................................42
Section 10.13. Severability. ...............................................................................................42
Section 10.14. Table of Contents, Headings, Etc. .............................................................42
Section 10.15. Securities in a Foreign Currency. ...............................................................42
Section 10.16. Judgment Currency. ...................................................................................43
Section 10.17. Force Majeure. ...........................................................................................44
Section 10.18. U.S.A. Patriot Act. .....................................................................................44
Section 10.19. Consent to Jurisdiction; Jury Waiver. ........................................................44
ARTICLE XI. SINKING FUNDS .................................................................................................44
Section 11.1. Applicability of Article. .............................................................................44
Section 11.2. Satisfaction of Sinking Fund Payments with Securities. ...........................45
Section 11.3. Redemption of Securities for Sinking Fund...............................................45
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SPIRIT REALTY, L.P.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of August 18, 2016
§ 310(a)(1) ................................................................................................ 7.10
(a)(2) ................................................................................................ 7.10
(a)(3) ................................................................................................ Not Applicable
(a)(4) ................................................................................................ Not Applicable
(a)(5) ................................................................................................ 7.10
(b) ................................................................................................ 7.10
§ 311(a) ................................................................................................ 7.11
(b) ................................................................................................ 7.11
(c) ................................................................................................ Not Applicable
§ 312(a) ................................................................................................ 2.6
(b) ................................................................................................ 10.3
(c) ................................................................................................ 10.3
§ 313(a) ................................................................................................ 7.6
(b)(1) ................................................................................................ 7.6
(b)(2) ................................................................................................ 7.6
(c)(1) ................................................................................................ 7.6
(d) ................................................................................................ 7.6
§ 314(a) ................................................................................................ 4.2, 10.5
(b) ................................................................................................ Not Applicable
(c)(1) ................................................................................................ 10.4
(c)(2) ................................................................................................ 10.4
(c)(3) ................................................................................................ Not Applicable
(d) ................................................................................................ Not Applicable
(e) ................................................................................................ 10.5
(f) ................................................................................................ Not Applicable
§ 315(a) ................................................................................................ 7.1
(b) ................................................................................................ 7.5
(c) ................................................................................................ 7.1
(d) ................................................................................................ 7.1
(e) ................................................................................................ 6.14
§ 316(a) ................................................................................................ 2.10
(a)(1)(A) ................................................................................................ 6.12
(a)(1)(B) ................................................................................................ 6.13
(b) ................................................................................................ 6.8
§ 317(a)(1) ................................................................................................ 6.3
(a)(2) ................................................................................................ 6.4
(b) ................................................................................................ 2.5
§ 318(a) ................................................................................................ 10.1
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture.
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Indenture dated as of August 18, 2016 between Spirit Realty, L.P., a Delaware
Limited Partnership (“Company”), and U.S. Bank National Association (the “Trustee”).
Each party agrees as follows for the benefit of the other party and for the equal
and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
“Additional Amounts” means any additional amounts which are required hereby
or by any Security, under circumstances specified herein or therein, to be paid by the Company
in respect of certain taxes imposed on Holders specified herein or therein and which are owing to
such Holders.
“Affiliate” of any specified person means any other person directly or indirectly
controlling or controlled by or under common control with such specified person. For the
purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such person, whether through the ownership of voting securities or by agreement or
otherwise.
“Agent” means any Registrar, Paying Agent or Notice Agent.
“Board of Directors” means the board of managers of the General Partner or any
duly authorized committee thereof.
“Board Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the General Partner to have been adopted by the Board of Directors or
pursuant to authorization by the Board of Directors and to be in full force and effect on the date
of the certificate and delivered to the Trustee.
“Business Day” means, unless otherwise provided by Board Resolution, Officer’s
Certificate or supplemental indenture hereto for a particular Series, any day except a Saturday,
Sunday or a legal holiday in The City of New York (or in connection with any payment, the
place of payment) on which banking institutions are authorized or required by law, regulation or
executive order to close.
“Capital Stock” means (a) in the case of a corporation, corporate stock; (b) in the
case of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated and whether or not voting) of corporate stock, including
each class of common stock and preferred stock of such person; and (c) in the case of a
partnership or limited liability company, partnership or membership interests (whether general or
limited).
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“Company” means the party named as such above until a successor replaces it
and thereafter means the successor.
“Company Order” means a written order signed in the name of the Company by
an Officer.
“Corporate Trust Office” means the office of the Trustee at which at any
particular time its corporate trust business related to this Indenture shall be principally
administered.
“Default” means any event which is, or after notice or passage of time or both
would be, an Event of Default.
“Depositary” means, with respect to the Securities of any Series issuable or issued
in whole or in part in the form of one or more Global Securities, the person designated as
Depositary for such Series by the Company, which Depositary shall be a clearing agency
registered under the Exchange Act; and if at any time there is more than one such person,
“Depositary” as used with respect to the Securities of any Series shall mean the Depositary with
respect to the Securities of such Series.
“Discount Security” means any Security that provides for an amount less than the
stated principal amount thereof to be due and payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.2.
“Dollars” and “$” means the currency of The United States of America.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Foreign Currency” means any currency or currency unit issued by a government
other than the government of The United States of America.
“Foreign Government Obligations” means, with respect to Securities of any
Series that are denominated in a Foreign Currency, direct obligations of, or obligations
guaranteed by, the government that issued or caused to be issued such currency for the payment
of which obligations its full faith and credit is pledged and which are not callable or redeemable
at the option of the issuer thereof.
“GAAP” means accounting principles generally accepted in the United States of
America set forth in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other entity as have
been approved by a significant segment of the accounting profession, which are in effect as of
the date of determination.
“General Partner” means Spirit General OP Holdings, LLC, a Delaware limited
liability company and the sole general partner of the Company.
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“Global Security” or “Global Securities” means a Security or Securities, as the
case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of
Securities, issued to the Depositary for such Series or its nominee, and registered in the name of
such Depositary or nominee.
“Holder” or “Securityholder” means a person in whose name a Security is
registered.
“Indenture” means this Indenture as amended or supplemented from time to time
and shall include the form and terms of particular Series of Securities established as
contemplated hereunder.
“interest” with respect to any Discount Security which by its terms bears interest
only after Maturity, means interest payable after Maturity.
“Maturity,” when used with respect to any Security, means the date on which the
principal of such Security becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer” means the Chief Executive Officer, President, the Chief Financial
Officer, the Chief Operating Officer, the Treasurer or any Assistant Treasurer, the Secretary or
any Assistant Secretary, and any Vice President of the General Partner.
“Officer’s Certificate” means a certificate signed by any Officer.
“Opinion of Counsel” means a written opinion of legal counsel who is acceptable
to the Trustee. The counsel may be an employee of or counsel to the Company.
“person” means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“principal” of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security.
“Responsible Officer” means any officer of the Trustee in its Corporate Trust
Office having responsibility for administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a particular subject.
“SEC” means the Securities and Exchange Commission.
“Securities” means the debentures, notes or other debt instruments of the
Company of any Series authenticated and delivered under this Indenture.
“Series” or “Series of Securities” means each series of debentures, notes or other
debt instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.
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“Stated Maturity” when used with respect to any Security, means the date
specified in such Security as the fixed date on which the principal of such Security or interest is
due and payable.
“Subsidiary” of any specified person means any corporation, association or other
business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such
person or one or more of the other Subsidiaries of that person or a combination thereof.
“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as
in effect on the date of this Indenture; provided, however, that in the event the Trust Indenture
Act of 1939 is amended after such date, “TIA” means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.
“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 Securities of any Series shall mean the Trustee with respect to Securities
of that Series.
“U.S. Government Obligations” means securities which are direct obligations of,
or guaranteed by, The United States of America for the payment of which its full faith and credit
is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall
also include a depositary 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 depositary receipt from any
amount received by the custodian in respect of the U.S. Government Obligation evidenced by
such depositary receipt.
Section 1.2. Other Definitions.
TERM DEFINED IN
SECTION
“Bankruptcy Law” 6.1
“Custodian” 6.1
“Event of Default” 6.1
“Judgment Currency” 10.16
“Legal Holiday” 10.7
“mandatory sinking fund payment” 11.1
“New York Banking Day” 10.16
“Notice Agent” 2.4
“optional sinking fund payment” 11.1
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“Paying Agent” 2.4
“Registrar” 2.4
“Required Currency” 10.16
“successor person” 5.1
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following TIA terms used in
this Indenture have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities.
“indenture security holder” means a Securityholder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company and any
successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA and not otherwise defined
herein are used herein as so defined.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the
singular; and
(e) provisions apply to successive events and transactions.
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ARTICLE II.
THE SECURITIES
Section 2.1. Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in one or more Series.
All Securities of a Series shall be identical except as may be set forth or determined in the
manner provided in a Board Resolution, a supplemental indenture or an Officer’s Certificate
detailing the adoption of the terms thereof pursuant to authority granted under a Board
Resolution. In the case of Securities of a Series to be issued from time to time, the Board
Resolution, Officer’s Certificate or supplemental indenture detailing the adoption of the terms
thereof pursuant to authority granted under a Board Resolution may provide for the method by
which specified terms (such as interest rate, maturity date, record date or date from which
interest shall accrue) are to be determined. Securities may differ between Series in respect of
any matters, provided that all Series of Securities shall be equally and ratably entitled to the
benefits of the Indenture.
Section 2.2. Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series, the following shall be
established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such
Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through
2.2.23) by or pursuant to a Board Resolution, and set forth or determined in the manner provided
in a Board Resolution, supplemental indenture hereto or Officer’s Certificate:
2.2.1. the title (which shall distinguish the Securities of that particular Series
from the Securities of any other Series);
2.2.2. the price or prices (expressed as a percentage of the principal amount
thereof) at which the Securities of the Series will be issued;
2.2.3. any limit upon the aggregate principal amount of the Securities of the
Series which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal of the Securities of the Series
is payable;
2.2.5. the rate or rates (which may be fixed or variable) per annum or, if
applicable, the method used to determine such rate or rates (including, but not limited to, any
commodity, commodity index, stock exchange index or financial index) at which the Securities
of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall
accrue, the date or dates on which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any interest payment date;
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2.2.6. the place or places where the principal of, and premium, if any, and
interest, if any, on the Securities of the Series shall be payable, where the Securities of such
Series may be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of such Series and this Indenture
may be delivered, and the method of such payment, if by wire transfer, mail or other means;
2.2.7. if applicable, the period or periods within which, the price or prices at
which and the terms and conditions upon which the Securities of the Series may be redeemed, in
whole or in part, at the option of the Company;
2.2.8. the obligation, if any, of the Company to redeem or purchase the
Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or prices at which, the currency
or currencies in which, and the other terms and conditions upon which Securities of the Series
shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.9. the dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the option of the Holders thereof
and other detailed terms and provisions of such repurchase obligations;
2.2.10. if other than denominations of $1,000 and any integral multiple
thereof, the minimum denominations in which the Securities of the Series shall be issuable;
2.2.11. the forms of the Securities of the Series and whether the Securities will
be issuable as Global Securities;
2.2.12. if other than the principal amount thereof, the portion of the principal
amount of the Securities of the Series that shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.2;
2.2.13. the currency of denomination of the Securities of the Series, which
may be Dollars or any Foreign Currency, and if such currency of denomination is a composite
currency, the agency or organization, if any, responsible for overseeing such composite currency;
2.2.14. the designation of the currency, currencies or currency units in which
payment of the principal of and interest, if any, on the Securities of the Series will be made;
2.2.15. if payments of principal of or interest, if any, on the Securities of the
Series are to be made in one or more currencies or currency units other than that or those in
which such Securities are denominated, the manner in which the exchange rate with respect to
such payments will be determined;
2.2.16. the manner in which the amounts of payment of principal of or
interest, if any, on the Securities of the Series will be determined, if such amounts may be
determined by reference to an index based on a currency or currencies or by reference to a
commodity, commodity index, stock exchange index or financial index;
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2.2.17. the provisions, if any, relating to any security provided for the
Securities of the Series;
2.2.18. any addition to, deletion of or change in the Events of Default which
applies to any Securities of the Series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and payable pursuant to
Section 6.2;
2.2.19. any addition to, deletion of or change in the covenants set forth in
Articles IV or V which applies to Securities of the Series;
2.2.20. any Depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to Securities of such Series if other than those
appointed herein;
2.2.21. the provisions, if any, relating to conversion or exchange of any
Securities of such Series, including if applicable, the conversion or exchange price, the
conversion or exchange period, the securities or other property into which the Securities will be
convertible, provisions as to whether conversion or exchange will be mandatory, at the option of
the Holders thereof or at the option of the Company, the events requiring an adjustment of the
conversion price or exchange price and provisions affecting conversion or exchange if such
Series of Securities are redeemed;
2.2.22. whether the Securities of such Series will be senior debt securities or
subordinated debt securities and, if applicable, the subordination terms thereof;
2.2.23. whether the Securities of such Series are entitled to the benefits of
guarantees, the terms of such guarantees, and whether any such guarantees shall be made on a
senior or subordinated basis and, if applicable, the subordination terms of any such guarantees;
and
2.2.24. any other terms of the Series (which may supplement, modify or delete
any provision of this Indenture insofar as it applies to such Series), including any terms that may
be required under applicable law or regulations or advisable in connection with the marketing of
Securities of that Series.
All Securities of any one Series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred
to above.
Section 2.3. Execution and Authentication.
An Officer shall sign the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security no longer holds that office at the
time the Security is authenticated, the Security shall nevertheless be valid.
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A Security shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for
original issue in the principal amount provided in the Board Resolution, supplemental indenture
hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order, Officer’s
Certificate and Opinion of Counsel. Such Company Order may authorize authentication and
delivery pursuant to electronic instructions from the Company or its duly authorized agent or
agents. Each Security shall be dated the date of its authentication.
The aggregate principal amount of Securities of any Series outstanding at any
time may not exceed any limit upon the maximum principal amount for such Series set forth in
the Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant
to Section 2.2, except as provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall have received
and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of
that Series or of Securities within that Series and the terms of the Securities of that Series or of
Securities within that Series, (b) an Officer’s Certificate complying with Section 10.4, and (c) an
Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver any
Securities of such Series: (a) if the Trustee determines that such action may not be taken
lawfully; or (b) if the Trustee in good faith shall determine that such action would expose the
Trustee to personal liability.
The Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as the Trustee to deal
with the Company or an Affiliate of the Company.
Section 2.4. Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of Securities, at the
place or places specified with respect to such Series pursuant to Section 2.2, an office or agency
where Securities of such Series may be presented or surrendered for payment (“Paying Agent”),
where Securities of such Series may be surrendered for registration of transfer or exchange
(“Registrar”) and where notices and demands to or upon the Company in respect of the
Securities of such Series and this Indenture may be delivered (“Notice Agent”). The Registrar
shall keep a register with respect to each Series of Securities and to their transfer and exchange.
The Company will give prompt written notice to the Trustee of the name and address, and any
change in the name or address, of each Registrar, Paying Agent or Notice Agent. If at any time
the Company shall fail to maintain any such required Registrar, Paying Agent or Notice Agent or
shall fail to furnish the Trustee with the name and address thereof, such presentations,
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surrenders, notices and demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands; provided, however, that any appointment of the Trustee as the Notice
Agent shall exclude the appointment of the Trustee or any office of the Trustee as an agent to
receive the service of legal process on the Company.
The Company may also from time to time designate one or more co-registrars,
additional paying agents or additional notice agents and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain a Registrar, Paying Agent and Notice Agent in
each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the name or address of any such co-registrar, additional paying
agent or additional notice agent. The term “Registrar” includes any co-registrar; the term
“Paying Agent” includes any additional paying agent; and the term “Notice Agent” includes any
additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying
Agent.
The Company hereby appoints the Trustee the initial Registrar, Paying Agent and
Notice Agent for each Series unless another Registrar, Paying Agent or Notice Agent, as the case
may be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series
of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of
or interest on the Series of Securities, and will notify the Trustee in writing of any default by the
Company in making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall
have no further liability for the money. If the Company or a Subsidiary of the Company acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of
Securityholders of any Series of Securities all money held by it as Paying Agent. Upon any
bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall
serve as Paying Agent for the Securities.
Section 2.6. Securityholder Lists.
The Registrar shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Securityholders of each Series of
Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee and Registrar at least ten days before each interest payment
date and at such other times as the Trustee may request in writing a list, in such form and as of
such date as the Trustee may reasonably require, of the names and addresses of Securityholders
of each Series of Securities.
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Section 2.7. Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or a co-registrar with a
request to register a transfer or to exchange them for an equal principal amount of Securities of
the same Series, the Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfers and exchanges, the Trustee
shall authenticate Securities at the Registrar’s request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment by the applicable Securityholders of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection therewith (other than any
such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections
2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required (a) to issue, register the
transfer of, or exchange Securities of any Series for the period beginning at the opening of
business fifteen days immediately preceding the sending of a notice of redemption of Securities
of that Series selected for redemption and ending at the close of business on the day such notice
is sent, or (b) to register the transfer of or exchange Securities of any Series selected, called or
being called for redemption as a whole or the portion being redeemed of any such Securities
selected, called or being called for redemption in part.
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same
Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
bond as may be required by each of them to hold itself and any of its agents harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon receipt of a Company Order the
Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same Series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional contractual obligation of
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the Company, whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.9. Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in
the interest on a Global Security effected by the Trustee in accordance with the provisions hereof
and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until
the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Company, a Subsidiary of the Company or an
Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay
all amounts payable in respect of such Securities on that date, then on and after that date such
Securities of the Series cease to be outstanding and interest on them ceases to accrue.
The Company may purchase or otherwise acquire the Securities, whether by open
market purchases, negotiated transactions or otherwise. A Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Security (but see
Section 2.10 below).
In determining whether the Holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.2.
Section 2.10. Treasury Securities.
In determining whether the Holders of the required principal amount of Securities
of a Series have concurred in any request, demand, authorization, direction, notice, consent or
waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be
disregarded, except that for the purposes of determining whether the Trustee shall be protected in
relying on any such request, demand, authorization, direction, notice, consent or waiver only
Securities of a Series that a Responsible Officer actually knows are so owned shall be so
disregarded.
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Section 2.11. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities upon a Company Order. Temporary
Securities shall be substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee upon receipt of a Company Order shall authenticate
definitive Securities of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary securities shall have the same rights under this
Indenture as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to
them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities
surrendered for transfer, exchange, payment, replacement or cancellation and shall destroy such
canceled Securities (subject to the record retention requirement of the Exchange Act and the
Trustee) and deliver a certificate of such cancellation to the Company upon written request of the
Company. The Company may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on a Series of Securities, it shall
pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the
defaulted interest, to the persons who are Securityholders of the Series on a subsequent special
record date. The Company shall fix the record date and payment date. At least 10 days before
the special record date, the Company shall send to the Trustee and to each Securityholder of the
Series a notice that states the special record date, the payment date and the amount of interest to
be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14. Global Securities.
2.14.1. Terms of Securities. A Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate shall establish whether the Securities of a Series shall be issued
in whole or in part in the form of one or more Global Securities and the Depositary for such
Global Security or Securities.
2.14.2. Transfer and Exchange. Notwithstanding any provisions to the
contrary contained in Section 2.7 of the Indenture and in addition thereto, any Global Security
shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the
names of Holders other than the Depositary for such Security or its nominee only if (i) such
Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time such Depositary ceases to be a clearing agency registered under
the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary
registered as a clearing agency under the Exchange Act within 90 days of such event or (ii) the
Company executes and delivers to the Trustee an Officer’s Certificate to the effect that such
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Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to
the preceding sentence shall be exchangeable for Securities registered in such names as the
Depositary shall direct in writing in an aggregate principal amount equal to the principal amount
of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security may not be
transferred except as a whole by the Depositary with respect to such Global Security to a
nominee of such Depositary, by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such a successor Depositary.
2.14.3. Legends. Any Global Security issued hereunder shall bear a legend in
substantially the following form:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY, 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 A SUCCESSOR
DEPOSITARY.”
In addition, so long as the Depository Trust Company (“DTC”) is the Depositary,
each Global Note registered in the name of DTC or its nominee shall bear a legend in
substantially the following form:
“UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.”
2.14.4. Acts of Holders. The Depositary, as a Holder, may appoint agents and
otherwise authorize participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under the
Indenture.
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2.14.5. Payments. Notwithstanding the other provisions of this Indenture,
unless otherwise specified as contemplated by Section 2.2, payment of the principal of and
interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6. Consents, Declaration and Directions. The Company, the Trustee and
any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of
such Series represented by a Global Security as shall be specified in a written statement of the
Depositary or by the applicable procedures of such Depositary with respect to such Global
Security, for purposes of obtaining any consents, declarations, waivers or directions required to
be given by the Holders pursuant to this Indenture and the Trustee shall have no liability or
responsibility for any action or inaction of the Depositary or any depositary or clearinghouse.
Section 2.15. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other elements of
identification printed on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice to Trustee.
The Company may, with respect to any Series of Securities, reserve the right to
redeem and pay the Series of Securities or may covenant to redeem and pay the Series of
Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms
as provided for in such Securities. If a Series of Securities is redeemable and the Company
wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of
Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing of the
redemption date and the principal amount of Series of Securities (identified by CUSIP) to be
redeemed. The Company shall give the notice at least 15 days before the redemption date, unless
a shorter period is satisfactory to the Trustee.
Section 3.2. Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board Resolution, a
supplemental indenture hereto or an Officer’s Certificate, if less than all the Securities of a Series
are to be redeemed, the Securities of the Series to be redeemed will be selected as follows: (a) if
the Securities are in the form of Global Securities, in accordance with the procedures of the
Depositary, (b) if the Securities are listed on any national securities exchange, in compliance
with the requirements of the principal national securities exchange, if any, on which the
Securities are listed, or (c) if not otherwise provided for under clause (a) or (b) in the manner that
the Trustee deems fair and appropriate, including by lot or other method, unless otherwise
required by law or applicable stock exchange requirements, subject, in the case of Global
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Securities, to the applicable rules and procedures of the Depositary. The Securities to be
redeemed shall be selected from Securities of the Series outstanding not previously called for
redemption. Portions of the principal of Securities of the Series that have denominations larger
than $1,000 may be selected for redemption. Securities of the Series and portions of them it
selected for redemption shall be in amounts of $1,000 or whole multiples of $1,000 or, with
respect to Securities of any Series issuable in other denominations pursuant to Section 2.2.10, the
minimum principal denomination for each Series and the authorized integral multiples thereof.
Provisions of this Indenture that apply to Securities of a Series called for redemption also apply
to portions of Securities of that Series called for redemption.
Section 3.3. Notice of Redemption.
Unless otherwise indicated for a particular Series by Board Resolution, a
supplemental indenture hereto or an Officer’s Certificate, at least 30 days but not more than 60
days before a redemption date, the Company shall send or cause to be sent by first-class mail or
electronically, in accordance with the procedures of the Depositary, a notice of redemption to
each Holder whose Securities are to be redeemed.
The notice shall identify the Securities of the Series to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) if any Securities are being redeemed in part, the portion of the principal
amount of such Securities to be redeemed and that, after the redemption date and upon
surrender of such Security, a new Security or Securities in principal amount equal to the
unredeemed portion of the original Security shall be issued in the name of the Holder
thereof upon cancellation of the original Security;
(e) that Securities of the Series called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that interest on Securities of the Series called for redemption ceases to
accrue on and after the redemption date unless the Company defaults in the deposit of the
redemption price;
(g) the CUSIP number, if any; and
(h) any other information as may be required by the terms of the particular
Series or the Securities of a Series being redeemed.
At the Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense.
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Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is sent as provided in Section 3.3, Securities of a
Series called for redemption become due and payable on the redemption date and at the
redemption price. Except as otherwise provided in the supplemental indenture, Board Resolution
or Officer’s Certificate for a Series, a notice of redemption may not be conditional. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued
interest to the redemption date.
Section 3.5. Deposit of Redemption Price.
On or before 11:00 a.m., New York City time, on the redemption date, the
Company shall deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security of the same Series and the same maturity equal in
principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the Holders of each Series
of Securities that it will duly and punctually pay the principal of and interest, if any, on the
Securities of that Series in accordance with the terms of such Securities and this Indenture. On
or before 11:00 a.m., New York City time, on the applicable payment date, the Company shall
deposit with the Paying Agent money sufficient to pay the principal of and interest, if any, on the
Securities of each Series in accordance with the terms of such Securities and this Indenture.
Section 4.2. SEC Reports.
To the extent any Securities of a Series are outstanding, the Company shall
deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports
and of the information, documents, and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall
comply with the other provisions of TIA § 314(a). Reports, information and documents filed
with the SEC via the EDGAR system will be deemed to be delivered to the Trustee as of the time
of such filing via EDGAR for purposes of this Section 4.2.
Delivery of reports, information and documents to the Trustee under this Section
4.2 are for informational purposes only and the Trustee’s receipt of the foregoing shall not
constitute constructive or actual notice of any information contained therein or determinable
from information contained therein, including the Company’s compliance with any of their
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covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s
Certificates). The Trustee shall nave no liability or responsibility for the filing, timeliness or
content of any such report.
Section 4.3. Compliance Certificate.
To the extent any Securities of a Series are outstanding, the Company shall
deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an
Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the signing Officers with
a view to determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his/her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof (or, if a Default
or Event of Default shall have occurred, describing all such Defaults or Events of Default of
which the Officer may have knowledge and the steps to be taken to cure such Defaults or Events
of Default).
Section 4.4. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture or the Securities; and
the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not, by resort to any such law, 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 has been enacted.
ARTICLE V.
SUCCESSORS
Section 5.1. When Company May Merge, Etc.
The Company shall not consolidate with or merge with or into, or convey, transfer
or lease all or substantially all of its properties and assets to, any person (a “successor person”)
unless:
(a) the Company is the surviving corporation or the successor person (if other
than the Company) is a corporation organized and validly existing under the laws of any
U.S. domestic jurisdiction and expressly assumes the Company’s obligations on the
Securities and under this Indenture; and
(b) immediately after giving effect to the transaction, no Default or Event of
Default, shall have occurred and be continuing.
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The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any Subsidiary of the Company may consolidate with,
merge into or transfer all or part of its properties to the Company. Neither an Officer’s
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith if
the Company is the surviving entity.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in accordance with Section 5.1,
the successor corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, lease, conveyance or other disposition is made shall succeed to,
and be substituted for, by execution of a supplemental indenture, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such successor person
has been named as the Company herein; provided, however, that the predecessor Company in the
case of a sale, conveyance or other disposition (other than a lease) shall be released from all
obligations and covenants under this Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
“Event of Default,” wherever used herein with respect to Securities of any Series,
means any one of the following events, unless in the establishing Board Resolution,
supplemental indenture or Officer’s Certificate, it is provided that such Series shall not have the
benefit of said Event of Default:
(a) default in the payment of any interest on any Security of that Series when
it becomes due and payable, and continuance of such default for a period of 30 days
(unless the entire amount of such payment is deposited by the Company with the Trustee
or with a Paying Agent prior to 11:00 a.m., New York City time, on the 30th day of such
period); or
(b) default in the payment of principal of any Security of that Series at its
Maturity; or
(c) default in the performance or breach of any covenant or warranty of the
Company in this Indenture (other than defaults pursuant to paragraphs (a) or (b) above or
pursuant to a covenant or warranty that has been included in this Indenture solely for the
benefit of Series of Securities other than that Series), which default continues uncured 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 Securities of that Series a written notice
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specifying such default or breach and requiring it to be remedied and stating that such
notice is a “Notice of Default” hereunder; or
(d) the Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is unable to pay its debts as the same become due; or
(e) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case,
(ii) appoints a Custodian of the Company or for all or substantially all
of its property, or
(iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days; or
(f) any other Event of Default provided with respect to Securities of that
Series, which is specified in a Board Resolution, a supplemental indenture hereto or an
Officer’s Certificate, in accordance with Section 2.2.18.
The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
The Company will provide the Trustee written of notice of any Default or Event
of Default within 30 days of becoming aware of the occurrence of such Default or Event of
Default, which notice will describe in reasonable detail the status of such Default or Event of
Default and what action the Company is taking or proposes to take in respect thereof.
Section 6.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any Series at the time
outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(d)
or (e)) then in every such case the Trustee or the Holders of not less than 25% in principal
amount of the outstanding Securities of that Series may declare the principal amount (or, if any
Securities of that Series are Discount Securities, such portion of the principal amount as may be
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specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the
Securities of that Series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately
due and payable. If an Event of Default specified in Section 6.1(d) or (e) shall occur, the
principal amount (or specified amount) of and accrued and unpaid interest, if any, on all
outstanding Securities shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to 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 Securities of that Series, by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences if all Events of Default with respect
to Securities of that Series, other than the non-payment of the principal and interest, if any, of
Securities of that Series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security when such
interest becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of principal of any Security at the Maturity
thereof, or
(c) default is made in the deposit of any sinking fund payment, if any, when
and as due by the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for principal and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on
any overdue principal and any overdue interest at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the compensation, reasonable expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts 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, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or deemed to be payable in the manner provided by
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law out of the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of any Series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal and interest
owing and unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the compensation, reasonable expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(b) to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by each 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 the Holders, to pay to the Trustee any amount due it for the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the
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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 compensation, reasonable expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been recovered.
Section 6.6. Application of Money Collected.
Any money or property 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 or property on account of principal or interest, upon presentation of
the Securities 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 or any Agent under
Section 7.7; and
Second: To the payment of the amounts then due and unpaid for principal
of and interest on the Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and interest, respectively; and
Third: To the Company.
Section 6.7. Limitation on Suits.
No Holder of any Security 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
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that Series;
(b) the Holders of not less than 25% in principal amount of the outstanding
Securities of that 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;
(c) such Holder or Holders have offered to the Trustee indemnity or security
satisfactory to the Trustee against the costs, expenses and liabilities which might be
incurred by the Trustee in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal amount of the
outstanding Securities of that Series;
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it being understood, intended and expressly covenanted by the Holder of every Security with
every other Holder and the Trustee 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 of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of all such Holders of
the applicable Series.
Section 6.8. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive payment of the principal of
and interest, if any, on such Security on the Maturity of such Security, including the Stated
Maturity expressed in such Security (or, in the case of redemption, on the redemption date) and
to institute suit for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 6.9. 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, subject to any determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though no such proceeding
had been instituted.
Section 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 2.8, 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, to the extent permitted by law, prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Agent or of any Holder of any Securities
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 an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
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Section 6.12. Control by Holders.
The Holders of a majority in principal amount of the outstanding Securities of any
Series shall have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee,
with respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or with this
Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction,
(c) subject to the provisions of Section 7.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall determine that the
proceeding so directed would involve the Trustee in personal liability, and
(d) prior to taking any action as directed under this Section 6.12, the Trustee
shall be entitled to indemnity and security satisfactory to it against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or direction.
Section 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the outstanding
Securities of any Series may on behalf of the Holders of all the Securities of such Series, by
written notice to the Trustee and the Company, waive any past Default hereunder with respect to
such Series and its consequences, except a Default in the payment of the principal of or interest
on any Security of such Series (provided, however, that the Holders of a majority in principal
amount of the outstanding Securities of any Series may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration). 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 this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the outstanding
Securities of any Series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security on or after the Maturity of such Security,
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including the Stated Maturity expressed in such Security (or, in the case of redemption, on the
redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall
exercise 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 person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are specifically set
forth in this Indenture and no others.
(ii) 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 Officer’s Certificates or Opinions of Counsel
furnished to the Trustee and conforming to the requirements of this Indenture;
however, in the case of any such Officer’s Certificates or Opinions of Counsel
which by any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officer’s Certificates and Opinions of
Counsel to determine whether or not they conform to the form requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of this
Section.
(ii) The Trustee shall not be liable for any error of judgment made in
good faith, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts.
(iii) The Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Securities of any Series in
good faith in accordance with the direction of the Holders of a majority in
principal amount of the outstanding Securities of such Series relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such Series in accordance with Section
6.12.
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(d) Every provision of this Indenture that in any way relates to the Trustee is
subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or power
unless it receives indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in performing such duty or exercising such right
or power.
(f) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree in writing with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to risk its own
funds or otherwise incur any financial liability in the performance of any of its duties, or
in the exercise of any of its rights or powers, if adequate indemnity against such risk is
not assured to the Trustee in its satisfaction.
(h) Each Agent and any authenticating agent shall be entitled to the
protections and immunities as are set forth in Article 7 with respect to the Trustee.
Section 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely on and shall be protected in acting or
refraining from acting upon any document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officer’s
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officer’s Certificate or
Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care. No Depositary shall be
deemed an agent of the Trustee and the Trustee shall not be responsible for any act or
omission by any Depositary.
(d) The Trustee shall not be liable for any action it takes or omits to take in
good faith which it believes to be authorized or within its rights or powers, provided that
the Trustee’s conduct does not constitute willful misconduct or negligence.
(e) 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 without willful misconduct or
negligence, and in reliance thereon.
(f) 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
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Securities unless such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(g) 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.
(h) The Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Responsible Officer has actual knowledge thereof or unless written
notice of any event which is in fact such a default is actually received by the Trustee at
the Corporate Trust Office, and such notice references the Securities generally or the
Securities of a particular Series and this Indenture.
(i) In no event shall the Trustee be liable to any person for special, punitive,
indirect, consequential or incidental loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Trustee has been advised of the likelihood of
such loss or damage.
(j) The permissive right of the Trustee to take the actions permitted by this
Indenture shall not be construed as an obligation or duty to do so.
(k) Under no circumstances shall the Trustee be liable in its individual
capacity, or otherwise, for the obligations evidenced by the Securities.
(l) The Trustee shall have no obligation to undertake any calculation
hereunder or have any liability for any calculation performed in connection herewith or
the transactions contemplated hereunder.
(m) The Trustee shall not be required to give any bond or surety in respect of
the performance of its powers and duties hereunder.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company
with the same rights it would have if it were not Trustee. Any Agent may do the same with like
rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4. Trustee’s Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds
from the Securities, and it shall not be responsible for any statement in the Securities other than
its authentication.
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Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect to the
Securities of any Series and if it is actually known to a Responsible Officer, the Trustee shall
send to each Securityholder of the Securities of that Series notice of such Default or Event of
Default within 90 days after it occurs or, if later, after a Responsible Officer has knowledge of
such Default or Event of Default. Except in the case of a Default or Event of Default in payment
of principal of or interest on any Security of any Series, the Trustee may withhold the notice if
and so long as it in good faith determines that withholding the notice is in the interest of
Securityholders of that Series.
Section 7.6. Reports by Trustee to Holders.
Within 60 days after each anniversary of the date of this Indenture, the Trustee
shall deliver to all Securityholders, as their names and addresses appear on the register kept by
the Registrar, a brief report dated as of such anniversary date, in accordance with, and to the
extent required under, TIA § 313.
A copy of each report at the time of its mailing to Securityholders of any Series
shall be filed with the SEC and each national securities exchange on which the Securities of that
Series are listed. The Company shall promptly notify the Trustee when Securities of any Series
are listed (or delisted as the case may be) on any national securities exchange.
Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee (acting in any capacity hereunder) from
time to time compensation for its services as the Company and the Trustee shall from time to
time agree upon in writing. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out of pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and expenses of the Trustee’s agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor Trustee
(including for the cost of defending itself) against any cost, expense or liability, including taxes
(other than taxes based upon, measured by or determined by the income of the Trustee) incurred
by it except as set forth in the next paragraph in the performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity, although the failure to so notify shall not negate any
indemnification obligation hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have one separate counsel and the Company shall
pay the reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent will not be unreasonably withheld. This
indemnification shall apply to officers, directors, employees, shareholders and agents of the
Trustee.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the
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Trustee through willful misconduct or negligence, as determined by a court of competent
jurisdiction in a final non-appealable order.
To secure the Company’s payment obligations in this Section, the Trustee shall
have a lien prior to the Securities of any Series on all money or property held or collected by the
Trustee, except that held in trust to pay principal of and interest on particular Securities of that
Series.
When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.1(d) or (e) occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this Indenture and
the resignation or removal of the Trustee.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of appointment as provided
in this Section.
The Trustee may resign with respect to the Securities of one or more Series by so
notifying the Company at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the Securities of any Series may remove the Trustee
with respect to that Series by so notifying the Trustee and the Company at least 30 days prior.
The Company may, upon 30-day notice, remove the Trustee with respect to Securities of one or
more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee with respect to the Securities of any one or more Series
does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring
Trustee (at the expense of the Company in the case of a petition by the Trustee), the Company or
the Holders of at least a majority in principal amount of the Securities of the applicable Series
may petition any court of competent jurisdiction for the appointment of a successor Trustee.
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A successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer
all property held by it as Trustee to the successor Trustee subject to the lien provided for in
Section 7.7, the resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each
Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee
shall mail a notice of its succession to each Securityholder of each such Series. Notwithstanding
replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section
7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and
liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights,
powers and duties under this Indenture prior to such replacement. The resigning or removed
Trustee shall have no liability or responsibility for the action or inaction of any successor
Trustee.
Section 7.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee, subject to Section 7.10.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements of TIA
§ 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA § 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed
in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a)
to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order be discharged with respect to the
Securities of any Series and cease to be of further effect as to all Securities of such Series (except
as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall
execute instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities of such Series theretofore authenticated and delivered
(other than Securities that have been destroyed, lost or stolen and that have been
replaced or paid) have been delivered to the Trustee for cancellation; or
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(ii) all such Securities of such Series not theretofore delivered to the
Trustee for cancellation
(1) have become due and payable by reason of sending a notice
of redemption or otherwise, or
(2) will become due and payable at their Stated Maturity
within one year, or
(3) have been called for redemption or are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company, or
(4) are deemed paid and discharged pursuant to Section 8.3, as
applicable;
and the Company, in the case of (1), (2) or (3) above, shall have irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust an amount of money or U.S. Government
Obligations, which amount shall be sufficient for the purpose of paying and discharging each
installment of principal (including mandatory sinking fund or analogous payments) of and
interest on all the Securities of such Series on the dates such installments of principal or interest
are due;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company shall have delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided for
relating to the satisfaction and discharge contemplated by this Section have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations
of the Company to the Trustee under Section 7.7, and, if money shall have been deposited with
the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and
8.5 shall survive.
Section 8.2. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money and U.S. Government
Obligations or Foreign Government Obligations deposited with the Trustee pursuant to
Section 8.1, 8.3 or 8.4 and all money received by the Trustee in respect of U.S.
Government Obligations or Foreign Government Obligations deposited with the Trustee
pursuant to Section 8.1, 8.3 or 8.4, shall be held in trust and applied by it, in accordance
with the provisions of the Securities 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 interest for
whose payment such money has been deposited with or received by the Trustee or to
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make mandatory sinking fund payments or analogous payments as contemplated by
Sections 8.1, 8.3 or 8.4.
(b) The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against U.S. Government Obligations or
Foreign Government Obligations deposited pursuant to Sections 8.1, 8.3 or 8.4 or the
interest and principal received in respect of such obligations other than any payable by or
on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time upon
Company Order any U.S. Government Obligations or Foreign Government Obligations
or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a
nationally recognized firm of independent certified public accountants or investment
bank expressed in a written certification thereof delivered to the Trustee, are then in
excess of the amount thereof which then would have been required to be deposited for the
purpose for which such U.S. Government Obligations or Foreign Government
Obligations or money were deposited or received. This provision shall not authorize the
sale by the Trustee of any U.S. Government Obligations or Foreign Government
Obligations held under this Indenture.
Section 8.3. Legal Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2, to be
inapplicable to Securities of any Series, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the outstanding Securities of any Series on the 91st day
after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect
(and the Trustee, at the expense of the Company, shall, upon receipt of a Company Order,
execute instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such Series to receive, from the trust
funds described in subparagraph (d) hereof, (i) payment of the principal of and each
installment of principal of and interest on the outstanding Securities of such Series on the
Maturity of such principal or installment of principal or interest and (ii) the benefit of any
mandatory sinking fund payments applicable to the Securities of such Series on the day
on which such payments are due and payable in accordance with the terms of this
Indenture and the Securities of such Series;
(b) the provisions of Sections 2.4, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the rights, powers, trusts and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have irrevocably deposited or caused to be deposited
(except as provided in Section 8.2(c)) with the Trustee as trust funds specifically pledged
as security for and dedicated solely to the benefit of the Holders of such Securities (i) in
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the case of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S.
Government Obligations, or (ii) in the case of Securities of such Series denominated in a
Foreign Currency (other than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in respect thereof in
accordance with their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, sufficient, in the opinion of a nationally
recognized firm of independent public accountants or investment bank expressed in a
written certification thereof delivered to the Trustee, to pay and discharge each
installment of principal of and interest, on and any mandatory sinking fund payments in
respect of all the Securities of such Series on the dates such installments of principal or
interest and such sinking fund payments are due;
(e) 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;
(f) no Default or Event of Default with respect to the Securities of such Series
shall have occurred and be continuing on the date of such deposit or during the period
ending on the 91st day after such date;
(g) the Company shall have delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel to the effect that (i) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Securities of such Series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred;
(h) the Company shall have delivered to the Trustee an Officer’s Certificate
stating that the deposit was not made by the Company with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company; and
(i) the Company shall have delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided for
relating to the defeasance contemplated by this Section have been complied with.
Section 8.4. Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to Section 2.2 to be
inapplicable to Securities of any Series, the Company may omit to comply with respect to the
Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3,
4.4, 4.5, 4.6 and 5.1 and, unless otherwise specified therein, any additional covenants specified in
a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s
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Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such covenants
shall not constitute a Default or Event of Default with respect to such Series under Section 6.1)
and the occurrence of any event specified in a supplemental indenture for such Series of
Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2.18
and designated as an Event of Default shall not constitute a Default or Event of Default
hereunder, with respect to the Securities of such Series, but, except as specified above, the
remainder of this Indenture and such Securities will be unaffected thereby; provided that the
following conditions shall have been satisfied:
(a) with reference to this Section 8.4, the Company has irrevocably deposited
or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the
Trustee as trust funds in trust for the purpose of making the following payments
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of
such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in
Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such
Series denominated in a Foreign Currency (other than a composite currency), money
and/or Foreign Government Obligations, which through the payment of interest and
principal in respect thereof in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee), not later
than one day before the due date of any payment of money, an amount in cash, sufficient,
in the opinion of a nationally recognized firm of independent certified public accountants
or investment bank expressed in a written certification thereof delivered to the Trustee, to
pay and discharge each installment of principal (including mandatory sinking fund or
analogous payments) of and interest on all the Securities of such Series on the dates such
installments of principal or interest are due;
(b) 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;
(c) no Default or Event of Default with respect to the Securities of such Series
shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel to the effect that (i) the company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of Counsel shall
confirm, subject to customary exclusions, that the Holders of the Securities of such Series
will not recognize income, gain or loss for Federal income tax purposes as a result of
such deposit, covenant defeasance and discharge and will be subject to Federal income
tax on the same amount and in the same manner and at the same times as would have
been the case if such deposit, covenant defeasance and discharge had not occurred;
(e) The Company shall have delivered to the Trustee an Officer’s Certificate
stating the deposit was not made by the Company with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
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(f) The Company shall have delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein provided for
relating to the covenant defeasance contemplated by this Section have been complied
with.
Section 8.5. Repayment to Company.
Subject to applicable abandoned property law, the Trustee and the Paying Agent
shall pay to the Company upon request any money held by them for the payment of principal and
interest that remains unclaimed for two years. After that, Securityholders entitled to the money
must look to the Company for payment as general creditors unless an applicable abandoned
property law designates another person.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the
Securities of one or more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(d) to add guarantees with respect to Securities of any Series or secure
Securities of any Series;
(e) to surrender any of the Company’s rights or powers under this Indenture;
(f) to add covenants or events of default for the benefit of the holders of
Securities of any Series;
(g) to comply with the applicable procedures of the applicable depositary;
(h) to make any change that does not adversely affect the rights of any
Securityholder;
(i) to provide for the issuance of and establish the form and terms and
conditions of Securities of any Series as permitted by this Indenture;
(j) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more Series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee; or
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(k) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders.
The Company and the Trustee may enter into a supplemental indenture with the
written consent of the Holders of at least a majority in principal amount of the outstanding
Securities of each Series affected by such supplemental indenture (including consents obtained in
connection with a tender offer or exchange offer for the Securities of such Series), for the
purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Securityholders of each such Series. Except as provided in Section 6.13, the
Holders of at least a majority in principal amount of the outstanding Securities of any Series by
notice to the Trustee (including consents obtained in connection with a tender offer or exchange
offer for the Securities of such Series) may waive compliance by the Company with any
provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities under this
Section 9.2 to approve the particular form of any proposed supplemental indenture or waiver, but
it shall be sufficient if such consent approves the substance thereof. After a supplemental
indenture or waiver under this section becomes effective, the Company shall send to the Holders
of Securities affected thereby, a notice briefly describing the supplemental indenture or waiver.
Any failure by the Company to send such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each Securityholder affected, an amendment or waiver
may not:
(a) reduce the principal amount of Securities whose Holders must consent to
an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest (including
default interest) on any Security;
(c) reduce the principal or change the Stated Maturity of any Security or
reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or
analogous obligation;
(d) reduce the principal amount of Discount Securities payable upon
acceleration of the maturity thereof;
(e) waive a Default or Event of Default in the payment of the principal of or
interest, if any, on any Security (except a rescission of acceleration of the Securities of
any Series by the Holders of at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that resulted from such
acceleration);
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(f) make the principal of or interest, if any, on any Security payable in any
currency other than that stated in the Security;
(g) make any change in Sections 6.8, 6.13 or 9.3 (this sentence); or
(h) waive a redemption payment with respect to any Security, provided that
such redemption is made at the Company’s option.
Section 9.4. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more Series shall
be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.5. Revocation and Effect of Consents.
Until an amendment is set forth in a supplemental indenture or a waiver becomes
effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and
every subsequent Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to his Security or
portion of a Security if the Trustee receives the notice of revocation before the date of the
supplemental indenture or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of each
Series affected by such amendment or waiver unless it is of the type described in any of clauses
(a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder’s Security.
The Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders entitled to give their consent or take any other action described above
or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the second immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those persons, shall be entitled to
give such consent or to revoke any consent previously given or take any such action, whether or
not such Persons continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
Section 9.6. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate notation about an
amendment or waiver on any Security of any Series thereafter authenticated. The Company in
exchange for Securities of that Series may issue and the Trustee shall authenticate upon receipt
of a Company Order in accordance with Section 2.3 new Securities of that Series that reflect the
amendment or waiver.
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Section 9.7. Trustee Protected.
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 7.1) shall be fully
protected in relying upon, an Officer’s Certificate or an Opinion of Counsel or both complying
with Section 10.4. The Trustee shall sign all supplemental indentures upon delivery of such an
Officer’s Certificate or Opinion of Counsel or both, except that the Trustee need not sign any
supplemental indenture that adversely affects its rights, duties, liabilities or immunities under this
Indenture. Each Opinion of Counsel provided in connection with the execution of a supplemental
indenture shall also provide that the supplemental indenture is the legal, valid and binding
obligation of the Company (and any Guarantor) in accordance with its terms.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with another
provision which is required or deemed to be included in this Indenture by the TIA, such required
or deemed provision shall control.
Section 10.2. Notices.
Any notice or communication by the Company or the Trustee to the other, or by a
Holder to the Company or the Trustee, is duly given if in writing and delivered in person or
mailed by first-class mail (registered or certified, return receipt requested), facsimile
transmission, email or overnight air courier guaranteeing next day delivery, to the others’
address:
if to the Company:
Spirit Realty, L.P.
2727 North Harwood Street, Suite 300
Dallas, TX 75201
Attention: Chief Financial Officer
Telephone: (480) 606-0820
Facsimile: (800) 973-0850
with a copy to:
Latham & Watkins LLP
355 South Grand Avenue
Los Angeles, California 90071
Attention: Julian Kleindorfer
Telephone: (213) 891-8371
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if to the Trustee:
U.S. Bank National Association
Attention: Christopher J. Grell
Corporate Trust Services
100 Wall Street, 16th Floor
New York, NY 10005
Facsimile: (212) 361-6153
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be sent electronically or
by first-class mail to his address shown on the register kept by the Registrar, in accordance with
the procedures of the Depositary. Failure to send a notice or communication to a Securityholder
of any Series or any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
If a notice or communication is sent or published in the manner provided above,
within the time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company sends a notice or communication to Securityholders, it shall send
a copy to the Trustee and each Agent at the same time.
Notwithstanding any other provision of this Indenture or any Security, where this
Indenture or any Security provides for notice of any event (including any notice of redemption)
to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently
given to the Depositary for such Security (or its designee) pursuant to the customary procedures
of such Depositary.
Section 10.3. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA § 312(b) with
other Securityholders of that Series or any other Series with respect to their rights under this
Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA § 312(c).
Section 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer’s Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the proposed action
have been complied with; and
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(b) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided pursuant to TIA §
314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a statement that the person making such certificate or opinion has read
such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or
opinion are based;
(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Section 10.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable
requirements for its functions.
Section 10.7. Legal Holidays.
Unless otherwise provided by Board Resolution, Officer’s Certificate or
supplemental indenture hereto for a particular Series, a “Legal Holiday” is any day that is not a
Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
Section 10.8. No Recourse Against Others.
A director, officer, employee, partner, member, manager or stockholder (past or
present), as such, of the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the issue of the Securities.
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Section 10.9. Counterparts.
This Indenture may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. The
exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Indenture as to the parties hereto and may
be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto
transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 10.10. Governing Law.
THIS INDENTURE AND THE SECURITIES, INCLUDING ANY CLAIM
OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR
THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
Section 10.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company in this Indenture and the Securities shall bind its
successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13. Severability.
In case any provision in this Indenture or in the 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 10.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross Reference Table, and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 10.15. Securities in a Foreign Currency.
Unless otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with respect
to a particular Series of Securities, whenever for purposes of this Indenture any action may be
taken by the Holders of a specified percentage in aggregate principal amount of Securities of all
Series or all Series affected by a particular action at the time outstanding and, at such time, there
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are outstanding Securities of any Series which are denominated in more than one currency, then
the principal amount of Securities of such Series which shall be deemed to be outstanding for the
purpose of taking such action shall be determined by converting any such other currency into a
currency that is designated upon issuance of any particular Series of Securities. Unless
otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s
Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series
of Securities, such conversion shall be at the spot rate for the purchase of the designated currency
as published in The Financial Times in the “Currency Rates” section (or, if The Financial Times
is no longer published, or if such information is no longer available in The Financial Times, such
source as may be selected in good faith by the Company) on any date of determination. The
provisions of this paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a Series denominated in currency other than Dollars in connection with any
action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations provided for in the preceding paragraph shall, in
the absence of manifest error, to the extent permitted by law, be conclusive for all purposes and
irrevocably binding upon the Trustee and all Holders.
Section 10.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the principal of or interest or other amount on the Securities of
any Series (the “Required Currency”) into a currency in which a judgment will be rendered (the
“Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable judgment is
entered, unless such day is not a New York Banking Day, then the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee could purchase in
The City of New York the Required Currency with the Judgment Currency on the New York
Banking Day preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not
entered in accordance with subsection (a)), in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of
the full amount of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not
be affected by judgment being obtained for any other sum due under this Indenture. For
purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday
or a legal holiday in The City of New York on which banking institutions are authorized or
required by law, regulation or executive order to close.
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Section 10.17. Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces
beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services, it being understood that the Trustee shall use reasonable best efforts which
are consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
Section 10.18. U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A.
Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of
terrorism and money laundering, is required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the
Trustee. The parties to this Indenture agree that they will provide the Trustee with such
information as it may request in order for the Trustee to satisfy the requirements of the U.S.A.
Patriot Act.
Section 10.19. Jury Waiver.
EACH OF THE COMPANY, ANY GUARANTOR, THE
SECURITYHOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED
HEREBY OR THEREBY.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the
retirement of the Securities of a Series if so provided by the terms of such Securities pursuant to
Section 2.2 and except as otherwise permitted or required by any form of Security of such Series
issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
the Securities of any Series is herein referred to as a “mandatory sinking fund payment” and any
other amount provided for by the terms of Securities of such Series is herein referred to as an
“optional sinking fund payment.” If provided for by the terms of Securities of any Series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section
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11.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series
as provided for by the terms of the Securities of such Series.
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of any Series to be made pursuant to the terms of such Securities
(1) deliver outstanding Securities of such Series to which such sinking fund payment is
applicable (other than any of such Securities previously called for mandatory sinking fund
redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment
is applicable and which have been repurchased by the Company or redeemed either at the
election of the Company pursuant to the terms of such Series of Securities (except pursuant to
any mandatory sinking fund) or through the application of permitted optional sinking fund
payments or other optional redemptions pursuant to the terms of such Securities, provided that
such Securities have not been previously so credited. Such Securities shall be received by the
Trustee, together with an Officer’s Certificate with respect thereto, not later than 15 days prior to
the date on which the Trustee begins the process of selecting Securities for redemption, and shall
be credited for such purpose by the Trustee at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash
payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be
redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such Series for redemption, except upon receipt of a Company Order
that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or
such Paying Agent shall from time to time upon receipt of a Company Order pay over and
deliver to the Company any cash payment so being held by the Trustee or such Paying Agent
upon delivery by the Company to the Trustee of Securities of that Series purchased by the
Company having an unpaid principal amount equal to the cash payment required to be released
to the Company.
Section 11.3. Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the Board Resolution,
supplemental indenture hereto or Officer’s Certificate in respect of a particular Series of
Securities) prior to each sinking fund payment date for any Series of Securities, the Company
will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing
mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2,
and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund
payment, and the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution, Officer’s Certificate
or supplemental indenture in respect of a particular Series of Securities) before each such sinking
fund payment date the Securities to be redeemed upon such sinking fund payment date will be
selected in the manner specified in Section 3.2 and the Company shall send or cause to be sent a
notice of the redemption thereof to be given in the name of and at the expense of the Company in
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the manner provided in and in accordance with Section 3.3. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in the manner stated in
Sections 3.4, 3.5 and 3.6.
