exv4w1
EXHIBIT 4.1
Execution Copy
BROOKDALE SENIOR LIVING INC.
INDENTURE
Dated as of June 14, 2011
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC,
as
Trustee
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE |
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1 |
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Section 1.1 Definitions |
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1 |
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Section 1.2 Other Definitions |
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5 |
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Section 1.3 Incorporation by Reference of Trust Indenture Act |
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5 |
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Section 1.4 Rules of Construction |
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5 |
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ARTICLE 2 THE SECURITIES |
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6 |
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Section 2.1 Issuable in Series |
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6 |
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Section 2.2 Establishment of Terms of Series of Securities |
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6 |
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Section 2.3 Execution and Authentication |
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8 |
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Section 2.4 Registrar and Paying Agent |
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9 |
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Section 2.5 Paying Agent to Hold Money in Trust |
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10 |
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Section 2.6 Securityholder Lists |
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10 |
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Section 2.7 Exchange and Registration of Transfer |
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10 |
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Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities |
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11 |
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Section 2.9 Outstanding Securities |
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11 |
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Section 2.10 Treasury Securities |
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12 |
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Section 2.11 Temporary Securities |
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12 |
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Section 2.12 Cancellation |
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12 |
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Section 2.13 Defaulted Interest |
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12 |
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Section 2.14 Registered Global Securities |
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13 |
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Section 2.15 Computation of Interest |
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14 |
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Section 2.16 CUSIP and ISIN Numbers |
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14 |
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ARTICLE 3 REDEMPTION |
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14 |
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Section 3.1 Notice to Trustee |
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Section 3.2 Selection of Securities to be Redeemed |
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Section 3.3 Notice of Redemption |
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15 |
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Section 3.4 Effect of Notice of Redemption |
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Section 3.5 Deposit of Redemption Price |
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Section 3.6 Securities Redeemed in Part |
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15 |
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ARTICLE 4 COVENANTS |
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16 |
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Section 4.1 Payment of Principal and Interest |
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Section 4.2 SEC Reports |
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Section 4.3 Compliance Certificate |
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16 |
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Section 4.4 Stay, Extension and Usury Laws |
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Section 4.5 Corporate Existence |
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Section 4.6 Maintenance of Office or Agency |
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Section 4.7 Money For Securities Payments to be Held in Trust |
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Section 4.8 Waiver of Certain Covenants |
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18 |
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ARTICLE 5 SUCCESSORS |
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Section 5.1 When Company May Merge, Etc. |
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Section 5.2 Successor Corporation Substituted |
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18 |
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ARTICLE 6 DEFAULTS AND REMEDIES |
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18 |
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Section 6.1 Events of Default |
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Section 6.2 Acceleration of Maturity; Rescission and Annulment |
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20 |
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Section 6.3 Collection of Indebtedness and Suits for Enforcement by Trustee |
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21 |
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Section 6.4 Trustee May File Proofs of Claim |
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22 |
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Section 6.5 Trustee May Enforce Claims Without Possession of Securities |
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22 |
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Section 6.6 Application of Money Collected |
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22 |
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Section 6.7 Limitation on Suits |
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23 |
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Section 6.8 Unconditional Right of Holders to Receive Principal and Interest |
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23 |
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Section 6.9 Restoration of Rights and Remedies |
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23 |
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Section 6.10 Rights and Remedies Cumulative |
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24 |
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Section 6.11 Delay or Omission Not Waiver |
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24 |
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Section 6.12 Control by Holders |
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24 |
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Section 6.13 Waiver of Past Defaults |
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24 |
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Section 6.14 Undertaking for Costs |
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24 |
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ARTICLE 7 TRUSTEE |
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25 |
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Section 7.1 Duties of Trustee |
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Section 7.2 Rights of Trustee |
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Section 7.3 Individual Rights of Trustee |
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27 |
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Section 7.4 Trustees Disclaimer |
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27 |
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Section 7.5 Notice of Defaults |
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27 |
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Section 7.6 Reports by Trustee to Holders |
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27 |
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Section 7.7 Compensation and Indemnity |
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27 |
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Section 7.8 Replacement of Trustee |
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28 |
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Section 7.9 Successor Trustee by Merger, etc. |
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Section 7.10 Eligibility; Disqualification |
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Section 7.11 Preferential Collection of Claims Against Company |
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29 |
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ARTICLE 8 SATISFACTION AND DISCHARGE; DEFEASANCE |
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29 |
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Section 8.1 Satisfaction and Discharge of Indenture |
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Section 8.2 Application of Trust Funds; Indemnification |
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30 |
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Section 8.3 Legal Defeasance of Securities of any Series |
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31 |
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Section 8.4 Covenant Defeasance |
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32 |
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Section 8.5 Repayment to Company |
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Section 8.6 Effect of Subordination Provisions |
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33 |
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ARTICLE 9 AMENDMENTS AND WAIVERS |
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33 |
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Section 9.1 Without Consent of Holders |
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Section 9.2 With Consent of Holders |
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Section 9.3 Limitations |
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Section 9.4 Compliance with Trust Indenture Act |
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35 |
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Section 9.5 Revocation and Effect of Consents |
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35 |
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Section 9.6 Notation on or Exchange of Securities |
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Section 9.7 Trustee Protected |
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36 |
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ARTICLE 10 SUBORDINATION OF SECURITIES |
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36 |
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Section 10.1 Agreement to Subordinate |
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36 |
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ARTICLE 11 MISCELLANEOUS |
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36 |
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Section 11.1 Trust Indenture Act Controls |
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36 |
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Section 11.2 Notices |
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Section 11.3 Communication by Holders with Other Holders |
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37 |
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Section 11.4 Certificate and Opinion as to Conditions Precedent |
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37 |
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Section 11.5 Statements Required in Certificate or Opinion |
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37 |
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Section 11.6 Rules by Trustee and Agents |
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38 |
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Section 11.7 Legal Holidays |
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38 |
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Section 11.8 No Recourse Against Others |
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38 |
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Section 11.9 Counterparts |
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38 |
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Section 11.10 Governing Laws; Waiver of Jury Trial |
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38 |
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Section 11.11 No Adverse Interpretation of Other Agreements |
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38 |
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Section 11.12 Successors |
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38 |
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Section 11.13 Severability |
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39 |
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Section 11.14 Table of Contents, Headings, Etc. |
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39 |
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Section 11.15 Securities in a Foreign Currency or in ECU |
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39 |
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Section 11.16 Judgment Currency |
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39 |
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Section 11.17 Acts of Holders |
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40 |
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ARTICLE 12 SINKING FUNDS |
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41 |
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Section 12.1 Applicability of Article |
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Section 12.2 Satisfaction of Sinking Fund Payments with Securities |
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Section 12.3 Redemption of Securities for Sinking Fund |
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iii
BROOKDALE SENIOR LIVING INC.
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of June 14, 2011.
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§ 310(a)(1) |
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7.10 |
(a)(2) |
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7.10 |
(a)(3) |
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Not Applicable |
(a)(4) |
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Not Applicable |
(a)(5) |
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7.10 |
(b) |
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7.10 |
§ 311(a) |
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7.11 |
(b) |
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7.11 |
(c) |
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Not Applicable |
§ 312(a) |
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2.6 |
(b) |
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11.3 |
(c) |
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11.3 |
§ 313(a) |
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7.6 |
(b)(1) |
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7.6 |
(b)(2) |
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7.6 |
(c) |
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7.6 |
(d) |
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7.6 |
§ 314(a) |
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4.2, 4.3 |
(b) |
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Not Applicable |
(c)(1) |
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11.4 |
(c)(2) |
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11.4 |
(c)(3) |
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Not Applicable |
(d) |
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Not Applicable |
(e) |
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11.5 |
(f) |
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Not Applicable |
§ 315(a) |
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7.1 |
(b) |
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7.5 |
(c) |
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7.1 |
(d) |
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7.1 |
(e) |
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6.14 |
§ 316(a) |
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2.10 |
(a)(1)(A) |
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6.12 |
(a)(1)(B) |
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6.13 |
(b) |
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6.8 |
§ 317(a)(1) |
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6.3 |
(a)(2) |
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6.4 |
(b) |
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2.5 |
§ 318(a) |
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11.1 |
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture.
Indenture dated as of June 14, 2011, between Brookdale Senior Living Inc., a Delaware corporation
(the Company), and American Stock Transfer & Trust Company, LLC, a New York limited liability trust company, as trustee hereunder (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 1
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 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 direct or indirect common control with such specified Person.
For the purposes of this definition, control when used with respect to any Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing.
Agent means any Registrar, Paying Agent, co-agent, co-registrar or Service Agent.
Authorized Newspaper means a newspaper in an official language of the country of publication
customarily published at least once a day for at least five days in each calendar week and of
general circulation in the place in connection with which the term is used. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that is made or given by
the Trustee shall constitute a sufficient publication of such notice.
Bearer means anyone in possession from time to time of a Bearer Security.
Bearer Global Security or Bearer Global Securities means a Bearer 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 Bearer Securities, deposited with a common depositary for Euroclear Bank S.A./N.V., as
operator of the Euroclear System and/or Clearstream Banking, société anonyme, Luxembourg.
Bearer Security means any Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.
Board of Directors means the Board of Directors of the Company or any duly authorized
committee thereof.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company 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, Officers Certificate or
supplemental indenture hereto for a particular Series, each day which is not a Legal Holiday.
Capital Stock of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
equity of such Person, including any Preferred Stock, but excluding any debt securities convertible
into such equity.
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 two Officers, one
of whom must be the Companys principal executive officer, principal financial officer or principal
accounting officer.
Company Request means a written request signed in the name of the Company by its Chairman of
the Board, a President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
Corporate Trust Office means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered.
Debt of any Person as of any date means, without duplication, all indebtedness of such
Person in respect of borrowed money, including all interest, fees and expenses owed in respect
thereto (whether or not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments.
Default means any event which is, or after notice or passage of time 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 Securities in global form, 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 means the currency of the United States of America.
ECU means the European Currency Unit as determined by the Commission of the European Union.
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, (i) direct obligations of the government that issued or caused
to be issued such currency for the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by or acting as an agency or
instrumentality of such government the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case under clauses (i) or
(ii), are not callable or redeemable at the option of the issuer thereof.
Holder or Securityholder means a Person in whose name a Security is registered in the
Register or the holder of a Bearer Security.
Indenture means this Indenture as originally executed and delivered and as amended from time
to time and shall include the form and terms of particular Series of Securities established as
contemplated hereunder.
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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 or installment of principal thereof, means
the date on which the principal of such Security or such installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, notice of option to elect repayment or otherwise.
Officer means the Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer
or any Assistant Secretary of the Company.
Officers Certificate means a certificate signed by two Officers, one of whom must be the
Companys principal executive officer, principal financial officer or principal accounting officer.
Opinion of Counsel means a written opinion of legal counsel who is reasonably acceptable to
the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.
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.
Place of Payment, when used with respect to the Securities of any Series, means the place or
places specified in accordance with Section 2.2 where the principal of and any premium and interest
on the Securities of that Series are payable, or if not so specified, in accordance with Section
4.6.
Preferred Stock, as applied to the Capital Stock of any Person, means Capital Stock of any
class or classes (however designated) that is preferred as to the payment of dividends, or as to
the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
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.
Registered Global Security or Registered 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.
Registered Securities means any Security registered on the Register of the Company.
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.
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.
Senior Debt means the principal of, premium, if any, unpaid interest, and all fees and other
amounts payable in connection with the following, whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, on (x) the Debt of the Company, for money
borrowed other than (a) any Debt of the Company which when incurred and without respect to any
election under Section 1111(b) of the Federal Bankruptcy Code, was without recourse to the Company,
(b) any Debt of the Company to any of its Subsidiaries, (c) Debt to any employee of the Company,
(d) any liability for taxes and (e) Trade Payables, unless the instrument creating or evidencing
the same or pursuant to which the same is outstanding provides that such Debt is not senior or
3
prior in right of payment to the Securities, (y) all obligations of the Company under interest
rate, currency and commodity swaps, caps, floors, collars, hedge arrangements, forward contracts or
similar agreements or arrangements and (z) renewals, extensions, modifications and refundings of
any such Debt. This definition may be modified or superseded by a supplemental indenture.
Senior Securities means Securities other than Subordinated Securities.
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.
Stated Maturity when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable
(without regard for any provisions for acceleration, redemption prepayment or otherwise).
Subordinated Securities means Securities that by the terms established pursuant to Section
2.2.9 are subordinated in right of payment to Senior Debt of the Company.
Subordination Provisions, when used with respect to the Subordinated Securities of any
Series, shall have the meaning established pursuant to Section 2.2.9 with respect to the
Subordinated Securities of such Series.
Subsidiary of any Person means any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of shares of Capital Stock or other
interests (including partnership interests) 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 (i) such Person, (ii) such Person and one or more
Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.
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 of 1939 as so amended.
Trade Payables means accounts payable or any other Debt or monetary obligations to trade
creditors created or assumed by the Company or any Subsidiary of the Company in the ordinary course
of business in connection with the receipt of materials or services.
Trust Officer means any officer within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture.
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 direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable or redeemable at the issuers option.
4
Section 1.2 Other Definitions.
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DEFINED IN |
TERM |
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SECTION |
Bankruptcy Law |
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6.1 |
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Custodian |
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6.1 |
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Event of Default |
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6.1 |
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Journal |
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11.15 |
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Judgment Currency |
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11.16 |
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Legal Holiday |
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11.7 |
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mandatory sinking fund payment |
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12.1 |
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Market Exchange Rate |
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11.15 |
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New York Banking Day |
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11.16 |
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optional sinking fund payment |
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12.1 |
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Paying Agent |
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2.4 |
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Register |
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2.4 |
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Registrar |
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2.4 |
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Required Currency |
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11.16 |
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Service Agent |
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2.4 |
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successor person |
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5.1 |
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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 generally accepted accounting principles;
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(c) references to generally accepted accounting principles shall mean generally
accepted accounting principles in effect as of the time when and for the period as to which
such accounting principles are to be applied;
(d) or is not exclusive; and
(e) words in the singular include the plural, and in the plural include the singular.
ARTICLE 2
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 in a Board Resolution, a supplemental
indenture or an Officers Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a Series to be issued
from time to time, the Board Resolution, Officers Certificate or supplemental indenture 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
2.2.24) by a Board Resolution, a supplemental indenture or an Officers Certificate pursuant to
authority granted under a Board Resolution:
2.2.1 the title and designation of the Securities of the Series, which shall distinguish the
Securities of the Series from the Securities of all other Series, and which may be part of a Series
of Securities previously issued;
2.2.2 any limit upon the aggregate principal amount of the Securities of the Series that 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);
2.2.3 if other than Dollars, the Foreign Currency or Foreign Currencies in which the
Securities of the Series are denominated;
2.2.4 the date or dates on which the principal of the Securities of the Series is payable or
the method of determination thereof;
2.2.5 the rate or rates (which may be fixed or variable) at which the Securities of the Series
shall bear interest, if any, the date or dates from which such interest shall accrue, on which such
interest shall be payable, the terms and conditions of any deferral of interest and the additional
interest, if any, thereon, the right, if any, of the Company to extend the interest payment periods
and the duration of the extensions and (in the case of Registered Securities) the date or dates on
which a record shall be taken for the determination of Holders to whom interest is payable and/or
the method by which such rate or rates or date or dates shall be determined;
2.2.6 the place or places where and the manner in which, the principal of and any interest on
Securities of the Series shall be payable;
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2.2.7 the right, if any, of the Company to redeem Securities, in whole or in part, at its
option and the period or periods within which, or the date or dates on which, the price or prices
at which and any terms and conditions upon which Securities of the Series may be so redeemed,
pursuant to any sinking fund or otherwise;
2.2.8 the obligation, if any, of the Company to redeem, purchase or repay Securities of the
Series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option
of a Holder thereof and the price or prices at which and the period or periods within which or the
date or dates on which, and any terms and conditions upon which Securities of the Series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
2.2.9 if the Securities of such Series are Subordinated Securities, the terms pursuant to
which the Securities of such Series will be made subordinate in right of payment to Senior Debt and
the definition of such Senior Debt with respect to such Series (in the absence of an express
statement to the effect that the Securities of such Series are subordinate in right of payment to
all such Senior Debt, the Securities of such Series shall not be subordinate to Senior Debt and
shall not constitute Subordinated Securities); and, in the event that the Securities of such Series
are Subordinated Securities, such Board Resolution, Officers Certificate or supplemental
indenture, as the case may be, establishing the terms of such Series shall expressly state which
articles, sections or other provisions thereof constitute the Subordination Provisions with
respect to the Securities of such Series;
2.2.10 if other than denominations of $1,000 and any integral multiple thereof in the case of
Registered Securities, or $1,000 and $5,000 in the case of Bearer Securities, the denominations in
which Securities of the Series shall be issuable;
2.2.11 the percentage of the principal amount at which the Securities will be issued, and, if
other than the principal amount thereof, the portion of the principal amount of Securities of the
Series which shall be payable upon declaration of acceleration of the maturity thereof and the
terms and conditions of any acceleration;
2.2.12 if other than the coin, currency or currencies in which the Securities of the Series
are denominated, the coin, currency or currencies in which payment of the principal of or interest
on the Securities of such Series shall be payable, including composite currencies or currency
units;
2.2.13 if the principal of or interest on the Securities of the Series are to be payable, at
the election of the Company or a Holder thereof, in a coin or currency other than that in which the
Securities are denominated, the period or periods within which, and the terms and conditions upon
which, such election may be made;
2.2.14 if the amount of payments of principal of and interest on the Securities of the Series
may be determined with reference to an index or formula based on a coin, currency, composite
currency or currency unit other than that in which the Securities of the Series are denominated,
the manner in which such amounts shall be determined;
2.2.15 whether the Securities of the Series will be issuable as Registered Securities (and if
so, whether such Securities will be issuable as Registered Global Securities) or Bearer Securities,
with or without interest coupons appertaining thereto (and if, so whether such Securities will be
issuable as Bearer Global Securities), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Bearer Securities or the payment of interest thereon
and the terms upon which Bearer Securities of any Series may be exchanged for Registered Securities
of such Series and vice versa;
2.2.16 whether and under what circumstances the Company will pay additional amounts on the
Securities of the Series held by a person who is not a U.S. person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the Company will have
the option to redeem the Securities of the Series rather than pay such additional amounts;
7
2.2.17 if the Securities of the Series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such Series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, the form and terms of
such certificates, documents or conditions;
2.2.18 any trustees, depositaries, authenticating or paying agents, transfer agents or
registrars of any other agents with respect to the Securities of such Series;
2.2.19 any deletion from, modification of or addition to the Events of Default or covenants
with respect to the Securities of such Series, including, if applicable, covenants affording
Holders of debt protection with respect to the Companys operations, financial conditions and
transactions involving the Company;
2.2.20 if the Securities of the Series are to be convertible into or exchangeable for any
other security or property of the Company, including, without limitation, securities of another
Person held by the Company or its Affiliates and, if so, the terms thereof, including conversion or
exchange prices or rate and adjustments thereto;
2.2.21 the price or prices at which the Securities will be issued;
2.2.22 any provisions for remarketing;
2.2.23 the terms applicable to any Securities issued at a discount from their stated principal
amount; and
2.2.24 any other terms of the 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 or Officers Certificate referred to above, and the
authorized principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers Certificate.
Section 2.3 Execution and Authentication.
One or more Officers 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 be valid nevertheless so long as such individual was
an Officer at the time of execution of the Security.
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
Officers Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or electronic instructions from the Company
or its duly authorized agent or agents, which oral instructions shall be promptly confirmed
electronically or in writing. Each Security shall be dated the date of its authentication unless
otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers
Certificate.
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 Officers Certificate delivered pursuant to Section
2.2, except as provided in Section 2.8.
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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 Officers 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 Officers Certificate complying with Section 11.4, and (c)
an Opinion of Counsel complying with Section 11.4.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken; or (b) if the Trustee in good faith shall determine that such action would expose the
Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Securities. Any such appointment shall be evidenced by an instrument signed by a
Trust Officer, a copy of which shall be furnished to the Company. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an
Affiliate.
Section 2.4 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 served (Service Agent). The Registrar shall keep a register with respect to
each Series of Registered Securities (the Register) 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 Service Agent. If at any time the Company
shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to
furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more co-registrars, additional paying
agents or additional service 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 Service 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 service agent. The
term Registrar includes any co-registrar; the term Paying Agent includes any additional paying
agent; and the term Service Agent includes any additional service agent.
The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent
for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is
appointed prior to the time Securities of that Series are first issued. The Company or any of its
domestically organized Subsidiaries may act as Paying Agent, Registrar or Service Agent.
The rights, privileges, protections, immunities and benefits given to the Trustee under this
Indenture including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each Agent acting hereunder.
The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or Service Agent not a party to this Indenture, which shall incorporate the terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such agent. The Company
shall notify the Trustee of the name and address of any such agent.
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The Company may remove any Registrar, Paying Agent or Service Agent for any Series of Securities
upon written notice to such Registrar, Paying Agent or Service Agent and to the Trustee; provided,
however, that no such removal shall become effective until (1) acceptance of an appointment by a
successor as evidenced by an appropriate agreement entered into by the Company and such successor
Registrar, Paying Agent or Service Agent, as the case may be, and delivered to the Trustee or (2)
notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the
appointment of a successor in accordance with clause (1) above. The Registrar, Paying Agent or
Service Agent may resign at any time upon written notice; provided, however, that the Trustee may
resign as Paying Agent, Registrar or Service Agent only if the Trustee also resigns as Trustee in
accordance with Section 7.8.
Section 2.5 Paying Agent to Hold Money in Trust.
Prior to each due date of the principal and interest on any Series of Securities, the Company
shall deposit with the Paying Agent (or if the Company or a Subsidiary is acting as Paying Agent,
segregate and hold in trust for the benefit of the Persons entitled thereto) a sum sufficient to
pay such principal and interest when so becoming due. 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 shall
notify the Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of
Securityholders of any Series of Securities all money held by it as Paying Agent.
Section 2.6 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of 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, or cause the Registrar to furnish, to the Trustee at least five Business Day before each
interest payment date, but in any event not less frequently than semi-annually, 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.
Section 2.7 Exchange and Registration of Transfer.
The Company shall cause to be kept at the Corporate Trust Office the Register in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities of a Series and of transfers of Securities of such Series. The Register
shall be in written form or in any form capable of being converted into written form within a
reasonably prompt period of time.
Upon surrender for registration of transfer of any Security of a Series to the Registrar or
any co-registrar, and satisfaction of the requirements for such transfer set forth in this Section
2.8, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Security of the same Series of any authorized
denominations and of a like aggregate principal amount and bearing such restrictive legends as may
be required by this Indenture.
Securities of a Series may be exchanged for other Securities of the same Series of any
authorized denominations and of a like aggregate principal amount, upon surrender of the Securities
to be exchanged at any such office or agency maintained by the Company pursuant to Section 4.2.
Whenever any Securities of a Series are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities of the same Series that the Holder
making the exchange is entitled to receive bearing registration numbers not contemporaneously
outstanding.
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All Securities of a Series issued upon any registration of transfer or exchange of Securities
of the same Series shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities of the same Series
surrendered upon such registration of transfer or exchange.
All Securities of a Series presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Registrar) be duly endorsed, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the Company, and the
Securities of such Series shall be duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made to any holder for any registration of, transfer or exchange of
Securities, but the Company or the Trustee may require payment by the holder of a sum sufficient to
cover any tax, assessment or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of such Securities (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 Trustee nor any Registrar shall be required to exchange, issue or
register a transfer of (a) Securities of any Series for a period of fifteen calendar days next
preceding date of mailing of a notice of redemption of Securities of that Series selected for
redemption, or (b) Securities of any Series or portions thereof called for redemption, except for
the unredeemed portion of any Securities of that Series being redeemed in part.
Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities.
If a mutilated Security is surrendered to the Registrar or if the Securityholder of a Security
claims that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and
the Trustee shall authenticate a replacement Security of the same Series if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Securityholder (i) satisfies
the Company or the Trustee within a reasonable time after he has notice of such loss, destruction
or wrongful taking and the Registrar does not register a transfer prior to receiving such
notification, (ii) makes such request to the Company or the Trustee prior to the Security being
acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a
protected purchaser) and (iii) satisfies any other reasonable requirements of the Trustee. If
required by the Trustee or the Company, such Securityholder shall furnish an indemnity bond
sufficient in the judgment of the Trustee to protect the Company, the Trustee, the Paying Agent and
the Registrar from any loss that any of them may suffer if a Security is replaced. The Company and
the Trustee may charge the Securityholder for their expenses in replacing a Security. In case any
Security which has matured or is about to mature or has been called for redemption, shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of (without surrender thereof except in the case of a
mutilated Security), as the case may be, if the applicant for such payment or conversion shall
furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such
security or indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or in connection with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company, the Trustee and, if
applicable, any Paying Agent evidence to their satisfaction of the destruction, loss or theft of
such Securities and of the ownership thereof.
Every replacement Security of any Series issued pursuant to this Section is an additional
obligation of the Company.
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 Registered Global
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Security effected by the Trustee in accordance with the provisions hereof and those described
in this Section as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate holds the Security.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding unless the
Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a
protected purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds on the Maturity of Securities of a Series money sufficient to pay such Securities (or
portions thereof) payable on that date, and the Paying Agent is not prohibited from paying such
money to the Securityholders of such Series on that date pursuant to the terms of the Indenture,
then on and after that date such Securities of the Series (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
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 direction, waiver or consent, Securities of a Series owned by the Company,
any other obligor upon the Securities or an Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or consent only Securities
of a Series that the Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgees right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the
Company or any other obligor on the Securities. In case of a dispute as to such right, the advice
of counsel shall be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon written request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers Certificate listing and identifying all Securities, if any, known by the
Company to be owned or held by or for the account of any of the above-described persons; and,
subject to Sections 7.1 and 7.2, the Trustee shall be entitled to accept such Officers Certificate
as conclusive evidence of the facts therein set forth and of the fact that all Securities not
listed therein are outstanding for the purpose of any such determination.
Section 2.11 Temporary Securities.
Pending the preparation of Securities in certificated form, the Company may execute and the
Trustee or an authenticating agent appointed by the Trustee shall, upon a Company Order,
authenticate and deliver temporary Securities (printed, lithographed, typewritten, photocopied or
otherwise produced). Temporary Securities shall be issuable in any authorized denomination, and
substantially in the form of the Securities in certificated form, but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as may be determined
by the Company. Every such temporary Security shall be executed by the Company and authenticated
by the Trustee or such authenticating agent upon the same conditions and in substantially the same
manner, and with the same effect, as the Securities in certificated form. Without unreasonable
delay, the Company will execute and deliver to the Trustee or such authenticating agent Securities
of the same Series in certificated form and thereupon any or all temporary Securities may be
surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to
Section 4.7 and the Trustee or such authenticating agent shall authenticate and make available for
delivery in exchange for such temporary Securities an equal aggregate principal amount of
Securities of the same Series in certificated form. Such exchange shall be made by the Company at
its own expense and without any charge therefor. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits and subject to the same limitations under
this Indenture as Securities of the same Series in certificated form authenticated and delivered
hereunder.
Section 2.12 Cancellation.
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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 and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation
and dispose of such canceled Securities in accordance with its customary procedure. The Company
may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for
cancellation. The Trustee shall not authenticate Securities in place of canceled Securities other
than pursuant to the terms of this Indenture.
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 or cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail, cause to be mailed, or provide by means of electronic transmission to each
Securityholder of the Series a notice that states the special record date, the payment date and the
amount of defaulted interest to be paid. The Company may pay defaulted interest in any lawful
manner.
Section 2.14 Registered Global Securities.
2.14.1 Terms of Securities. A Board Resolution, a supplemental indenture hereto or an
Officers Certificate shall establish whether the Securities of a Series shall be issued in whole
or in part in the form of one or more Registered Global Securities and the Depositary for such
Registered 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 Registered 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
Registered 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 within 90 days of such event or (ii) the Company executes and delivers to the Trustee an
Officers Certificate to the effect that such Registered Global Security shall be so exchangeable.
Any Registered 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 Registered Global Security with
like tenor and terms.
Except as provided in this Section 2.14.2, a Registered Global Security may not be transferred
except as a whole by the Depositary with respect to such Registered 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 Legend. Any Registered Global Security issued hereunder shall bear a legend in
substantially the following form:
This Security is a Registered 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.
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 Registered Global Security shall be made to the Holder thereof.
2.14.6 Consents, Declaration and Directions. Except as provided in Section 2.14.5,
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 Registered Global Security as shall be
specified in a written statement of the Depositary with respect to such Registered Global Security,
for purposes of obtaining any consents, declarations, waivers or directions required to be given by
the Holders pursuant to this Indenture.
Section 2.15 Computation of Interest.
Except as otherwise specified pursuant to Section 2.2 for Securities of any Series, interest
on the Securities of each Series shall be computed on the basis of a 360-day year of twelve 30-day
months.
Section 2.16 CUSIP and ISIN Numbers.
The Company in issuing the Securities may use CUSIP and ISIN numbers (if then generally in
use), and, if so, the Trustee shall use CUSIP and ISIN 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. The Company shall promptly notify the Trustee in writing of any changes
to the CUSIP and ISIN numbers.
ARTICLE 3
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 to be redeemed. The Company shall give the notice at least 35
days before the redemption date (or such shorter notice as may be acceptable 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 or an Officers Certificate, if less than all the Securities of a Series are to be
redeemed, the Trustee shall select the Securities of the Series to be redeemed in any manner that
the Trustee deems fair and appropriate. The Trustee shall make the selection from Securities of the
Series outstanding not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities of the Series that have denominations larger than $1,000.
Securities of the Series and portions of them it selects 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 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 Officers Certificate, at least 30 days but not more than 60 days before a
redemption date, the Company shall provide a notice of redemption by electronic transmission or
first-class mail to each Holder whose Securities
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are to be redeemed and if any Bearer Securities are outstanding, publish on one occasion a
notice in an Authorized Newspaper.
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 less than all Securities of any Series are to be redeemed, the identification
of the particular Securities to be redeemed and the portion of the principal amount of any
Security to be redeemed in part;
(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; and
(g) any other information as may be required by the terms of the particular Series or
the Securities of a Series being redeemed.
At
the Companys written request, which request shall be provided
at least 10 days prior to desired electronic transmission or first-class mailing of the notice of redemption,
the Trustee shall give the notice of redemption in the
Companys name and at the Companys expense and provided that the form and content of such notice
shall be prepared by the Company.
Section 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed or published 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. 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 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 4
COVENANTS
Section 4.1 Payment of Principal and Interest.
The Company shall 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.
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Section 4.2 SEC Reports.
The Company shall deliver (which delivery may be via electronic mail) to the Trustee within 15
days after the filing by the Company 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).
Section 4.3 Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company, a brief certificate from the principal executive officer, principal financial officer,
principal accounting officer or vice president or treasurer as to his or her knowledge of the
Companys compliance with all conditions and covenants under this Indenture (which compliance shall
be determined without regard to any period of grace or requirement of notice provided under this
Indenture) and, in the event of any Default, specifying each such Default and the nature and status
thereof of which such Person may have knowledge. Such certificates need not comply with Section
11.5 of this Indenture.
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.
Section 4.5 Corporate Existence.
Subject to Article V, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and the rights (charter and statutory),
licenses and franchises of the Company; provided, however, that the Company shall not be required
to preserve any such right, license or franchise, if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect
to the Holders.
Section 4.6 Maintenance of Office or Agency.
The Company will maintain an office or agency in The City of New
York, where the Securities of a Series may be surrendered for registration of transfer or exchange
or for presentation for payment and where notices and demands to or upon the Company in respect of
the Securities of a Series and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency not
designated or appointed by the Trustee. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office.
The Company may also from time to time designate co-registrars and one or more offices or
agencies where the Securities of a Series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in the location of
any such other office or agency.
Section 4.7 Money For Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to the Securities of
any Series, it shall, on or before each due date of the principal of and premium, if any, and
interest, if any, on any of
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such Securities, segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and premium or interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided. The Company shall promptly
notify the Trustee of any failure by the Company (or any other obligor of such Securities) to make
any payment of principal of or premium, if any, or interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the Securities of any Series, it
shall, on or before each due date of the principal of and premium, if any, and interest, if any, on
such Securities, deposit with such Paying Agents sums sufficient (without duplication) to pay the
principal and premium or interest so becoming due, such sums to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of any Series, other than the
Company or the Trustee, to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying
Agent shall:
(a) hold all sums held by it for the payment of the principal of and premium, if any,
or interest, if any, on such Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(b) give the Trustee notice of any failure by the Company (or any other obligor upon
such Securities) to make any payment of principal of or premium, if any, or interest, if
any, on such Securities; and
(c) at any time during the continuance of any such failure, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent
and furnish to the Trustee such information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying
Agent and, if so stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article 8; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of and premium, if any, or interest, if any, on any Security
and remaining unclaimed for two years after such principal and premium, if any, or interest, if
any, has become due and payable shall be paid to the Company on request of the Company, or, if then
held by the Company, shall be discharged from such trust; and, upon such payment or discharge, the
Holder of such Security shall, as an unsecured general creditor and not as the Holder of an
outstanding Security, look only to the Company for payment of the amount so due and payable and
remaining unpaid, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to be published once a week for two successive
weeks, in each case on any day of the week, in an Authorized Newspaper in each Place of Payment,
notice that such money remains unclaimed and that, after a date specified therein, which shall not
be less than 30 days from the date of such publication, any unclaimed balance of such money then
remaining will be paid to the Company.
Section 4.8 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 2.2 for Securities of such Series,
the Company may, with respect to the Securities of any Series, omit in any particular instance to
comply with any term,
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provision or condition set forth in any covenant provided herein or pursuant to Section 2.2.19
or Section 9.1(c) for the benefit of the Holders of such Series if before the time for such
compliance the Holders of at least 50% in principal amount of the outstanding Securities of such
Series shall, by an Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such wavier shall extend to or
affect such term, provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of the Trustee in
respect of such term, provision or condition shall remain in full force and effect.
ARTICLE 5
SUCCESSORS
Section 5.1 When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or convey, transfer or lease all or
substantially all of its properties and assets to, any Person (a successor person), and may not
permit any Person to merge into, or convey, transfer or lease its properties and assets
substantially as an entirety to, the Company, unless:
(a) either the Company shall be the continuing corporation or the successor person (if
other than the Company) is a corporation, partnership, trust or other entity organized and
validly existing under the laws of the United States of America, any State thereof or the
District of Columbia and expressly assumes the Companys 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.
The Company shall deliver to the Trustee prior to the consummation of the proposed transaction
an Officers Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with this Indenture.
Section 5.2 Successor Corporation Substituted.
The successor person formed by such consolidation or into which the Company is merged or to
which such transfer or lease is made shall succeed to and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect as if such
successor person had been named as the Company herein, and thereafter (except in the case of a
lease to another Person) the predecessor corporation shall be relieved of all obligations and
covenants under the Indenture and the Securities and, in the event of such conveyance or transfer,
any such predecessor corporation may be dissolved and liquidated.
ARTICLE 6
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
Officers Certificate, it is provided that such Series shall not have the benefit of said Event of
Default:
(a) 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 the expiration of such period of 30 days); provided that, a valid
extension of an interest payment period by the Company in accordance with the terms of such
Securities shall not constitute a failure to pay interest; or
(b) a default in the payment of the principal of, or premium, if any, on, any Security
of that Series when due at its Maturity; or
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(c) a default in the deposit of any sinking fund payment, when and as due in respect
of any Security of that Series; or
(d) a default, subject to the provisions in Section 4.8, in the performance or breach
of any covenant or warranty of the Company in this Indenture (other than 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 90 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 specifying such default or breach
and requiring it to be remedied and stating that such notice is a Notice of Default
hereunder; or
(e) 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
(f) 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 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
(g) 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 Officers
Certificate, in accordance with Section 2.2.19.
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.
Section 6.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in Section 6.1(a), (b) or (c) occurs and is continuing, then,
and in each and every such case, except for any series of Securities the principal of which shall
have already become due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of each such affected series then outstanding
hereunder (each such series voting as a separate class) by notice in writing to the Company (and to
the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities
of such series are Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) of all Securities of such series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration, the same shall become
immediately due and payable.
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Except as otherwise provided in the terms of any series of Senior Securities pursuant to
Section 2.2, if an Event of Default described in Section 6.1(d) or (g) above with respect to all
series of the Senior Securities then outstanding, occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Senior Securities shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount
of all of the Senior Securities then outstanding hereunder (treated as one class) by notice in
writing to the Company (and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Senior Securities of any series are Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all of the Senior Securities
then outstanding, and the interest accrued thereon, if any, to be due and payable immediately, and
upon such declaration, the same shall become immediately due and payable. If an Event of Default
described in clause (e) or (f) above occurs and is continuing, then the principal amount of all the
Senior Securities then outstanding, and the interest accrued thereon, if any, shall become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any
Holder.
Except as otherwise provided in the terms of any series of Subordinated Securities pursuant to
Section 2.2, if an Event of Default described in Section 6.1 (d) or (g) above with respect to all
series of Subordinated Securities then outstanding, occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Subordinated Securities shall have already
become due and payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all of the Subordinated Securities then outstanding hereunder (treated as one
class) by notice in writing to the Company (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Subordinated Securities of any series are Discount
Securities, such portion of the principal amount as may be specified in the terms of such series)
of all of the Subordinated Securities then outstanding, and the interest accrued thereon, if any,
to be due and payable immediately, and upon such declaration, the same shall become immediately due
and payable.
If an Event of Default described in Section 6.1 (d) or (g) occurs and is continuing, which
Event of Default is with respect to less than all series of Senior Securities then outstanding,
then, and in each and every such case, except for any series of Senior Securities the principal of
which shall have already become due and payable, either the Trustee or the Holders of not less than
25% in aggregate principal amount of the Senior Securities of each such affected series then
outstanding hereunder (each such series voting as a separate class) by notice in writing to the
Company (and to the Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of such series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all Securities of such series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration,
the same shall become immediately due and payable.
If an Event of Default described in Section 6.1(d) or (g) occurs and is continuing, which
Event of Default is with respect to less than all series of Subordinated Securities then
outstanding, then, and in each and every such case, except for any series of Subordinated
Securities the principal of which shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the Subordinated Securities of
each such affected series then outstanding hereunder (each such series voting as a separate class)
by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare
the entire principal (or, if the Securities of such series are Discount Securities, such portion of
the principal amount as may be specified in the terms of such series) of all Securities of such
series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any
such declaration, the same shall become immediately due and payable.
If an Event of Default specified in Section 6.1(e) or (f) 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:
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(i) all overdue interest, if any, on all Securities of that Series,
20
(ii) the principal of any Securities of that Series which have become due
otherwise than by such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities,
(iii) to the extent that payment of such interest is lawful, interest upon any
overdue principal and overdue interest at the rate or rates prescribed therefor in
such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel;
and
(b) all Events of Default with respect to Securities of that Series, other than the
non-payment of the principal 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 when due at the
Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment 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 or 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 reasonable compensation, 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 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
21
(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 reasonable compensation, 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 reasonable compensation, 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 Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, 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 collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal 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 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
22
(a) such Holder has previously given written notice to the Trustee of an Event of
Default and the continuance thereof 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 reasonable security or
indemnity satisfactory to the Trustee against the expenses and liabilities to be incurred
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;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other 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.
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 Stated Maturity or Stated Maturities 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
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 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
23
to the Holders may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
Section 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, and
(c) subject to the provisions of Section 6.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a Trust Officer
of the Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability.
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 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 Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption date).
ARTICLE 7
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 Persons own affairs.
(b) Except during the continuance of an Event of Default:
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(i) the Trustee need perform only those duties that are specifically set forth
in this Indenture and no other implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(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 certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; however, the Trustee shall examine
such certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(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 by a Trust Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or
omits to take 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.
(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 shall not be liable for interest on any money received by it.
(f) 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 expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk
is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the provisions of
this Section and to the provisions of the TIA.
Section 7.2 Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers
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 the Officers 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.
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(d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers.
(e) The Trustee may consult with counsel, and the advice or opinion of counsel with
respect to legal matters relating to this Indenture and the Securities shall be full and
complete authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, debenture, note 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.
(g) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders pursuant to the provisions of this Indenture, unless such Securityholders
shall have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby.
(h) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its rights to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
(i) The Trustee may request that the Company deliver an Officers Certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers Certificate may be signed by
any person authorized to sign an Officers Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded.
(j) The permissive rights of the Trustee enumerated herein shall not be construed as
duties.
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 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 Trustees Disclaimer.
The Trustee shall not be responsible and makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for the Companys use of
the proceeds from the Securities, and it shall not be responsible for any statement in the
Securities or in any document issued in connection with the sale of the Securities or in the
Securities other than its certificate of authentication.
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 known to a Trust Officer of the Trustee, the Trustee shall provide notice of such Default or Event of Default by electronic transmission or first-class mail to each
Securityholder of the Securities of that Series and, if any Bearer Securities are outstanding,
publish on one occasion in an Authorized Newspaper, notice of a Default or Event of Default within
90 days after it occurs or 30 days after it is known to a Trust Officer or written notice of it is
received by the Trustee. Except in the case of a Default or Event of Default in payment of
principal, premium, if any, of or interest on any Security of any Series or in payment of any
redemption obligation, the Trustee may withhold the notice if and so long as its corporate trust
committee or a committee of its Trust Officers in good faith determines that withholding the notice
is in the interests of Securityholders of that Series.
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Section 7.6 Reports by Trustee to Holders.
As promptly as practicable after each May 15 beginning with May 15, 2012, and in any event
prior to July 15 in each year, the Trustee shall transmit by electronic transmission or first-class mail to all Securityholders, as their
names and addresses appear on the register kept by the Registrar and, if any Bearer Securities are
outstanding, publish in an Authorized Newspaper, a brief report dated as of May 15, each year as
and if required by TIA § 313(a) if and to the extent required by such subsection. The Trustee
shall also comply with TIA § 313(b) and TIA § 313(c).
A copy of each report at the time of its electronic transmission or mailing to Securityholders of any Series shall be
filed with the SEC and each stock exchange (if any) on which the Securities of that Series are
listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on
any stock exchange and of any delisting thereof.
Section 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such compensation as the Company and
the Trustee shall from time to time agree in writing. The Trustees 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 or made by it,
including costs of collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and advances of the Trustees
agents, counsel, accountants and experts. The Company shall indemnify the Trustee, and hold it
harmless, against any and all loss, liability or expense (including reasonable attorneys fees)
incurred by or in connection with the offer and sale of the Securities or the administration of
this trust and the performance of its duties hereunder. The Trustee shall notify the Company of
any claim for which it may seek indemnity promptly upon obtaining actual knowledge thereof;
provided, however, that any failure so to notify the Company shall not relieve the Company of its
indemnity obligations hereunder. The Company shall defend the claim and the indemnified party
shall provide reasonable cooperation at the Companys expense in the defense. Such indemnified
parties may have separate counsel and the Company shall pay the fees and expenses of such counsel;
provided, however, that the Company shall not be required to pay such fees and expenses if it
assumes such indemnified parties defense and, in such indemnified parties reasonable judgment,
there is no conflict of interest between the Company and such parties in connection with such
defense. The Company need not reimburse any expense or indemnify against any loss, liability or
expense incurred by an indemnified party through such partys own willful misconduct and
negligence.
To secure the Companys 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
other than money or property held in trust to pay principal of and interest and any liquidated
damages on particular Securities of that Series.
The Companys payment obligations pursuant to this Section shall survive the satisfaction or
discharge of this Indenture, any rejection or termination of this Indenture under any bankruptcy
law or the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(f) or (g) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee.
The Trustee may resign with respect to the Securities of one or more Series at any time by so
notifying the Company. The Holders of a majority in principal amount of the Securities of any
Series may remove the Trustee with respect to that Series by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee with respect to Securities of
one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
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(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal
amount of the Securities of any Series and such Securityholders do not reasonably promptly appoint
a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in
such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon 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. The successor Trustee shall mail or otherwise provide by electronic transmission a notice of its succession to each Securityholder of
each such Series and, if any Bearer Securities are outstanding, publish such notice on one occasion
in an Authorized Newspaper. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in Section 7.7.
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 or the
Holders of 10% in principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to the Securities of any one or more Series fails to comply with
Section 7.10, any Securityholder of the applicable Series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section, the Companys
obligations under Section 7.7 shall continue for the benefit of the retiring 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 or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be the successor
Trustee.
In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee with respect to the Securities of any one or more Series shall succeed to the trusts
created by this Indenture any of the Securities of the applicable Series shall have been
authenticated but not delivered, any such successor to such Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities of the applicable Series so
authenticated; and in case at that time any of the Securities of such Securities shall not have
been authenticated, any successor to the Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the Securities of such
Series or in this Indenture provided that the certificate of the Trustee shall have.
Section 7.10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA § 310(a). The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA § 310(b); provided,
however, that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such exclusion set forth in TIA §
310(b)(1) are met.
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Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with 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 8
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1 Satisfaction and Discharge of Indenture.
This Indenture, with respect to Securities of any Series (if all Series issued under this
Indenture are not to be effected) shall, upon Company Order, cease to be of further effect (except
as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities of such Series theretofore authenticated and delivered
(other than (A) Securities that have been destroyed, lost or stolen and that have
been replaced or paid or (B) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Sections 2.5 and
4.7) have been delivered to the Trustee for cancellation; or
(ii) all such Securities of such Series not theretofore delivered to the
Trustee for cancellation:
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity within
one year, or
(3) 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, has deposited or caused to be deposited with
the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging
the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on, and any mandatory sinking fund
payments to the date of such deposit (in the case of Securities of such Series which have become
due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption
date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(c) the Company has delivered to the Trustee an Officers Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
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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, 4.7 (last
paragraph only), 8.1, 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 deposited with the Trustee
pursuant to Section 8.1, all money and U.S. Government Obligations or Foreign Government
Obligations deposited with the Trustee pursuant to Section 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 8.3 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 make mandatory sinking fund payments or
analogous payments as contemplated by Sections 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 8.3 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
Request 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 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 2.2.24, 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 such 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, at Company Request, execute proper 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 Stated Maturity of such principal or installment of principal or interest and (ii) the
benefit of any mandatory sinking fund payments applicable to the Securities of such Series
on the day on which such payments are due and payable in accordance with the terms of this
Indenture and the Securities of such Series;
(b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and
(c) the rights, powers, trust and immunities of the Trustee hereunder;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited irrevocably with the
Trustee as trust funds in trust for the purpose of making the following payments,
specifically pledged as
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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 (or such
other money or currencies as shall then be legal tender in the United States) 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 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, if any, on all
the Securities of such Series on the dates such installments of interest or principal 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 Officers Certificate and an
Opinion of Counsel from a nationally recognized law firm 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 Officers Certificate stating
that the deposit was not made by the Company with the intent of preferring the Holders of
the Securities of such Series over any other creditors of the company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising from such deposit constituting
an investment company (as defined in the Investment Company Act of 1940, as amended), or
such trust shall be qualified under such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating to the
defeasance contemplated by this Section 8.3 have been complied with.
Section 8.4 Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to Section 2.2.24 to be inapplicable
to Securities of any Series, on and after the date of the deposit referred to in subparagraph (a)
hereof, the Company may omit to comply with any term, provision or condition set forth under
Sections 4.2, 4.3, 4.4, 4.5 and 5.1 as well as any additional covenants contained in a supplemental
indenture hereto for a particular Series of Securities or a Board Resolution or an Officers
Certificate delivered pursuant to Section 2.2.24 (and the failure to comply with any such covenants
shall not constitute a Default or Event of Default under Section 6.1) and the occurrence of any
event described in clause (e) of Section 6.1 shall not constitute a Default or Event of Default
hereunder, with respect to the Securities of such Series, provided that the following conditions
shall have been satisfied:
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(a) with reference to this Section 8.4, the Company has deposited or caused to be
irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds in trust, 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 (or such other money or currencies as shall then be legal
tender in the United States) 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 expressed in a written certification thereof delivered to the Trustee, to pay
principal and interest, if any, on and any mandatory sinking fund in respect of the
Securities of such Series on the dates such installments of interest or principal 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 Opinion of Counsel from a
nationally recognized law firm confirming that Holders of the Securities of such Series
will not recognize income, gain or loss for federal income tax purposes as a result of such
deposit and defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such deposit and
defeasance had not occurred;
(e) the Company shall have delivered to the Trustee an Officers Certificate stating
the deposit was not made by the Company with the intent of preferring the Holders of the
Securities of such Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) the Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided for relating
to the defeasance contemplated by this Section 8.4 have been complied with.
Section 8.5 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company (or its designee) upon
Company Order any excess moneys or U.S. Government Obligations held by them at any time. The
provisions of the last paragraph of Section 4.7 shall apply to any money held by the Trustee or any
Paying Agent that remains unclaimed for two years after the Maturity of any Series or Securities
for which money or U.S. Government Obligations have been deposited pursuant to Sections 8.3 and
8.4.
Section 8.6 Effect of Subordination Provisions.
Unless otherwise expressly established pursuant to Section 2.2 with respect to the
Subordinated Securities of any Series, the provisions of Article 10 hereof, insofar as they pertain
to the Subordinated Securities of such series, and the Subordination Provisions established
pursuant to Section 2.2.9 with respect to such Series, are hereby expressly made subject to the
provisions for satisfaction and discharge and defeasance and covenant defeasance set for this
Article 8 and, anything herein to the contrary notwithstanding, upon the effectiveness of such
satisfaction and discharge and defeasance and covenant defeasance pursuant to this Article 8 with
respect to the Securities of such Series, such Securities shall thereupon cease to be so
subordinated and shall no longer be subject to the provisions of Article 10 or the Subordination
Provisions established pursuant to Section 2.2.9 with respect to such series and, without
limitation to the foregoing, all moneys, U.S. Government Obligations and other securities or
32
property deposited with the Trustee (or other qualifying trustee) in trust in connection with
such satisfaction and discharge, defeasance or covenant defeasance, as the case may be, and all
proceeds therefrom may be applied to pay the principal of, premium, if any, on, and mandatory
sinking fund payments, if any with respect to the Securities of such Series as and when the same
shall become due and payable notwithstanding the provisions of Article 10 or such Subordination
Provisions.
ARTICLE 9
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 convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more Series any property or assets;
(b) to comply with Article V;
(c) to add to the covenants of the Company such further covenants, restrictions,
conditions or provisions as the Company and the Trustee shall consider to be for the
protection of the Holders of Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, that in respect of any
such additional covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies available to the
Trustee upon such an Event of Default or may limit the right of the Holders of a majority
in aggregate principal amount of the Securities of such series to waive such an Event of
Default;
(d) add a guarantor or permit any Person to guarantee the obligations under any Series
of Securities;
(e) to cure any ambiguity, defect or inconsistency;
(f) to provide for the issuance of and establish the form and terms and conditions of
Securities of any Series as permitted by this Indenture;
(g) 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;
(h) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(i) to make any change that does not materially adversely affect the rights of any
Securityholder; and
(j) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA.
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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 each Series affected by such waiver 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 mail or provide by electronic transmission to the Holders of Securities affected
thereby and, if any Bearer Securities affected thereby are outstanding, publish on one occasion in
an Authorized Newspaper, a notice briefly describing the supplemental indenture or waiver. Any
failure by the Company to mail or publish 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) extend the final maturity of any Security;
(b) reduce the principal amount thereof, or premium thereon, if any;
(c) reduce the rate or extend the time of payment of interest thereon,
(d) reduce any amount payable on redemption thereof;
(e) make the principal thereof (including any amount in respect of original issue
discount), or premium thereon, if any, or interest thereon payable in any coin or currency
other than that provided in the Securities or in accordance with the terms thereof;
(f) reduce the amount of the principal of a Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section 6.2 or the amount
thereof provable in bankruptcy pursuant to Section 6.4;
(g) in the case of Subordinated Securities of any series, modify any of the
Subordination Provisions or the definition of Senior Indebtedness relating to such series
in a manner adverse to the holders of such Subordinated Securities;
(h) alter the provisions of Section 11.15 or 11.16;
(i) impair or affect the right of any Securityholder to institute suit for the payment
thereof when due or, if the Securities provide therefor, any right of repayment at the
option of the Securityholder;
(j) reduce the aforesaid percentage of Securities of any Series, the consent of the
Holders of which is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) provided for in this Indenture; or
(k) modify any provision of this Section 9.3.
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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 or waiver becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holders 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 the amendment or 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 (g) 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 Holders Security.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Securityholders 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 immediately preceding paragraph, those Persons who were Securityholders 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 to take any such action, whether or
not such Persons continue to be Securityholders after such record date.
Section 9.6 Notation on or Exchange of Securities.
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 written request new Securities of that Series that
reflect the amendment or waiver.
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 Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures,
except that the Trustee need not sign any supplemental indenture that adversely affects its rights.
ARTICLE 10
SUBORDINATION OF SECURITIES
Section 10.1 Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and agrees, and each Holder of
Subordinated Securities of any Series by his acceptance thereof, likewise covenants and agrees,
that the payment of the principal of (and premium, if any) and interest, if any, on, and mandatory
sinking fund payments, if any, in respect of each and all of the Subordinated Securities of such
series shall be expressly subordinated, to the extent and in the manner provided in the
Subordination Provisions established with respect to the Subordinated Securities of such Series
pursuant to Section 2.2.9 hereof, in right of payment to the prior payment in full of all Senior
Debt with respect to such Series.
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ARTICLE 11
MISCELLANEOUS
Section 11.1 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 11.2 Notices.
Any notice or communication by the Company or the Trustee to the other hereunder is duly given if in
writing and delivered in person or mailed by overnight courier:
if to the Company:
Brookdale Senior Living Inc.
111 Westwood Place, Suite 400
Brentwood, Tennessee 37027
Attention: General Counsel
if to the Trustee:
American Stock Transfer & Trust Company, LLC
6201 15th Avenue
Brooklyn, NY 11219
Attention: General Counsel
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 provided by electronic transmission
or by first-class mail to his address shown on the register kept by the Registrar and, if any
Bearer Securities are outstanding, published in an Authorized Newspaper. Failure to provide 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 provided 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 provides a notice or communication to Securityholders, it shall provide a copy
to the Trustee and each Agent at the same time.
In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice by the Company when such notice is required to be given pursuant to
any provision of this Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
Section 11.3 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).
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Section 11.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain from taking
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers Certificate in form and substance reasonably satisfactory to the
Trustee 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
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have been
complied with.
Section 11.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture 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 individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
Section 11.6 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 11.7 Legal Holidays.
Unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture
for a particular Series, a Legal Holiday is a Saturday, Sunday or a day on which banking
institutions in the city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, are not required by any applicable law or regulation to
be open, and no interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
Section 11.8 No Recourse Against Others.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture,
or in any Security, or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder, officer or director, as
such, of the Company or of any successor, either directly or through the Company or any successor,
under any rule of law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and
released by the acceptance of the Securities and the coupons, if any, appertaining thereto by the
Holders thereof and as part of the consideration for the issue of the Securities and the coupons,
if any, appertaining thereto.
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Section 11.9 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.
Section 11.10 Governing Laws; Waiver of Jury Trial.
THIS INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE
OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SUCH STATE, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
EACH OF THE COMPANY 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 NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 11.11 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. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 11.12 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 11.13 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 11.14 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 11.15 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers 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 are
outstanding Securities of any Series which are denominated in a coin or currency other than Dollars
(including ECUs), 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 that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section
11.15, Market Exchange Rate shall mean the noon Dollar buying rate in New York City for cable
transfers of that currency as published by the Federal Reserve Bank of New York; provided, however,
in the case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Union (or any successor thereto) as published in the Official Journal of
the European Union (such publication or any successor publication, the Journal). If such Market
Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the Federal Reserve
Bank
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of New York or, in the case of ECUs, the rate of exchange as published in the Journal, as of
the most recent available date, or quotations or, in the case of ECUs, rates of exchange from one
or more major banks in The City of New York or in the country of issue of the currency in question
or, in the case of ECUs, in Luxembourg or such other quotations or, in the case of ECUs, rates of
exchange as the Trustee, upon consultation with the Company, shall deem appropriate. 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 of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Company and all Holders.
Section 11.16 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.
Section 11.17 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all Series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such
specified percentage of Securityholders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes referred to as
the ACT of the Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Sections 7.1 and 7.2)
conclusive in favor of the Trustee and the Company, if made in the manner provided in this
Section 11.17.
(b) Subject to Sections 7.1 and 7.2, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The holding of Registered Securities shall be proved by the
Security register or by a certificate of the registrar thereof.
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(c) The Company, the Trustee and any agent of the Company or the Trustee may deem and
treat the person in whose name any Security shall be registered upon the Security register
for such series as the absolute owner of such Security (whether or not such Security shall
be overdue and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject to the
provisions of this Indenture, interest on such Security and for all other purposes; and
neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security as the absolute owner of
such Bearer Security (whether or not such Bearer Security shall be overdue) for the purpose
of receiving payment thereof or on account thereof and for all other purposes, and neither
the Company, the Trustee, nor any agent of the Company or the Trustee shall be affected by
any notice to the contrary. All such payments so made to any such person, or upon his
order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy
and discharge the liability for moneys payable upon any such Bearer Security.
(d) At any time prior to (but not after) the evidencing to the Trustee, as provided in
this Section 11.17, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial numbers of
the Securities the Holders of which have consented to such action may, by filing written
notice at the Corporate Trust Office and upon proof of holding as provided in this Article,
revoke such action so far as concerns such Security. Except as aforesaid, any such action
taken by the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security. Any action
taken by the Holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the Holders of all
the Securities affected by such action.
ARTICLE 12
SINKING FUNDS
Section 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
the Securities of a Series, 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 12.2. 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 12.2 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 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 Officers Certificate with respect thereto, not
later than 15 days prior to the date on which the Trustee begins the
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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 12.2, 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 12.3 Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental
indenture hereto or Officers 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 Officers 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 12.2, 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, Officers Certificate or supplemental
indenture in respect of a particular Series of Securities) before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section 3.3. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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BROOKDALE SENIOR LIVING INC. |
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/s/ T. Andrew Smith |
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Name:
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T. Andrew Smith
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Its: |
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EVP |
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AMERICAN STOCK TRANSFER
& TRUST COMPANY, LLC, as Trustee |
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By: |
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/s/ David H. Brill |
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Name:
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David H. Brill
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General Counsel and Secretary |
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