As filed with the Securities and Exchange Commission on
December 14, 2009
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Certain co-registrants are identified in the Table of
Additional Registrants listed on the next page.
(Exact name of registrant as
specified in its charter)
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Delaware
(State or other jurisdiction
of
incorporation or organization)
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5301 Legacy Drive
Plano, Texas 75024
(972) 673-7000
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98-0517725
(I.R.S. Employer
Identification No.)
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(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
James L. Baldwin, Jr.
Executive Vice President and General Counsel
Dr Pepper Snapple Group, Inc.
5301 Legacy Drive
Plano, Texas 75024
(972) 673-7000
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
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Neel Lemon
Craig Adams
Baker Botts L.L.P.
2001 Ross Avenue
Dallas, Texas 75201
(214) 953-6500
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Edward S. Best
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606
(312) 782-0600
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Approximate date of commencement of proposed sale to the
public:
From time to time after the effective
date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, as amended (the
Securities Act), other than securities offered only
in connection with dividend or interest reinvestment plans,
check the following
box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2
of the
Exchange Act. (Check one):
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Large
accelerated
filer
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Accelerated
filer
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Non-accelerated
filer
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Smaller reporting
company
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(Do not check if a smaller
reporting company)
CALCULATION
OF REGISTRATION FEE
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Amount to be Registered/Proposed
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Maximum Offering Price per
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Title of Each Class of
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Unit/Proposed Maximum Aggregate
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Securities to be Registered
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Offering Price/Amount of Registration Fee(1)(2)
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Common Stock, par value $0.01 per share
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Preferred Stock, par value $0.01 per share
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Debt Securities
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Guarantees of Debt Securities(3)
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Warrants
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(1)
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There is being registered hereunder such indeterminate number or
amount of common stock, preferred stock, debt securities and
warrants of Dr Pepper Snapple Group, Inc. as may from time to
time be issued at indeterminate prices and as may be issued upon
conversion, redemption, exchange, exercise or settlement of any
securities registered hereunder, including under any applicable
antidilution provisions.
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(2)
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In reliance on Rule 456(b) and Rule 457(r) under the
Securities Act, the Registrant hereby defers payment of the
registration fee required in connection with this Registration
Statement. Accordingly, no filing fee is paid herewith.
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(3)
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The guarantees of debt securities will be issued by one or more
of the registrants identified in the Table of Additional
Registrants on the next page and will be issued without
additional consideration. Pursuant to Rule 457(n) under the
Securities Act, no registration fee is payable with respect to
any such guarantees.
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TABLE OF
ADDITIONAL REGISTRANTS
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State or Other
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Jurisdiction of
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Incorporation or
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I.R.S. Employer
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Exact Name of Registrant as Specified in its Charter
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Organization
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Identification No.
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234DP Aviation, LLC(1)
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Delaware
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27-1028433
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A&W Concentrate Company(1)
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Delaware
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22-2483659
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Americas Beverages Management GP(1)
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Nevada
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74-3218345
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AmTrans, Inc.(2)
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Illinois
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36-2682881
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Berkeley Square U.S., Inc.(1)
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Delaware
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74-3257868
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Beverage Investments LLC(1)
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Delaware
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74-3218356
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Beverages Delaware Inc.(1)
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Delaware
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51-0345374
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DP Beverages Inc.(1)
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Delaware
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04-2492250
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DPS Americas Beverages Investments, Inc.(1)
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Delaware
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98-0517785
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DPS Americas Beverages, LLC(1)
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Delaware
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N/A
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DPS Beverages, Inc.(1)
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Delaware
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55-0883062
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DPS Business Services, Inc.(1)
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Delaware
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06-1414002
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DPS Finance II, Inc.(1)
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Delaware
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30-0159342
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DPS Holdings Inc.(1)
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Delaware
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06-1074905
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DPS Holdings U.S.(1)
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Nevada
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06-1076995
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Dr Pepper Company(1)
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Delaware
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75-2495144
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Dr
Pepper/Seven-Up
Beverage Sales Company(1)
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Texas
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75-1554102
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Dr Pepper/Seven Up Manufacturing Company(3)
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Delaware
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74-2690781
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Dr Pepper/Seven Up, Inc.(1)
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Delaware
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75-2233365
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High Ridge Investments US, Inc.(1)
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Delaware
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74-3257869
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International Beverage Investments GP(1)
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Delaware
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74-3218364
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International Investments Management LLC(1)
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Delaware
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N/A
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Motts General Partnership(1)
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Nevada
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26-2092489
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Motts LLP(1)
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Delaware
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90-0237006
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MSSI LLC(1)
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Delaware
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77-0667192
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Nantucket Allserve, Inc.(1)
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Massachusetts
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04-3093808
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Nuthatch Trading US, Inc.(1)
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Delaware
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42-1762066
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Pacific Snapple Distributors, Inc.(1)
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California
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33-0390611
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Royal Crown Company, Inc.(1)
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Delaware
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58-1316061
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Snapple Beverage Corp.(1)
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Delaware
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04-3149065
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Snapple Distributors, Inc.(1)
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Delaware
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11-3199405
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Splash Transport, Inc.(1)
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Delaware
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26-2366378
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The American Bottling Company(1)
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Delaware
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36-4223626
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(1)
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Registrants address is 5301 Legacy Dr., Plano, TX 75024.
Telephone:
972-673-7000.
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(2)
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Registrants address is 400 N. Wolf Road,
Northlake, IL 60164. Telephone:
708-449-2600.
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(3)
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Registrants address is 8900 Page Ave.,
St. Louis, MO 63114. Telephone:
314-426-8200.
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PROSPECTUS
Common Stock
Preferred Stock
Debt Securities
Guarantees of Debt
Securities
Warrants
We may offer from time to time common stock, preferred stock,
debt securities and warrants. Certain of our subsidiaries may
guarantee the debt securities offered under this prospectus.
Specific terms of these securities will be provided in one or
more supplements to this prospectus. You should read this
prospectus and any supplement carefully before you invest. No
person may use this prospectus to offer and sell our securities
unless a prospectus supplement accompanies this prospectus.
Our common stock is listed on the New York Stock Exchange under
the ticker symbol DPS.
We may offer and sell the securities to or through one or more
underwriters, dealers or agents, or directly to purchasers, on a
continued or delayed basis. The names of any underwriters,
dealers or agents and the terms of the arrangements with such
entities will be stated in the applicable prospectus supplement.
Investing in these securities involves certain risks. Please
read carefully the information included and incorporated by
reference in this prospectus for a discussion of the factors you
should carefully consider before deciding to purchase these
securities, including the discussion of risks incorporated as
described under Risk Factors on page 4 of this
prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined whether this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is December 14, 2009.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission
(SEC).
We have not authorized anyone to give any information or to
make any representations concerning the securities offered
hereunder except those which are in this prospectus, any
prospectus supplement that is delivered with this prospectus or
any documents incorporated by reference into this prospectus. If
anyone gives any other information or representation, you should
not rely on it. This prospectus is not an offer to sell or a
solicitation of an offer to buy these securities in any
circumstances in which the offer or solicitation is unlawful.
You should not interpret the delivery of this prospectus, or any
offer or sale of these securities, as an indication that there
has been no change in our affairs since the date of this
prospectus.
Neither this prospectus nor any accompanying prospectus
supplement contains all of the information included in the
registration statement. We have omitted parts of the
registration statement as permitted by the SECs rules and
regulations. For further information, we refer you to the
registration statement on
Form S-3
we filed with the SEC on December 14, 2009, which can be
read at the SEC web site or at the SEC office referenced under
the heading
Where You Can Find More
Information.
The registration statement also includes
exhibits. Statements contained in this prospectus, any
prospectus supplement or that are incorporated by reference into
this prospectus or a prospectus supplement, about the provisions
or contents of any agreement or other document are not
necessarily complete. If SEC rules and regulations require that
any agreement or document be filed as an exhibit to the
registration statement and we file the agreement or document,
you should refer to that agreement or document for a complete
description of these matters.
You should read both this prospectus and any prospectus
supplement together with the additional information under the
heading
Incorporation of Certain Information by
Reference
herein.
As used in this prospectus, unless otherwise indicated,
DPS, our company, we,
us and our refer to Dr Pepper Snapple
Group, Inc. and its consolidated subsidiaries, except in each
case where otherwise indicated or the context otherwise requires.
ABOUT DR
PEPPER SNAPPLE GROUP, INC.
Dr Pepper Snapple Group, Inc. is a leading integrated brand
owner, manufacturer and distributor of non-alcoholic beverages
in the United States, Canada and Mexico, with a diverse
portfolio of flavored (non-cola) carbonated soft drinks
(CSD) and non-carbonated beverages
(NCB), including
ready-to-drink
teas, juices, juice drinks and mixers. Our brand portfolio
includes popular CSD brands such as Dr Pepper, 7UP, Sunkist
soda, A&W, Canada Dry, Crush, Schweppes, Squirt, RC, Diet
Rite, Sundrop, Welchs, Vernors, Country Time and
Peñafiel, and NCB brands such as Snapple, Motts,
Hawaiian Punch, Clamato, Nantucket Nectars, Venom Energy,
Yoo-Hoo, Mr & Mrs T, Margaritaville and Roses.
We have some of the most recognized beverage brands in North
America, with significant consumer awareness levels and long
histories that evoke strong emotional connections with consumers.
We are a Delaware corporation with our principal executive
offices located at 5301 Legacy Drive, Plano, Texas 75024. Our
telephone number at such address is
(972) 673-7000,
and our website is
www.drpeppersnapplegroup.com
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Information contained on our website is not intended to be
incorporated by reference in this prospectus and you should not
consider that information a part of this prospectus.
FORWARD-LOOKING
STATEMENTS
This prospectus, any prospectus supplement and the documents
incorporated by reference herein and therein contain
forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the
Securities Act), and Section 21E of the
Securities Exchange Act of 1934, as amended (the Exchange
Act), including, in particular, statements about future
events, future financial performance, plans, strategies,
expectations, prospects, competitive environment, regulation and
availability of raw materials.
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Forward-looking statements include all statements that are not
historical facts and can be identified by the use of
forward-looking terminology such as the words may,
will, expect, anticipate,
believe, estimate, plan,
intend or the negative of these terms or similar
expressions. We have based these forward-looking statements on
our current views with respect to future events and financial
performance. Our actual financial performance could differ
materially from those projected in the forward-looking
statements due to the inherent uncertainty of estimates,
forecasts and projections, and our financial performance may be
better or worse than anticipated. Given these uncertainties, you
should not put undue reliance on any forward-looking statements.
Forward-looking statements represent our estimates and
assumptions only as of the date that they were made. We do not
undertake any duty to update the forward-looking statements, and
the estimates and assumptions associated with them, except to
the extent required by applicable securities laws. All of the
forward-looking statements are qualified in their entirety by
reference to the factors discussed in Item 1A under
Risk Factors and elsewhere in our Annual Report on
Form 10-K
for the year ended December 31, 2008, as amended by our
Current Report on Form
8-K
filed on
December 11, 2009, and our other filings with the SEC.
These risk factors may not be exhaustive as we operate in a
continually changing business environment with new risks
emerging from time to time that we are unable to predict or that
we currently do not expect to have a material adverse effect on
our business. You should carefully read those reports in their
entirety as they contain important information about our
business and the risks we face. See
Where You Can Find
More Information
and
Incorporation of Certain
Information by Reference
herein.
RISK
FACTORS
Before you invest in the securities covered by this prospectus,
you should carefully consider the factors discussed in
Item 1A under Risk Factors and elsewhere in our
Annual Report on
Form 10-K
for the year ended December 31, 2008, as amended by our
Current Report on Form
8-K
filed on
December 11, 2009, the Quarterly Reports on
Form 10-Q
for the quarterly periods ended March 31, June 30 and
September 30, 2009, and the applicable prospectus
supplement and cautionary notes regarding forward-looking
statements included or incorporated by reference in this
prospectus, together with all of the other information included
in this prospectus, the applicable prospectus supplement and the
documents we incorporate by reference. See
Incorporation of Certain Information by
Reference
herein.
If any of the risks described in these reports or other
documents were to materialize, our business, results of
operations, cash flows, financial condition and prospects could
be materially and adversely affected. In that case, our ability
to make distributions to our stockholders or to pay interest on,
or principal of, any debt securities issued by us, may be
reduced, the trading prices of any of our publicly traded
securities could decline and you could lose all or part of your
investment.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of consolidated
earnings to consolidated fixed charges for the nine months ended
September 30, 2009 and the five years ended
December 31, 2008, 2007, 2006, 2005 and 2004.
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For the Nine Months
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Ended
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For the Years Ended December 31,
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September 30, 2009
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2008
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2007
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2006
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2005
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2004
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Ratio of earnings to fixed
charges
(1)
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5.0x
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(2)
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4.0x
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3.9x
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4.6x
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4.7x
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(1)
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Earnings represent income before provision for income taxes,
equity in earnings of unconsolidated subsidiaries and cumulative
effect of changes in accounting policies, plus (a) fixed
charges and amortization of capitalized interest, and less
(b) capitalized interest. Fixed charges include:
(i) interest expense; (ii) capitalized interest; and
(iii) the portion of rental expense which management
believes is a reasonable approximation of the interest cost
component of rental expense incurred by us. When earnings are
inadequate to cover fixed charges, the deficiency is reported.
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(2)
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For the year ended December 31, 2008, earnings were
insufficient to cover fixed charges by approximately
$382 million.
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4
We had no preferred stock outstanding for any period presented,
and accordingly, the ratio of consolidated earnings to combined
fixed charges and preferred stock dividends is the same as the
ratio of earnings to fixed charges.
USE OF
PROCEEDS
Unless we inform you otherwise in the prospectus supplement, we
expect to use the net proceeds from the sale of securities for
general corporate purposes.
DESCRIPTION
OF CAPITAL STOCK
The following description of the material terms of our capital
stock is based on the provisions of our Amended and Restated
Certificate of Incorporation (Certificate of
Incorporation), our Amended and Restated By-Laws
(By-Laws) and provisions of applicable law. We have
summarized certain portions of the Certificate of Incorporation
and By-Laws below. The summary is not complete. The Certificate
of Incorporation and By-Laws are incorporated by reference as
exhibits to the registration statement of which this prospectus
forms a part. For more information as to how you can obtain a
current copy of our Certificate of Incorporation and By-Laws,
see
Where You Can Find More Information
herein.
General
Our authorized capital stock consists of 800,000,000 shares
of common stock, par value $0.01 per share, and
15,000,000 shares of preferred stock, par value $0.01 per
share. Our board of directors may establish the rights and
preferences of the preferred stock from time to time. As of
December 9, 2009, 254,109,047 shares of our common stock
were issued and outstanding and held of record by approximately
31,000 holders; and no shares of our preferred stock were issued
or outstanding.
Common
Stock
Each holder of our common stock is entitled to one vote for each
share on all matters to be voted upon by the common stockholders
and there are no cumulative voting rights. Subject to any
preferential rights of any outstanding preferred stock, holders
of our common stock are entitled to receive ratably the
dividends, if any, as may be declared from time to time by the
board of directors out of funds legally available. If there is a
liquidation, dissolution or winding up of our company, holders
of our common stock will be entitled to share in our assets
remaining after the payment of liabilities and any preferential
rights of any outstanding preferred stock.
Holders of our common stock have no preemptive or conversion
rights or other subscription rights and there are no redemption
or sinking fund provisions applicable to the common stock. All
outstanding shares of our common stock are fully paid and
non-assessable. The rights, preferences and privileges of the
holders of our common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series
of preferred stock which we may designate and issue in the
future.
Preferred
Stock
Under the terms of our Certificate of Incorporation, our board
of directors is authorized, subject to limitations prescribed by
the Delaware General Corporation Law (DGCL), and by
our Certificate of Incorporation, to issue preferred stock in
one or more series without stockholder approval. Our board of
directors has the discretion, subject to limitations prescribed
by the DGCL and by our Certificate of Incorporation, to
determine the rights, preferences, privileges and restrictions,
including voting rights, dividend rights, conversion rights,
redemption privileges and liquidation preferences, of each
series of preferred stock.
5
Anti-Takeover
Effects of Various Provisions of Delaware Law and Our
Certificate of Incorporation and By-Laws
Provisions of the DGCL and our Certificate of Incorporation and
By-Laws could make it more difficult to acquire us by means of a
tender offer, a proxy contest or otherwise, or to remove
incumbent officers and directors. These provisions, summarized
below, would be expected to discourage certain types of coercive
takeover practices and takeover bids our board of directors may
consider inadequate and to encourage persons seeking to acquire
control of us to first negotiate with us. We believe that the
benefits of increased protection of our ability to negotiate
with the proponent of an unfriendly or unsolicited proposal to
acquire or restructure us will outweigh the disadvantages of
discouraging takeover or acquisition proposals because, among
other things, negotiation of these proposals could result in an
improvement of their terms.
Composition
of the Board
Our Certificate of Incorporation and By-Laws provide that the
directors will be classified with respect to the time for which
they hold office into three classes. One class of directors was
originally elected for a term expiring at the annual meeting of
stockholders held in 2009, another class was originally elected
for a term expiring at the annual meeting of stockholders to be
held in 2010 and a third class was originally elected for a term
expiring at the annual meeting of stockholders to be held in
2011, with each director to hold office until his or her
successor is duly elected and qualified. Commencing with the
2009 annual meeting of stockholders, directors elected to
succeed directors whose terms then expire will be elected for a
term of office to expire at the third succeeding annual meeting
of stockholders after their election, with each director to hold
office until such persons successor is duly elected and
qualified.
Board
Vacancies to be Filled by Remaining Directors and Not
Stockholders
Our Certificate of Incorporation and By-Laws provide that any
vacancies, including any newly created directorships, on the
board of directors, will be filled by the affirmative vote of
the majority of the remaining directors then in office, even if
such directors constitute less than a quorum, or by a sole
remaining director.
Removal
of Directors by Stockholders
Our Certificate of Incorporation and By-Laws provide that
directors may be removed by stockholders only for cause and only
by the affirmative vote of the holders of at least two-thirds of
the votes which all stockholders would be entitled to cast in
any annual election of directors.
Stockholder
Action
Our Certificate of Incorporation and By-Laws preclude
stockholders from calling special meetings and taking action or
passing resolutions by written consent.
Advance
Notice of Director Nominations and Stockholder
Proposals
Our By-Laws contain advance notice procedures for stockholders
to make nominations of candidates for election as directors or
to bring other business before the annual meeting of
stockholders. As specified in our By-Laws, director nominations
and the proposal of business to be considered by stockholders
may be made only pursuant to a notice of meeting, at the
direction of the board of directors or by a stockholder who is
entitled to vote at the meeting and who has complied with the
advance notice procedures that are provided in our By-Laws.
To be timely, a nomination of a director by a stockholder or
notice for business to be brought before an annual meeting by a
stockholder must be delivered to the secretary at our principal
executive offices not less than 90 days nor more than
120 days prior to the first anniversary of the preceding
years annual meeting; provided, however, that in the event
that the date of an annual meeting is advanced by more than
30 days or delayed by more than 60 days from such
anniversary date, for notice by the stockholder to be timely, it
must be delivered not earlier than the 120th day prior to
such annual meeting and not later than the close of
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business on the later of (i) the 90th day prior to
such annual meeting and (ii) the 10th day following
the day on which notice of such annual meeting was mailed or
public announcement of the date of such meeting is first made,
whichever first occurs.
In the event a special meeting of stockholders is called for the
purpose of electing one or more directors, any stockholder
entitled to vote may nominate a person or persons as specified
in our By-Laws, but only if the stockholder notice is delivered
to the secretary at our principal executive offices not earlier
than the 120th day prior to such special meeting and not
later than the close of business on the later of (x) the
90th day prior to such special meeting and (y) the
10th day following the day on which notice of the date of
such special meeting was mailed or public disclosure of the date
of such special meeting was made, whichever first occurs.
Amendments
to the Certificate of Incorporation and By-Laws
Our Certificate of Incorporation and By-Laws require an
affirmative vote of two-thirds of the voting power of the
outstanding shares to amend certain provisions of our
Certificate of Incorporation or By-Laws, including the ability
of stockholders to call special meetings or act by written
consent, the size of the board, the director removal provisions,
filling vacancies on the board, indemnification of directors and
officers, advance notice provisions and supermajority voting
requirements.
Delaware
Anti-Takeover Statute
We are subject to Section 203 of the DGCL, an anti-takeover
statute. In general, Section 203 of the DGCL prohibits a
publicly-held Delaware corporation from engaging in a
business combination with an interested
stockholder for a period of three years following the time
the person became an interested stockholder, unless (with
certain exceptions) the business combination or the transaction
in which the person became an interested stockholder is approved
in a prescribed manner. Generally, a business
combination includes a merger, asset or stock sale or
other transaction resulting in a financial benefit to the
interested stockholder. Generally, an interested
stockholder is a person who, together with affiliates and
associates, owns (or within three years prior to the
determination of interested stockholder status did own) 15% or
more of a corporations voting stock. The existence of this
provision would be expected to have an anti-takeover effect with
respect to transactions not approved in advance by the board of
directors, including discouraging attempts that might result in
a premium over the market price for the shares of common stock
held by stockholders.
No
Cumulative Voting
The DGCL provides that stockholders are denied the right to
cumulate votes in the election of directors unless our
Certificate of Incorporation provides otherwise. Our Certificate
of Incorporation does not provide for cumulative voting.
Limitations
on Liability and Indemnification of Officers and
Directors
The DGCL authorizes corporations to limit or eliminate the
personal liability of directors to corporations and their
stockholders for monetary damages for breaches of
directors fiduciary duties as directors. Our Certificate
of Incorporation includes provisions that indemnify, to the
fullest extent allowable under the DGCL, the personal liability
of directors or officers for monetary damages for actions taken
as a director or officer of our company, or for serving at our
request as a director or officer or another position at another
corporation or enterprise, as the case may be. Our Certificate
of Incorporation also provides that we must indemnify and
advance reasonable expenses to our directors and officers,
subject to our receipt of an undertaking from the indemnified
party as may be required under the DGCL. We are also expressly
authorized to carry directors and officers insurance
to protect our company, our directors, officers and certain
employees for some liabilities.
The limitation of liability and indemnification provisions in
our Certificate of Incorporation may discourage stockholders
from bringing a lawsuit against directors for breach of their
fiduciary duty. These provisions may also have the effect of
reducing the likelihood of derivative litigation against
directors and
7
officers, even though such an action, if successful, might
otherwise benefit us and our stockholders. However, these
provisions do not limit or eliminate our rights, or those of any
stockholder, to seek non-monetary relief such as injunction or
rescission in the event of a breach of a directors duty of
care. Moreover, the provisions do not alter the liability of
directors under the federal securities laws. In addition, your
investment may be adversely affected to the extent that, in a
class action or direct suit, we pay the costs of settlement and
damage awards against directors and officers pursuant to these
indemnification provisions.
There is currently no pending material litigation or proceeding
against any of our directors, officers or employees for which
indemnification is sought.
Authorized
but Unissued Shares
Our authorized but unissued shares of common stock and preferred
stock are available for future issuance without your approval.
We may use additional shares for a variety of purposes,
including future public offerings to raise additional capital,
to fund acquisitions and as employee compensation. The existence
of authorized but unissued shares of common stock and preferred
stock could render more difficult or discourage an attempt to
obtain control of us by means of a proxy contest, tender offer,
merger or otherwise.
Stock
Exchange Listing
Our common stock is listed on the New York Stock Exchange
(NYSE) under the ticker symbol DPS.
Transfer
Agent and Registrar
Computershare Trust Company, N.A. is the transfer agent and
registrar for our common stock.
Direct
Registration System
Our common stock is registered in book-entry form through the
direct registration system. Under this system, ownership of our
common stock is reflected in account statements periodically
distributed to stockholders by Computershare, our transfer
agent, who holds the book-entry shares on behalf of our common
stockholders.
DESCRIPTION
OF DEBT SECURITIES
The following is a general description of the debt securities
that we may offer from time to time. The particular terms of the
debt securities offered by us and the extent, if any, to which
the general provisions described below may apply to those
securities will be described in the applicable prospectus
supplement. As you read this section, please remember that the
specific terms of a debt security as described in the applicable
prospectus supplement will supplement and may modify or replace
the general terms described in this section. If there are any
differences between the applicable prospectus supplement and
this prospectus, the applicable prospectus supplement will
control. As a result, the statements we make in this section may
not apply to the debt security you purchase.
Our debt securities, consisting of notes, debentures or other
evidences of indebtedness, may be issued from time to time in
one or more series pursuant to, in the case of senior debt
securities, a senior indenture to be entered into between us and
Wells Fargo Bank, N.A., as trustee, and in the case of
subordinated debt securities, a subordinated indenture to be
entered into between us and a trustee to be named therein. To
the extent any of the debt securities will be guaranteed (the
Subsidiary Guarantees) by one or more of our
subsidiaries (the Subsidiary Guarantors), the
Subsidiary Guarantors guaranteeing such debt securities will
enter into a supplemental indenture to the applicable indenture
with us and the applicable trustee.
Because the following is only a summary of selected provisions
of the indentures and the debt securities, it does not contain
all information that may be important to you. This summary is
not complete and is qualified in its entirety by reference to
the base indentures and any supplemental indentures thereto or
officers certificate or board resolution related thereto.
We urge you to read the indentures because the indentures, not
8
this description, define the rights of the holders of the debt
securities. The senior indenture and the subordinated indenture
will be substantially in the forms included as exhibits to the
registration statement of which this prospectus is a part. The
terms of our debt securities will include those set forth in the
indentures and those made a part of the indentures by the
Trust Indenture Act of 1939, as amended (the
Trust Indenture Act).
Unless we inform you otherwise in the prospectus supplement,
Senior Debt will mean all of our indebtedness,
including guarantees, unless the indebtedness states that it is
not senior to the subordinated debt securities
In this summary description of the debt securities, unless we
state otherwise or the context clearly indicates otherwise, all
references to we, us, and
our refer to Dr Pepper Snapple Group, Inc. only and
not to any of its subsidiaries.
General
Neither indenture limits the amount of debt securities that may
be issued under that indenture, and neither indenture limits the
amount of other unsecured debt or securities that we may issue.
We may issue debt securities under the indentures from time to
time in one or more series.
We are not obligated to issue all debt securities of one series
at the same time and, unless otherwise provided in the
prospectus supplement, we may reopen a series, without the
consent of the holders of the debt securities of that series,
for the issuance of additional debt securities of that series.
Additional debt securities of a particular series will have the
same terms and conditions as outstanding debt securities of such
series, except for the date of original issuance and the
offering price, and will be consolidated with, and form a single
series with, such outstanding debt securities.
When we refer to debt securities or a series
of debt securities, we mean, respectively, debt securities
or a series of debt securities issued under the applicable
indenture. When we refer to a prospectus supplement, we mean the
prospectus supplement describing the specific terms of the
applicable debt security. The terms used in a prospectus
supplement will have the meanings described in this prospectus,
unless otherwise specified.
The senior debt securities will constitute our senior unsecured
indebtedness and will rank equally in right of payment with all
of our other unsecured and unsubordinated indebtedness and
senior in right of payment with all of our subordinated
indebtedness outstanding from time to time. The senior debt
securities will be effectively subordinated to, and thus have a
junior position to, any secured indebtedness we may have with
respect to the assets securing that indebtedness. The
subordinated debt securities will constitute our unsecured and
subordinated obligations and will rank junior to all of our
senior indebtedness and may rank equally with or senior to other
subordinated indebtedness we may issue from time to time.
The debt securities will be obligations of Dr Pepper Snapple
Group, Inc., which is a holding company with no material
operating assets, other than the stock of its subsidiaries and
loans to subsidiaries. All of Dr Pepper Snapple Group,
Inc.s revenue and cash flow is generated through its
subsidiaries. Accordingly, Dr Pepper Snapple Group, Inc.s
ability to make payments on its indebtedness, including the debt
securities, and to fund its other obligations is dependent not
only on the ability of its subsidiaries to generate cash, but
also on the ability of its subsidiaries to distribute cash to it
in the form of interest and principal payments on loans due to
us, dividends, fees, interest, loans or otherwise. In addition,
any debt securities will effectively rank junior to all
liabilities of Dr Pepper Snapple Group, Inc.s subsidiaries
that do not guarantee the debt securities (excluding any amounts
owed by such subsidiaries to us). Claims of creditors of Dr
Pepper Snapple Group, Inc.s subsidiaries that do not
guarantee the debt securities generally will have priority with
respect to the assets and earnings of such subsidiaries over the
claims of Dr Pepper Snapple Group, Inc.s creditors,
including holders of any debt securities. Accordingly, any debt
securities will be effectively subordinated to creditors,
including trade creditors and preferred stockholders, if any, of
such subsidiaries.
Unless we inform you otherwise in the prospectus supplement,
neither indenture will contain any covenants or other provisions
designed to protect holders of the debt securities in the event
we participate in a
9
highly leveraged transaction or upon a change of control. In
addition, unless we inform you otherwise in the prospectus
supplement, the indentures will not contain provisions that give
holders of the debt securities the right to require us to
repurchase their securities in the event of a decline in our
credit rating for any reason, including as a result of a
takeover, recapitalization or similar restructuring or otherwise.
The prospectus supplement relating to any series of debt
securities being offered will include specific terms relating to
the offering. These terms will include some or all of the
following:
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whether the debt securities will be senior or subordinated debt
securities;
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whether the debt securities will be guaranteed by any of our
subsidiaries and, if so, the names of the Subsidiary Guarantors;
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the title of the debt securities;
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the total principal amount of the debt securities;
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whether we will issue the debt securities in individual
certificates to each holder or in the form of temporary or
permanent global securities held by a depositary on behalf of
holders and the name of the depositary for the debt securities,
if other than The Depository Trust Company
(DTC), and any circumstances under which the holder
may request securities in non-global form, if we choose not to
issue the debt securities in book-entry form only;
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the date or dates on which the principal of and any premium on
the debt securities will be payable;
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any interest rate, the date from which any such interest will
accrue, the interest payment dates on which any such interest
will be payable and the record dates for any such interest
payments;
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whether and under what circumstances we will pay any additional
amounts with respect to the debt securities;
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the place or places where payments on the debt securities will
be payable;
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any provisions for optional redemption or early repayment;
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any sinking fund or other provisions that would obligate us to
redeem, purchase or repay the debt securities;
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the denominations in which we will issue the debt securities if
other than $1,000 and integral multiples of $1,000 in excess
thereof;
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whether payments on the debt securities will be payable in
foreign currency or another form and whether payments will be
payable by reference to any index or formula;
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the portion of the principal amount of debt securities that will
be payable if the maturity is accelerated, if other than the
entire principal amount;
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whether the provisions described below under the heading
Defeasance and Discharge
apply to the
debt securities;
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any changes or additions to the events of default or covenants
described in this prospectus;
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any restrictions or other provisions relating to the transfer or
exchange of debt securities;
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any terms for the conversion or exchange of the debt securities
for other securities;
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with respect to the subordinated indenture, any changes to the
subordination provisions for the subordinated debt
securities; and
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any other terms of the debt securities, whether in addition to,
or by modification or deletion of, the terms described herein.
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We may sell the debt securities at a discount, which may be
substantial, below their stated principal amount. These debt
securities may bear no interest or interest at a rate that at
the time of issuance is below
10
market rates. If we sell these debt securities, we will describe
in the prospectus supplement any material United States
(U.S.) federal income tax consequences and other
special considerations.
If we sell any of the debt securities for any foreign currency
or if payments on the debt securities are payable in any foreign
currency, we will describe in the prospectus supplement the
restrictions, elections, tax consequences, specific terms and
other information relating to those debt securities and the
foreign currency.
Consolidation,
Merger or Sale of Assets
We will not consolidate or combine with or merge with or into
or, directly or indirectly, sell, assign, convey, lease,
transfer or otherwise dispose of all or substantially all of our
assets to any person or persons in a single transaction or
through a series of transactions, unless:
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we are the successor or continuing entity or, if we are not the
successor or continuing entity, the resulting, surviving or
transferee entity (the surviving entity) is a
company organized and existing under the laws of the United
States, any State thereof or the District of Columbia that
expressly assumes all of our obligations under the debt
securities and the indenture pursuant to a supplemental
indenture executed and delivered to the trustee;
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immediately after giving effect to such transaction or series of
transactions, no default has occurred and is continuing; and
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we or the surviving entity will have delivered to the trustee an
officers certificate and opinion of counsel stating that
the transaction or series of transactions and a supplemental
indenture, if any, complies with the indenture.
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If any consolidation or merger or any sale, assignment,
conveyance, lease, transfer or other disposition of all or
substantially all of our assets occurs in accordance with the
applicable indenture, the surviving entity will succeed to, and
be substituted for, and may exercise every right and power of
DPS under the applicable indenture with the same effect as if
such surviving entity had been named as DPS. We will (except in
the case of a lease) be discharged from all obligations and
covenants under the applicable indenture and any debt securities
issued thereunder.
Notwithstanding the foregoing, we may merge or consolidate into
or with any of our subsidiaries.
Subsidiary
Guarantees
If specified in the prospectus supplement, one or more
Subsidiary Guarantors will guarantee the debt securities of a
series. Unless otherwise indicated in the prospectus supplement,
the following provisions will apply to the Subsidiary Guarantee
of the Subsidiary Guarantors with respect to that series of debt
securities.
Subject to the limitations described below and in the applicable
prospectus supplement, the Subsidiary Guarantors will, jointly
and severally, fully, unconditionally and irrevocably guarantee
the full and punctual payment when due, whether at maturity, by
acceleration, by redemption or otherwise, of the principal of,
premium, if any, interest and additional amounts, if any, on the
debt securities and all of our other monetary obligations under
the indentures.
The obligations of each Subsidiary Guarantor under its
Subsidiary Guarantee will be limited as necessary to prevent
that Subsidiary Guarantee from constituting a fraudulent
conveyance under applicable law.
In the case of subordinated debt securities, a Subsidiary
Guarantors Subsidiary Guarantee will be subordinated in
right of payment to the Senior Debt of such Subsidiary Guarantor
on the same basis as the subordinated debt securities are
subordinated to our Senior Debt. No payment will be made by any
Subsidiary Guarantor under its Subsidiary Guarantee during any
period in which payments by us on the subordinated debt
securities are suspended by the subordination provisions of the
subordinated indenture.
Each Subsidiary Guarantor that makes a payment under its
Subsidiary Guarantee will be entitled upon payment in full of
all guaranteed obligations under the indenture to contribution
from each other Subsidiary
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Guarantor in an amount equal to such other Subsidiary
Guarantors pro rata portion of such payment based on the
respective net assets of all the Subsidiary Guarantors at the
time of such payment.
If a Subsidiary Guarantee were rendered voidable, it could be
subordinated by a court to all other indebtedness (including
guarantees and other contingent liabilities) of the applicable
Subsidiary Guarantor, and, depending on the amount of such
indebtedness, a Subsidiary Guarantors liability on its
Subsidiary Guarantee could be reduced to zero.
The Subsidiary Guarantee of a Subsidiary Guarantor will be
automatically and unconditionally released and discharged,
without the consent of the holders of our debt securities, and
no further action by us, any Subsidiary Guarantor or the trustee
shall be required for such release (unless we shall notify the
Trustee that no release and discharge shall occur as a result
thereof) upon:
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the sale or other disposition (including by way of consolidation
or merger) of such Subsidiary Guarantor to a person or entity
other than us or any of our subsidiaries as permitted by the
indenture; or
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our exercise of our legal defeasance option under
Defeasance and Discharge
or the
discharge of our obligations under the applicable indenture in
accordance with the terms of the applicable indenture.
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If specified in the prospectus supplement, we will cause any of
our subsidiaries that guarantees, directly or indirectly, any of
our indebtedness (including any indebtedness under any Credit
Agreement) to at the same time, execute and deliver to the
trustee a supplemental indenture pursuant to which such
subsidiary will guarantee payment of the debt securities of such
series on the same terms and conditions as those set forth in
the indenture. Thereafter, such subsidiary shall be a Subsidiary
Guarantor for all purposes of such series until such Subsidiary
Guarantee is released in accordance with the provisions of the
applicable indenture.
Credit Agreements means the Existing Credit
Agreements as such agreements may be amended, supplemented or
otherwise modified from time to time, and any agreement,
indenture or other documentation relating to extensions,
refinancings, replacements or restructuring of the credit
facilities governed by the Existing Credit Agreements, whether
the same or any other agent, agents, lenders or group of lenders
is or are parties thereto.
Existing Credit Agreements means (1) the credit
agreement dated as of March 10, 2008 and amended and
restated on April 11, 2008 among DPS, the lenders and
issuing banks party thereto, JPMorgan Chase Bank, N.A., as
administrative agent, Bank of America, N.A., as syndication
agent, and Goldman Sachs Credit Partners L.P., Morgan Stanley
Senior Funding, Inc. and UBS Securities LLC, as documentation
agents and (2) the
364-day
bridge credit agreement dated as of March 10, 2008 and
amended and restated on April 11, 2008 among DPS, the
lenders and issuing banks party thereto, JPMorgan Chase Bank,
N.A., as administrative agent, Bank of America, N.A., as
syndication agent, and Goldman Sachs Credit Partners L.P.,
Morgan Stanley Senior Funding, Inc. and UBS Securities LLC, as
documentation agents.
Events of
Default
Unless we inform you otherwise in the prospectus supplement, the
following are events of default with respect to a series of debt
securities:
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our failure to pay any installment of interest on or any
additional amounts with respect to any debt security of that
series when due and such default continues for 30 days or
longer, whether or not, in the case of subordinated debt
securities, such payment is prohibited by the subordination
provisions of the subordinated indenture;
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our failure to pay the principal of or any premium on any debt
security of that series when due, whether or not, in the case of
subordinated debt securities, such payment is prohibited by the
subordination provisions of the subordinated indenture;
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our failure to comply with the covenant prohibiting certain
consolidations, mergers and sales of assets;
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our failure to comply with any covenant or agreement in that
series of debt securities or the applicable indenture for
90 days after written notice by the trustee or by the
holders of at least 25% in principal amount of the outstanding
debt securities of that series issued under that indenture;
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our failure to deposit any sinking fund payment, when due, in
respect of any debt security of that series, whether or not, in
the case of subordinated debt securities, such deposit is
prohibited by the subordination provisions of the subordinated
indenture;
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if any Subsidiary Guarantor has guaranteed the debt securities
of such series, the Subsidiary Guarantee of any such Subsidiary
Guarantor is held to be unenforceable or invalid or ceases for
any reason to be in full force and effect (other than in
accordance with the terms of the applicable indenture) or any
Subsidiary Guarantor or any person acting on behalf of any
Subsidiary Guarantor denies or disaffirms such Subsidiary
Guarantors obligations under its Subsidiary Guarantee
(other than by reason of a release of such Subsidiary Guarantor
from its Subsidiary Guarantee in accordance with the terms of
the applicable indenture);
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specified events involving bankruptcy, insolvency or
reorganization of DPS or certain of its subsidiaries; and
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any other event of default provided for in that series of debt
securities.
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We may change, eliminate or add to the events of default with
respect to any particular series or any particular debt security
or debt securities within a series, as indicated in the
applicable prospectus supplement. A default under one series of
debt securities will not necessarily be a default under any
other series.
If an event of default relating to certain events of our
bankruptcy or insolvency occurs, all then outstanding debt
securities of that series will become due and payable
immediately without further action or notice. If any other event
of default for any series of debt securities occurs and is
continuing, the trustee may and, at the direction of the holders
of at least 25% in aggregate principal amount of the outstanding
debt securities of that series shall, declare all of those debt
securities to be due and payable immediately by notice in
writing to us and, in case of a notice by holders, also to the
trustee specifying the respective event of default and that it
is a notice of acceleration.
Subject to certain limitations, holders of a majority in
aggregate principal amount of the outstanding debt securities of
any series may direct the trustee in its exercise of any trust
or power with respect to that series. The trustee may withhold
from holders of the debt securities of any series notice of any
continuing default or event of default for such series if it
determines that withholding notice is in their interest, except
a default or event of default relating to the payment of
principal, interest, premium or additional amounts, if any.
Subject to the provisions of the applicable indenture relating
to the duties of the trustee, in case an event of default for
any series occurs and is continuing, the trustee will be under
no obligation to exercise any of the rights or powers under the
indenture at the request or direction of any holders of debt
securities of that series unless such holders have offered to
the trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive
payment of principal, premium or additional amounts, if any, or
interest when due, no holder of debt securities of a series may
pursue any remedy with respect to the indenture or the debt
securities unless:
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such holder has previously given the trustee notice that an
event of default is continuing with respect to that series;
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holders of at least 25% in aggregate principal amount of the
debt securities of that series have requested the trustee to
pursue the remedy;
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such holders have offered the trustee reasonable security or
indemnity against any loss, liability or expense;
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the trustee has not complied with such request within
60 days after the receipt of the request and the offer of
security or indemnity; and
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holders of a majority in aggregate principal amount of the debt
securities of that series have not given the trustee a direction
inconsistent with such request within such
60-day
period.
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Holders of a debt security are entitled at any time, however, to
bring a lawsuit for the payment of money due on a debt security
on or after its stated maturity (or, if a debt security is
redeemable, on or after its redemption date).
The holders of a majority in aggregate principal amount of the
debt securities of any series by notice to the trustee may, on
behalf of the holders of all of the debt securities of that
series, rescind an acceleration or waive any existing default or
event of default for such series and its consequences under the
indenture except a continuing default or event of default in the
payment of interest, additional amounts or premium on, or the
principal of, the debt securities.
With respect to subordinated debt securities, all the remedies
available upon the occurrence of an event of default under the
subordinated debt indenture will be subject to the restrictions
on the subordinated debt securities described below under
Subordination.
Book-entry and other indirect owners should consult their banks
or brokers for information on how to give notice or direction to
or make a request for the trustee and how to declare or cancel
an acceleration of the maturity.
We are required to deliver to the trustee annually a statement
regarding compliance with the indenture. Upon becoming aware of
any default or event of default, we are required within five
business days to deliver to the trustee a statement specifying
such default or event of default.
Subordination
Under the subordinated indenture, payment of the principal of
and any premium and interest on the subordinated debt securities
will generally be subordinated and junior in right of payment to
the prior payment in full of all Senior Debt. Unless we inform
you otherwise in the prospectus supplement, we may not make any
payment of principal of or any premium or interest on the
subordinated debt securities if:
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we fail to pay the principal, interest or premium on any Senior
Debt when due; or
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any other event of default (a non-payment default)
occurs with respect to any Senior Debt that we have designated,
if the non-payment default allows the holders of that Senior
Debt to accelerate the maturity of the Senior Debt they hold.
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Unless we inform you otherwise in the prospectus supplement, a
non-payment default will prevent us from paying the subordinated
debt securities only for up to 179 days after holders of
the designated Senior Debt give the trustee for the subordinated
debt securities notice of the non-payment default.
The subordination will not affect our obligation, which will be
absolute and unconditional, to pay, when due, the principal of
and any premium and interest on the subordinated debt
securities. In addition, the subordination will not prevent the
occurrence of any default under the subordinated indenture.
Unless we inform you otherwise in the prospectus supplement, the
subordinated indenture will not limit the amount of Senior Debt
that we may incur. As a result of the subordination of the
subordinated debt securities, if we become insolvent, holders of
subordinated debt securities may receive less on a proportionate
basis than other creditors.
Modification
and Waiver
Except as provided in the next four succeeding paragraphs, each
indenture and the debt securities issued under each indenture
may be amended or supplemented with the consent of the holders
of at least a majority in aggregate principal amount of the debt
securities of each series affected by the change, voting as
separate classes for this purpose, and any existing default or
event of default or compliance with any provision of the
indenture or the debt securities may be waived with the consent
of the holders of a majority in aggregate principal amount of
the then outstanding debt securities of each series affected by
the waiver, voting as
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separate classes for this purpose, in each case, except as may
otherwise be provided pursuant to such indenture for all or any
particular debt securities of any series.
Without the consent of each holder of debt securities of the
series affected, an amendment, supplement or waiver may not
(with respect to any debt securities of such series held by a
non-consenting holder):
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reduce the principal amount of debt securities whose holders
must consent to an amendment, supplement or waiver;
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reduce the principal of any debt security or change its stated
maturity, or alter the provisions relating to the redemption or
repurchase of any debt securities;
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reduce the rate of or change the time for payment of interest on
any debt security;
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waive a default or event of default in the payment of principal
of, or interest or premium, or any additional amounts, if any,
on, the debt securities (except a rescission of acceleration of
the debt securities by the holders of at least a majority in
aggregate principal amount of the then outstanding debt
securities of that series and a waiver of the payment default
that resulted from such acceleration);
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make payments on any debt security payable in currency other
than as originally stated in the debt security;
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make any change in the provisions of the indenture relating to
waivers of past defaults or the rights of holders of debt
securities to receive payments of principal of, or interest or
premium, if any, on the debt securities;
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waive a redemption payment with respect to any debt securities;
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impair a holders right to sue for payment of any amount
due on its debt security;
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release any Subsidiary Guarantor from any of its obligations
under its Subsidiary Guarantee or the indenture, except in
accordance with the terms of the indenture;
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make any change in the preceding amendment, supplement and
waiver provisions; or
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with respect to the subordinated indenture, modify the
provisions relating to the subordination of any subordinated
debt security in a manner adverse to the holder of that security,
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in each case, except as may otherwise be provided pursuant to
such indenture for all or any particular debt securities of any
series.
We may not amend the subordinated indenture to alter the
subordination of any outstanding subordinated debt securities
without the written consent of each holder of Senior Debt then
outstanding who would be adversely affected (or the group or
representative thereof authorized or required to consent thereto
pursuant to the instrument creating or evidencing, or pursuant
to which there is outstanding, such Senior Debt), except as may
otherwise be provided pursuant to such indenture for all or any
particular debt securities of any series. In addition, we may
not modify the subordination provisions of the indenture related
to subordinated debt securities in a manner that would adversely
affect the subordinated debt securities of any one or more
series then outstanding in any material respect, without the
consent of the holders of a majority in aggregate principal
amount of each affected series then outstanding, voting as
separate classes, except as may otherwise be provided pursuant
to such indenture for all or any particular debt securities of
any series.
Book-entry and other indirect owners should consult their banks
or brokers for information on how approval may be granted or
denied if we seek to change an indenture or any debt securities
or request a waiver.
We and the trustee may supplement or amend each indenture or the
debt securities without notice to or the consent of any holders
of debt securities issued under that indenture in certain
circumstances, including:
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to cure any ambiguity, defect or inconsistency;
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to provide for uncertificated debt securities in addition to or
in place of certificated debt securities;
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to establish the form or terms of debt securities of any series
as permitted by the indenture;
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to provide for the assumption of our or any Subsidiary
Guarantors obligations to holders of debt securities in
the case of a merger or consolidation or sale of all or
substantially all of our or any Subsidiary Guarantors
properties or assets, as applicable;
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to make any change that would provide any additional rights or
benefits to the holders of debt securities or that does not
adversely affect the legal rights under the indenture of any
such holder;
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to comply with requirements of the SEC in order to maintain the
qualification of the indenture under the Trust Indenture
Act;
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to add to our or any Subsidiary Guarantors covenants for
the benefit of the holders of all or any series of debt
securities, or to surrender any right or power herein conferred
upon us or any Subsidiary Guarantor;
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to add additional events of default with respect to all or any
series of debt securities;
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to change or eliminate any of the provisions of the indenture;
provided that any such change or elimination will become
effective only when there is no outstanding debt security of any
series created prior to the execution of such amendment or
supplemental indenture that is adversely affected in any
material respect by such change in or elimination of such
provision;
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to supplement any provision of the indenture to permit or
facilitate the defeasance and discharge of any series of debt
securities so long as any action does not adversely affect the
interest of holders of securities of that or any other series in
any material respect;
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to add any Subsidiary Guarantor with respect to any series of
debt securities or release any Subsidiary Guarantor, in each
case pursuant to the terms of the indenture;
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to secure the debt securities;
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to evidence and provide for the acceptance under the indenture
of a successor trustee, each as permitted under the
indenture; or
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to conform the text of the indenture or any debt securities to
the description thereof in any prospectus or prospectus
supplement of DPS with respect to the offer and sale of such
debt securities, to the extent that such provision is
inconsistent with a provision of the indenture or the debt
securities,
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in each case, except as may otherwise be provided pursuant to
such indenture for all or any particular debt securities of any
series.
Special
Rules for Action by Holders
Only holders of outstanding debt securities of the applicable
series will be eligible to take any action under the applicable
indenture, such as giving a notice of default, declaring an
acceleration, approving any change or waiver or giving the
trustee an instruction with respect to debt securities of that
series. Also, we will count only outstanding debt securities in
determining whether the various percentage requirements for
taking action have been met. Any debt securities owned by us or
any of our affiliates or surrendered for cancellation or for
payment or redemption of which money has been set aside in trust
are not deemed to be outstanding. Any required approval or
waiver must be given by written consent.
In some situations, we may follow special rules in calculating
the principal amount of debt securities that are to be treated
as outstanding for the purposes described above. This may
happen, for example, if the principal amount is payable in a
non-U.S. dollar
currency, increases over time or is not to be fixed until
maturity.
We will generally be entitled to set any day as a record date
for the purpose of determining the holders that are entitled to
take action under either indenture. In certain limited
circumstances, only the trustee will be entitled to set a record
date for action by holders. If we or the trustee sets a record
date for an approval or
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other action to be taken by holders, that vote or action may be
taken only by persons or entities who are holders on the record
date and must be taken during the period that we specify for
this purpose, or that the trustee specifies if it sets the
record date. We or the trustee, as applicable, may shorten or
lengthen this period from time to time. This period, however,
may not extend beyond the 180th day after the record date
for the action. In addition, record dates for any global debt
security may be set in accordance with procedures established by
the depositary from time to time. Accordingly, record dates for
global debt securities may differ from those for other debt
securities.
Defeasance
and Discharge
Defeasance
When we use the term defeasance, we mean discharge from some or
all of our obligations under an indenture. If we deposit with
the trustee under an indenture any combination of money or
government securities sufficient to make payments on the debt
securities of a series issued under that indenture on the dates
those payments are due, then, at our option, either of the
following will occur:
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we will be discharged from our obligations with respect to the
debt securities of that series (legal
defeasance); or
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we will no longer have any obligation to comply with specified
restrictive covenants with respect to the debt securities of
that series and other specified covenants under the applicable
indenture, and the related events of default will no longer
apply (covenant defeasance).
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If a series of debt securities is defeased, the holders of the
debt securities of that series will not be entitled to the
benefits of the applicable indenture, except for obligations to
register the transfer or exchange of debt securities, replace
stolen, lost or mutilated debt securities, maintain paying
agencies and hold money for payment in trust. In the case of
covenant defeasance, our obligation to pay principal, premium
and interest on the debt securities will also survive.
Unless we inform you otherwise in the prospectus supplement, we
will be required to deliver to the trustee an opinion of counsel
that the deposit and related defeasance would not cause the
holders of the debt securities to recognize income, gain or loss
for federal income tax purposes and that the holders would 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 the
deposit and related defeasance had not occurred. If we elect
legal defeasance, that opinion of counsel must be based upon a
ruling from the U.S. Internal Revenue Service or a change
in law to that effect.
Satisfaction
and Discharge
An indenture will be discharged and will cease to be of further
effect with respect to the debt securities of a series issued
under that indenture, except for our obligation to register the
transfer of and exchange debt securities of that series, when:
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all debt securities of that series that have been authenticated,
except lost, stolen or destroyed debt securities that have been
replaced or paid and debt securities for whose payment money has
been deposited in trust and thereafter repaid to us, have been
delivered to the trustee for cancellation; or
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all debt securities of that series that have not been delivered
to the trustee for cancellation have become due and payable by
reason of the mailing of a notice of redemption or otherwise or
will become due and payable within one year, and we or any
Subsidiary Guarantor has irrevocably deposited or caused to be
deposited with the trustee as trust funds in trust solely for
the benefit of the holders, cash in U.S. dollars,
non-callable government securities, or a combination of cash in
U.S. dollars and non-callable government securities, in
amounts as will be sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire
indebtedness on the
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debt securities of that series not delivered to the trustee for
cancellation for principal, premium and accrued interest to the
date of maturity or redemption;
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no default or event of default has occurred and is continuing on
the date of the deposit (other than a default or event of
default resulting from the borrowing of funds to be applied to
such deposit) and the deposit will not result in a breach or
violation of, or constitute a default under, any other
instrument to which we or any subsidiary is a party or by which
we or any subsidiary is bound;
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we or any Subsidiary Guarantor has paid or caused to be paid all
sums payable by it under the indenture; and
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we have delivered irrevocable instructions to the trustee under
the indenture to apply the deposited money toward the payment of
the debt securities at maturity or on the redemption date, as
the case may be.
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In addition, we must deliver an officers certificate and
an opinion of counsel to the trustee stating that all conditions
precedent to satisfaction and discharge have been satisfied.
Governing
Law
New York law will govern the indentures and the debt securities.
The
Trustee
Wells Fargo Bank, N.A. will be the trustee under the senior
indenture. Wells Fargo Bank, N.A. serves as trustee under an
indenture related to other senior securities that we have
issued. We may have normal banking relationships with the
trustee under the subordinated indenture in the ordinary course
of business.
If the trustee becomes a creditor of DPS or any Subsidiary
Guarantor, the applicable indenture will limit the right of the
trustee to obtain payment of claims in certain cases or to
realize on certain property received in respect of any such
claim as security or otherwise. The trustee will be permitted to
engage in other transactions; however, if it acquires any
conflicting interest (as defined in the Trust Indenture
Act) after a default has occurred and is continuing, it must
eliminate such conflict within 90 days, apply to the SEC
for permission to continue as trustee (if the indenture has been
qualified under the Trust Indenture Act) or resign.
The holders of a majority in aggregate principal amount of debt
securities of a particular series will have the right to direct
the time, method and place of conducting any proceeding for
exercising any remedy available to the trustee with respect to
that series, subject to certain exceptions. The indenture will
provide that in case an event of default occurs and is
continuing, the trustee will be required, in the exercise of its
power, to use the degree of care of a prudent man in the conduct
of his own affairs. Subject to such provisions, the trustee will
be under no obligation to exercise any of its rights or powers
under the indenture at the request of any holder of debt
securities, unless such holder has offered to the trustee
security and indemnity satisfactory to it against any loss,
liability or expense.
Payments
and Paying Agents
Unless we inform you otherwise in a prospectus supplement, we
will make payments on the debt securities in U.S. dollars
at the office of the trustee and any paying agent. At our
option, however, payments may be made by check mailed to the
address of the person entitled to the payment as it appears in
the security register. Unless we inform you otherwise in a
prospectus supplement, we will make interest payments to the
person in whose name the debt security is registered at the
close of business on the record date for the interest payment.
We will make payments on a global debt security in accordance
with the applicable policies of the depositary as in effect from
time to time. Under those policies, we will pay directly to the
depositary, or its nominee, and not to any indirect owners who
own beneficial interests in the global debt security. An
indirect owners right to receive payments will be governed
by the rules and practices of the depositary and its
participants.
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Unless we inform you otherwise in a prospectus supplement, the
trustee under the applicable indenture will be designated as the
paying agent for payments on debt securities issued under that
indenture. We may at any time designate additional paying agents
or rescind the designation of any paying agent or approve a
change in the office through which any paying agent acts.
If the principal of or any premium or interest on debt
securities of a series is payable on a day that is not a
business day, the payment will be made on the following business
day with the same force and effect as if made on such interest
payment date, and no additional interest will accrue solely as a
result of such delayed payment. For these purposes, unless we
inform you otherwise in a prospectus supplement, a
business day is any day that is not a Saturday,
Sunday or other day on which banking institutions in New York,
New York or another place of payment on the debt securities of
that series are authorized or required by law to close.
Book-entry and other indirect owners should consult their banks
or brokers for information on how they will receive payments on
their debt securities.
Regardless of who acts as paying agent, all money paid by us to
a paying agent that remains unclaimed at the end of one year
after the amount is due to a holder will be repaid to us. After
that one-year period, the holder may look only to us for payment
and not to the trustee, any other paying agent or anyone else.
Redemption
or Repayment
If there are any provisions regarding redemption or repayment
applicable to a debt security, we will describe them in the
applicable prospectus supplement.
We or our affiliates may purchase debt securities from investors
who are willing to sell from time to time, either in the open
market at prevailing prices or in private transactions at
negotiated prices. Debt securities that we or they purchase may,
at our discretion, be held, resold or canceled.
Notices
Notices to be given to holders of a global debt security will be
given only to the depositary, in accordance with its applicable
policies as in effect from time to time. Notices to be given to
holders of debt securities not in global form will be sent by
mail to the respective addresses of the holders as they appear
in the trustees records, and will be deemed given when
mailed. Neither the failure to give any notice to a particular
holder, nor any defect in a notice given to a particular holder,
will affect the sufficiency of any notice given to another
holder.
Book-entry and other indirect owners should consult their banks
or brokers for information on how they will receive notices.
Book-Entry;
Delivery and Form
Unless we inform you otherwise in the prospectus supplement, any
debt securities will be issued in registered, global form
(global debt securities).
The global debt securities will be deposited upon issuance with
the trustee as custodian for DTC, in New York, New York,
and registered in the name of DTC or its nominee, in each case,
for credit to an account of a direct or indirect participant in
DTC as described below.
Except as set forth below, the global debt securities may be
transferred, in whole and not in part, only to another nominee
of DTC or to a successor of DTC or its nominee. Beneficial
interests in the global debt securities may not be exchanged for
definitive debt securities in registered certificated form
(certificated debt securities) except in the limited
circumstances.
Transfers of beneficial interests in the global debt securities
will be subject to the applicable rules and procedures of DTC
and its direct or indirect participants (including, if
applicable, those of Euroclear and Clearstream), which may
change from time to time.
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DESCRIPTION
OF WARRANTS
We may issue warrants to purchase our debt or equity securities
or other rights, including rights to receive payment in cash or
securities based on the value, rate or price of one or more
specified commodities, currencies, securities or indices, or any
combination of the foregoing. Warrants may be issued
independently or together with any other securities and may be
attached to, or separate from, such securities. Each series of
warrants will be issued under a separate warrant agreement to be
entered into between us and a bank or trust company, as warrant
agent. The warrant agent will act solely as our agent in
connection with the warrants and will not have any obligation or
relationship of agency or trust for or with any holders or
beneficial owners of warrants. The terms of any warrants to be
issued and a description of the material provisions of the
applicable warrant agreement will be set forth in the applicable
prospectus supplement.
The applicable prospectus supplement will describe the following
terms of any warrants in respect of which this prospectus is
being delivered:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the currency or currencies in which the price of such warrants
will be payable;
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the securities or other rights, including rights to receive
payment in cash or securities based on the value, rate or price
of one or more specified commodities, currencies, securities or
indices, or any combination of the foregoing, purchasable upon
exercise of such warrants;
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the price at which and the currency or currencies in which the
securities or other rights purchasable upon exercise of such
warrants may be purchased;
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the date on which the right to exercise such warrants shall
commence and the date on which such right shall expire;
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if applicable, the minimum or maximum amount of such warrants
which may be exercised at any one time;
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if applicable, the designation and terms of the securities with
which such warrants are issued and the number of such warrants
issued with each such security;
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if applicable, the date on and after which such warrants and the
related securities will be separately transferable;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of any material U.S. federal
income tax considerations; and
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any other terms of such warrants, including terms, procedures
and limitations relating to the exchange and exercise of such
warrants.
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PLAN OF
DISTRIBUTION
We may sell the offered securities in and outside the United
States (1) through underwriters or dealers,
(2) directly to purchasers, including our affiliates,
(3) through agents or (4) through a combination of any
of these methods. The prospectus supplement will include the
following information:
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the terms of the offering;
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the names of any underwriters or agents;
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the name or names of any managing underwriter or underwriters;
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the purchase price of the securities from us;
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the net proceeds to us from the sale of the securities;
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any delayed delivery arrangements;
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any underwriting discounts, commissions and other items
constituting underwriters compensation;
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any initial public offering price;
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any discounts or concessions allowed or reallowed or paid to
dealers; and
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any commissions paid to agents.
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Sale
Through Underwriters or Dealers
If we use underwriters in the sale, the underwriters will
acquire the securities for their own account. The underwriters
may resell the securities from time to time in one or more
transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the
time of sale. Underwriters may offer securities to the public
either through underwriting syndicates represented by one or
more managing underwriters or directly by one or more firms
acting as underwriters. Unless we inform you otherwise in the
prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions,
and the underwriters will be obligated to purchase all the
offered securities if they purchase any of them. The
underwriters may change from time to time any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers.
During and after an offering through underwriters, the
underwriters may purchase and sell the securities in the open
market. These transactions may include overallotment and
stabilizing transactions and purchases to cover syndicate short
positions created in connection with the offering. The
underwriters may also impose a penalty bid, which means that
selling concessions allowed to syndicate members or other
broker-dealers for the offered securities sold for their account
may be reclaimed by the syndicate if the offered securities are
repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or
otherwise affect the market price of the offered securities,
which may be higher than the price that might otherwise prevail
in the open market. If commenced, the underwriters may
discontinue these activities at any time.
If we use dealers in the sale of securities, we will sell the
securities to them as principals. They may then resell those
securities to the public at varying prices determined by the
dealers at the time of resale. The dealers participating in any
sale of the securities may be deemed to be underwriters within
the meaning of the Securities Act, with respect to any sale of
those securities. We will include in the prospectus supplement
the names of the dealers and the terms of the transaction.
Direct
Sales and Sales Through Agents
We may sell the securities directly. In that event, no
underwriters or agents would be involved. We may also sell the
securities through agents we designate from time to time. In the
prospectus supplement, we will name any agent involved in the
offer or sale of the offered securities, and we will describe
any commissions payable by us to the agent. Unless we inform you
otherwise in the prospectus supplement, any agent will agree to
use its reasonable best efforts to solicit purchases for the
period of its appointment.
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We may sell the securities directly to institutional investors
or others who may be deemed to be underwriters within the
meaning of the Securities Act with respect to any sale of those
securities. We will describe the terms of any such sales in the
prospectus supplement.
Remarketing
We may offer and sell any of the offered securities in
connection with a remarketing upon their purchase, in accordance
with a redemption or repayment by their terms or otherwise by
one or more remarketing firms acting as principals for their own
accounts or as our agents. We will identify any remarketing
firm, the terms of any remarketing agreement and the
compensation to be paid to the remarketing firm in the
prospectus supplement. Remarketing firms may be deemed
underwriters under the Securities Act.
Derivative
Transactions
We may enter into derivative transactions with third parties, or
sell securities not covered by this prospectus to third parties
in privately negotiated transactions. If the applicable
prospectus supplement indicates, in connection with those
derivatives, the third parties may sell securities covered by
this prospectus and the applicable prospectus supplement,
including in short sale transactions. If so, the third parties
may use securities pledged by us or borrowed from us or others
to settle those sales or to close out any related open
borrowings of stock, and may use securities received from us in
settlement of those derivatives to close out any related open
borrowings of stock. The third parties in these sale
transactions will be underwriters and, if not identified in this
prospectus, will be identified in the applicable prospectus
supplement or in a post-effective amendment to the registration
statement of which this prospectus forms a part.
General
Information
We may have agreements with the remarketing firms, agents,
dealers and underwriters to indemnify them against certain civil
liabilities, including liabilities under the Securities Act, or
to contribute with respect to payments that the agents, dealers
or underwriters may be required to make. Such firms, agents,
dealers and underwriters may be customers of, engage in
transactions with or perform services for us in the ordinary
course of their businesses.
Each series of offered securities, other than the common stock,
which is listed on the NYSE, will have no established trading
market. We may elect to list any series of offered securities on
an exchange, but we are not obligated to do so. It is possible
that one or more underwriters may make a market in a series of
offered securities. However, they will not be obligated to do so
and may discontinue market making at any time without notice. We
cannot assure you that a liquid trading market for any of our
offered securities will develop.
WHERE YOU
CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange
Act, and in accordance therewith we file annual, quarterly and
current reports, proxy statements and other information with the
SEC. You may read and copy any reports, statements or other
information we file with the SEC at its public reference room at
100 F Street, N.E., Washington, D.C. 20549. You
may obtain information on the operation of the Public Reference
Room by calling the SEC at
1-800-SEC-0330.
Our SEC filings are also available to the public from commercial
document retrieval services and at the worldwide web site
maintained by the SEC at
http://www.sec.gov
.
You may also inspect those reports, proxy statements and other
information concerning us at the offices of the NYSE,
20 Broad Street, New York, New York 10005, on which shares
of our common stock are currently listed.
We have filed with the SEC a registration statement on
Form S-3
relating to the securities covered by this prospectus. This
prospectus is a part of the registration statement and does not
contain all the information in the registration statement.
Whenever a reference is made in this prospectus to a contract or
other document of ours or one of our subsidiaries, the reference
is only a summary and you should refer to the exhibits that are
a part of the registration statement for a copy of the contract
or other document. You may review a copy of the registration
statement and all of its exhibits at the SECs public
reference room in Washington, D.C., as well as through the
SECs web site.
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows information to be incorporated by
reference into this prospectus, which means that important
information can be disclosed to you by referring you to another
document filed separately by us with the SEC. The information
incorporated by reference is deemed to be part of this
prospectus, except for any information superseded by information
in this prospectus. The information incorporated by reference is
an important part of this prospectus, and information that we
file later with the SEC will automatically update and supersede
this information. This prospectus incorporates by reference the
following documents (other than documents or information deemed
to have been furnished and not filed in accordance with SEC
rules):
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our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2008, as amended by
our Current Report on Form 8-K filed on December 11,
2009;
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our Quarterly Reports on
Form 10-Q
for the quarters ended March 31, 2009, June 30, 2009
and September 30, 2009;
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our Current Reports on
Form 8-K
filed with the SEC on February 11, 2009, February 18,
2009, March 2, 2009, April 13, 2009, April 30,
2009, May 21, 2009, July 16, 2009, October 27,
2009, November 20, 2009, December 8, 2009 and
December 11, 2009, and on
Form 8-K/A
filed with the SEC on February 25, 2009, in each case other
than information furnished under Items 2.02 or 7.01 of Form
8-K; and
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the description of our common stock, par value $0.01 per share,
under the heading Description of Capital Stock,
contained in our Preliminary Information Statement filed as
Exhibit 99.1 to Amendment No. 5 to our Registration
Statement on Form 10, filed with the SEC on April 22,
2008.
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In addition, all documents that we file with the SEC on or after
the date hereof under Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act (other than information furnished under
Items 2.02 or 7.01 of
Form 8-K)
will be incorporated by reference until the offering or
offerings to which this prospectus relates are completed.
You may obtain without charge a copy of documents that are
incorporated by reference in this prospectus by requesting them
in writing at the following address: Dr Pepper Snapple Group,
Inc., 5301 Legacy Drive, Plano, Texas 75024, Attn: Investor
Relations. Our telephone number at such address is
(972) 673-7000.
These documents may also be accessed through our website at
www.drpeppersnapplegroup.com
or as described under the
heading
Where You Can Find More Information
above. Information contained on our website is not intended to
be incorporated by reference in this prospectus and you should
not consider that information a part of this prospectus.
LEGAL
MATTERS
Baker Botts L.L.P., Dallas, Texas, will pass on the legality of
the securities offered through this prospectus. Any
underwriters, dealers or agents will be advised about legal
matters relating to any offering by Mayer Brown LLP, Chicago,
Illinois.
EXPERTS
The consolidated financial statements incorporated in this
prospectus by reference from Dr Pepper Snapple Group,
Inc.s Current Report on
Form 8-K
filed on December 11, 2009, have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their report, which is
incorporated herein by reference (which report expresses an
unqualified opinion on those consolidated financial statements
and includes an explanatory paragraph regarding the allocation
of certain general corporate overhead costs through May 7,
2008 from Cadbury Schweppes plc and Dr Pepper Snapple
Group, Inc.s change in method of accounting for
uncertainties in income taxes as of January 1, 2007). Such
consolidated financial statements have been so incorporated in
reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
23
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
ITEM 14.
|
Other
Expenses of Issuance and Distribution
|
The following table sets forth expenses payable by us in
connection with the offering of the securities being registered,
other than discounts and commissions.
|
|
|
|
|
Securities and Exchange Commission registration fee
|
|
|
(1
|
)
|
Printing fees
|
|
|
(1
|
)
|
Legal fees and expenses
|
|
|
(1
|
)
|
Accounting fees and expenses
|
|
|
(1
|
)
|
Transfer Agents fees
|
|
|
(1
|
)
|
Trustees fees and expenses
|
|
|
(1
|
)
|
Rating agency fees
|
|
|
(1
|
)
|
Miscellaneous
|
|
|
(1
|
)
|
|
|
|
|
|
Total
|
|
|
(1
|
)
|
|
|
|
|
|
|
|
|
(1)
|
|
Estimated expenses are not presently known. The foregoing sets
forth the general categories of expenses (other than
underwriting discounts and commissions) that we anticipate to
incur in connection with the offering of securities under this
registration statement. An estimate of the aggregate expenses in
connection with the issuance and distribution of the securities
being offered will be included in the applicable prospectus
supplement.
|
|
|
ITEM 15.
|
Indemnification
of Directors and Officers
|
Set forth below is a description of certain provisions of the
Amended and Restated Certificate of Incorporation (the
Certificate of Incorporation) of Dr Pepper Snapple
Group, Inc. (the Company) and the Delaware General
Corporation Law (the DGCL). This description is
intended as a summary only and is qualified in its entirety by
reference to the Certificate of Incorporation and the DGCL.
Delaware
General Corporation Law
Section 145 of the DGCL provides that a corporation may
indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership
or other enterprise, against all expenses (including
attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by them in
connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interest of the
corporation and, with respect to any criminal action or
proceeding, if he or she had no reasonable cause to believe
their conduct was unlawful. Section 145 further provides
that a corporation similarly may indemnify any such person
serving in any such capacity who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation
to procure a judgment in its favor, against expenses (including
attorneys fees) actually and reasonably incurred in
connection with the defense or settlement of the action or suit
if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may
be made against expenses in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation, unless and only to the extent that
the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
II-1
Certificate
of Incorporation
Limitation
on Liability of Directors
Pursuant to authority conferred by Section 102 of the DGCL,
Article Seventh of the Certificate of Incorporation
eliminates the personal liability of directors to us or our
stockholders for monetary damages for breach of fiduciary duty,
including, without limitation, directors serving on committees
of our board of directors, except to the extent such exemption
from liability or limitation thereof is not permitted under the
DGCL.
Indemnification
and Insurance
In accordance with Section 145 of the DGCL,
Article Eighth of the Certificate of Incorporation grants
our directors and officers a right to indemnification for all
expenses, liabilities and losses relating to civil, criminal,
administrative or investigative actions, suits or proceedings to
which they are a party (other than an action or suit by us or in
our right, in which case our directors and officers have a right
to indemnification for all expenses, except in respect of any
claim, issue or matter as to which such officer or director is
adjudged to be liable to us) (1) by reason of the fact that
they are or were our directors or officers, (2) by reason
of the fact that, while they are or were our directors or
officers, they are or were serving at our request as directors
or officers of another corporation, partnership, joint venture,
trust or entity or (3) by reason of any action alleged to
have been taken or omitted in such persons capacity as our
director or officer or in any other capacity while serving at
our request as directors or officers of another corporation,
partnership, joint venture, trust or entity.
Article Eighth of the Certificate of Incorporation further
provides for the mandatory advancement of expenses incurred by
officers and directors in defending such proceedings in advance
of their final disposition upon delivery to us by the indemnitee
of an undertaking to repay all amounts so advanced if it is
ultimately determined that such indemnitee is not entitled to be
indemnified under Article Eighth. We may not indemnify or
make advance payments to any person in connection with
proceedings initiated against us by such person without the
authorization of our board of directors.
In addition, Article Eighth of the Certificate of
Incorporation provides that directors and officers therein
described shall be indemnified to the fullest extent permitted
by the DGCL, and if the DGCL is subsequently amended to expand
further the indemnification or advancements permitted, then we
shall indemnify such directors and officers to the fullest
extent permitted by the DGCL, as so amended.
Article Eighth of the Certificate of Incorporation allows
the indemnification to continue after an indemnitee has ceased
to be our director or officer and to inure to the benefit of the
indemnitees heirs, executors and administrators.
Article Eighth of the Certificate of Incorporation further
provides that the right to indemnification is not exclusive of
any other right that any indemnitee may be entitled under any
law, any agreement or vote of stockholders or disinterested
directors or otherwise.
The Certificate of Incorporation authorizes us to purchase
insurance for our directors and officers and persons who serve
at our request as directors, officers, employees or agents of
another corporation, partnership, joint venture, trust or entity
against any liability incurred in such capacity, whether or not
we would have the power to indemnify such persons against such
expense or liability under the DGCL. We intend to maintain
insurance coverage for our officers and directors as well as
insurance coverage to reimburse us for potential costs of our
corporate indemnification of directors and officers.
The Exhibits listed on the accompanying Exhibit Index are
filed as part hereof, or incorporated by reference into, this
registration statement.
II-2
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however
, that paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the
Commission by the registrants pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by a registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser
II-3
with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities: Each of the
undersigned registrants undertakes that in a primary offering of
securities of such undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, such undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of such
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of such undersigned registrant or used
or referred to by such undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
such undersigned registrant or its securities provided by or on
behalf of such undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by such undersigned registrant to the purchaser.
(b) The undersigned registrants hereby undertake that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of a registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrants
pursuant to the foregoing provisions, or otherwise, each
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of any registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, such registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
(d) Each of the undersigned registrants hereby undertakes
to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with
the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Plano, State of Texas, on December 14, 2009.
DR PEPPER SNAPPLE GROUP, INC.
|
|
|
|
By:
|
/s/ James
L. Baldwin, Jr.
|
James L. Baldwin, Jr.
Executive Vice President & General Counsel
POWER OF
ATTORNEY
Each person whose signature appears below constitutes and
appoints Larry D. Young and James L. Baldwin and each of them,
as his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person
and in his or her name, place and stead, in any and all
capacities, to sign any or all further amendments (including
post-effective amendments) to this registration statement, and
to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his or her substitute
or substitutes, may lawfully do or cause to be done by virtue
hereof. This Power of Attorney may be signed in any number of
counterparts, each of which shall constitute an original and all
of which, taken together, shall constitute one Power of Attorney.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated and on the
14
th
day
of December, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Larry
D. Young
Larry
D. Young
|
|
President, Chief Executive Officer and Director (Principal
Executive Officer)
|
|
|
|
/s/ John
O. Stewart
John
O. Stewart
|
|
Executive Vice President and Chief Financial Officer (Principal
Financial Officer)
|
|
|
|
/s/ Angela
Stephens
Angela
Stephens
|
|
Senior Vice President and Controller
(Principal Accounting Officer)
|
|
|
|
/s/ Wayne
R. Sanders
Wayne
R. Sanders
|
|
Chairman of the Board
|
|
|
|
/s/ John
L. Adams
John
L. Adams
|
|
Director
|
|
|
|
/s/ Terence
D. Martin
Terence
D. Martin
|
|
Director
|
II-5
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Pamela
H. Patsley
Pamela
H. Patsley
|
|
Director
|
|
|
|
/s/ Ronald
G. Rogers
Ronald
G. Rogers
|
|
Director
|
|
|
|
/s/ Jack
L. Stahl
Jack
L. Stahl
|
|
Director
|
|
|
|
/s/ M.
Anne Szostak
M.
Anne Szostak
|
|
Director
|
|
|
|
/s/ Michael
F. Weinstein
Michael
F. Weinstein
|
|
Director
|
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each
of the following registrants certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Plano, State of Texas, on December 14, 2009.
234DP AVIATION, LLC
A&W CONCENTRATE COMPANY
AMERICAS BEVERAGES MANAGEMENT GP
AMTRANS, INC.
BERKELEY SQUARE U.S., INC.
BEVERAGE INVESTMENTS LLC
BEVERAGES DELAWARE INC.
DP BEVERAGES INC.
DPS AMERICAS BEVERAGES INVESTMENTS, INC.
DPS AMERICAS BEVERAGES, LLC
DPS BEVERAGES, INC.
DPS BUSINESS SERVICES, INC.
DPS FINANCE II, INC.
DPS HOLDINGS INC.
DPS HOLDINGS U.S.
DR PEPPER COMPANY
DR
PEPPER/SEVEN-UP
BEVERAGE SALES COMPANY
DR PEPPER/SEVEN UP MANUFACTURING COMPANY
DR PEPPER/SEVEN UP, INC.
HIGH RIDGE INVESTMENTS US, INC.
INTERNATIONAL BEVERAGE INVESTMENTS GP
INTERNATIONAL INVESTMENTS MANAGEMENT LLC
MOTTS GENERAL PARTNERSHIP
MOTTS LLP
MSSI LLC
NANTUCKET ALLSERVE, INC.
NUTHATCH TRADING US, INC.
PACIFIC SNAPPLE DISTRIBUTORS, INC.
ROYAL CROWN COMPANY, INC.
SNAPPLE BEVERAGE CORP.
SNAPPLE DISTRIBUTORS, INC.
THE AMERICAN BOTTLING COMPANY
Larry D. Young
President and Chief Executive Officer
II-7
POWER OF
ATTORNEY
Each person whose signature appears below constitutes and
appoints Larry D. Young and James L. Baldwin and each
of them, as his or her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for
such person and in his or her name, place and stead, in any and
all capacities, to sign any or all further amendments (including
post-effective amendments) to this registration statement on
behalf of the additional registrants listed on the previous
page, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto said
attorney-in-fact
and agent, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and
confirming all that said
attorney-in-fact
and agent, or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof. This Power of Attorney
may be signed in any number of counterparts, each of which shall
constitute an original and all of which, taken together, shall
constitute one Power of Attorney.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
on behalf of the additional registrants listed on the previous
page in the capacities indicated and on the
14
th
day
of December, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Larry
D. Young
Larry
D. Young
|
|
President, Chief Executive Officer and Director (Principal
Executive Officer)
|
|
|
|
/s/ John
O. Stewart
John
O. Stewart
|
|
Executive Vice President, Chief Financial Officer and
Director
(Principal Financial Officer)
|
|
|
|
/s/ Angela
Stephens
Angela
Stephens
|
|
Senior Vice President and Controller
(Principal Accounting Officer)
|
|
|
|
/s/ James
L. Baldwin
James
L. Baldwin
|
|
Director
|
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Plano, State of Texas, on December 14, 2009.
SPLASH TRANSPORT, INC.
Derry Hobson
President
POWER OF
ATTORNEY
Each person whose signature appears below constitutes and
appoints Larry D. Young and James L. Baldwin and each of them,
as his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person
and in his or her name, place and stead, in any and all
capacities, to sign any or all further amendments (including
post-effective amendments) to this registration statement, and
to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his or her substitute
or substitutes, may lawfully do or cause to be done by virtue
hereof. This Power of Attorney may be signed in any number of
counterparts, each of which shall constitute an original and all
of which, taken together, shall constitute one Power of Attorney.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated and on the
14
th
day
of December, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Derry
Hobson
Derry
Hobson
|
|
President and Director (Principal Executive Officer)
|
|
|
|
/s/ Greg
Collins
Greg
Collins
|
|
Vice President, Treasurer and Director (Principal Financial
Officer and Principal Accounting Officer)
|
|
|
|
/s/ Robert
Callan
Robert
Callan
|
|
Vice President, Secretary and Director
|
II-9
INDEX TO
EXHIBITS
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Exhibit
|
|
|
1
|
.1**
|
|
Form of Underwriting Agreement.
|
|
3
|
.1
|
|
Amended and Restated Certificate of Incorporation of
Dr Pepper Snapple Group, Inc. (filed as Exhibit 3.1 to
the Companys Current Report on
Form 8-K
(filed on May 12, 2008) and incorporated herein by
reference).
|
|
3
|
.2
|
|
Amended and Restated By-Laws of Dr Pepper Snapple Group,
Inc. (filed as Exhibit 3.2 to the Companys Current
Report on
Form 8-K
(filed on July 16, 2009) and incorporated herein by
reference).
|
|
3
|
.3
|
|
Certificate of Incorporation of AWCC Acquisition Corp. (now
known as A&W Concentrate Company) (filed as
Exhibit 3.3 to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.4
|
|
Certificate of Amendment to the Certificate of Incorporation of
AWCC Acquisition Corp. (now known as A&W Concentrate
Company) (filed as Exhibit 3.4 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.5
|
|
Certificate of Ownership and Merger merging A&W Brands,
Inc. (now known as A&W Concentrate Company) into AWCC
Acquisition Corp. (filed as Exhibit 3.5 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.6
|
|
Certificate of Amendment to the Certificate of Incorporation of
A&W Brands, Inc. (now known as A&W Concentrate
Company) (filed as Exhibit 3.6 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.7
|
|
Certificate of Amendment to the Certificate of Incorporation of
A&W Brands, Inc. (now known as A&W Concentrate
Company) (filed as Exhibit 3.7 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.8
|
|
By-Laws of A&W Concentrate Company (filed as
Exhibit 3.8 to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.9
|
|
Articles of Incorporation of Joyce Advertising, Inc. (now known
as AmTrans, Inc.) (filed as Exhibit 3.9 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.10
|
|
Articles of Amendment to the Articles of Incorporation of Joyce
Advertising, Inc. (now known as AmTrans, Inc.) (filed as
Exhibit 3.10 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.11
|
|
Articles of Amendment to the Articles of Incorporation of SBI
Transportation, Inc. (now known as AmTrans, Inc.) (filed as
Exhibit 3.11 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.12
|
|
By-Laws of AmTrans, Inc. (filed as Exhibit 3.12 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.13
|
|
Certificate of Incorporation of Berkeley Square US, Inc.
(filed as Exhibit 3.13 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.14
|
|
Bylaws of Berkeley Square US, Inc. (filed as Exhibit 3.14
to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.15
|
|
Certificate of Formation of Beverage Investments LLC (filed as
Exhibit 3.15 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.16
|
|
Bylaws of Beverage Investments LLC (filed as Exhibit 3.16
to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.17
|
|
Articles of Incorporation of Brooks Acquisition Corporation (now
known as Beverage Management, Inc.) (filed as Exhibit 3.17
to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.18
|
|
Certificate of Merger of Beverage Management, Inc. and Brooks
Acquisition Corporation (filed as Exhibit 3.18 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.19
|
|
Certificate of Amendment to the Articles of Incorporation of
Beverage Management, Inc. (filed as Exhibit 3.19 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Exhibit
|
|
|
3
|
.20
|
|
Certificate of Merger merging Beverage Management, Inc. with and
into The American Bottling Company (filed as Exhibit 3.20
to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.21
|
|
Certificate of Incorporation of Cadbury Adams Financing
Corporation (now known as DPS Finance II, Inc.) (filed as
Exhibit 3.21 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.22
|
|
Certificate of Correction of the Certificate of Incorporation of
Cadbury Adams Financing Corporation (now known as DPS
Finance II, Inc.) (filed as Exhibit 3.22 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.23
|
|
Certificate of Change of Registered Agent and Registered Office
of Cadbury Adams Finance Corporation (now known as DPS
Finance II, Inc.) (filed as Exhibit 3.23 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.24
|
|
Certificate of Amendment to the Certificate of Incorporation of
Cadbury Adams Finance Corporation (now known as DPS
Finance II, Inc.) (filed as Exhibit 3.24 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.25
|
|
Certificate of Amendment to the Certificate of Incorporation of
Cadbury Adams Finance Corporation (now known as DPS
Finance II, Inc.) (filed as Exhibit 3.25 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.26
|
|
By-Laws of Cadbury Adams Finance Corporation (now known as DPS
Finance II, Inc.) (filed as Exhibit 3.26 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.27
|
|
Certificate of Incorporation of Cadbury Beverages Delaware Inc.
(now known as Beverages Delaware Inc.) (filed as
Exhibit 3.27 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.28
|
|
Certificate of Amendment to the Certificate of Incorporation of
Cadbury Beverages Delaware Inc. (now known as Beverages Delaware
Inc.) (filed as Exhibit 3.28 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.29
|
|
Certificate of Amendment to the Certificate of Incorporation of
Cadbury Beverages Delaware Inc. (now known as Beverages Delaware
Inc.) (filed as Exhibit 3.29 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.30
|
|
By-Laws of Cadbury Beverages Delaware Inc. (now known as
Beverages Delaware Inc.) (filed as Exhibit 3.30 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.31
|
|
Certificate of Incorporation of A&W Distributing Company
(now known as DP Beverages Inc.) (filed as Exhibit 3.31 to
the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.32
|
|
Certificate of Amendment to the Certificate of Incorporation of
A&W Distribution Company (now known as DP Beverages Inc.)
(filed as Exhibit 3.32 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.33
|
|
Certificate of Ownership and Merger merging A&W
Concentrates, Inc. into A&W Beverages, Inc. (now known as
DP Beverages Inc.) (filed as Exhibit 3.33 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.34
|
|
Certificate of Amendment to the Certificate of Incorporation of
A&W Beverages, Inc. (now known as DP Beverages Inc.) (filed
as Exhibit 3.34 to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.35
|
|
Certificate of Amendment to the Certificate of Incorporation of
Cadbury Beverages Inc. (now known as DP Beverages Inc.) (filed
as Exhibit 3.35 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Exhibit
|
|
|
3
|
.36
|
|
Certificate of Amendment to the Certificate of Incorporation of
Cadbury Beverages Inc. (now known as DP Beverages Inc.) (filed
as Exhibit 3.36 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.37
|
|
By-Laws of Cadbury Beverages Inc. (now known as DP Beverages
Inc.) (filed as Exhibit 3.37 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.38
|
|
Certificate of Incorporation of Cadbury Schweppes Americas
Beverages, Inc. (now known as DPS Beverages, Inc.) (filed as
Exhibit 3.38 to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.39
|
|
Certificate of Amendment to the Certificate of Incorporation of
Cadbury Schweppes Americas Beverages, Inc. (now known as DPS
Beverages, Inc.) (filed as Exhibit 3.39 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.40
|
|
By-Laws of Cadbury Schweppes Americas Beverages, Inc. (now known
as DPS Beverages, Inc.) (filed as Exhibit 3.40 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.41
|
|
Certificate of Incorporation of Cadbury Schweppes Americas
Investments Inc. (now known as DPS Americas Beverages
Investments, Inc.) (filed as Exhibit 3.41 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.42
|
|
Certificate of Formation of Cadbury Schweppes Americas
Investments LLC (now known as DPS Americas Beverages
Investments, Inc.) (filed as Exhibit 3.42 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.43
|
|
Certificate of Conversion to Corporation of Cadbury Schweppes
Americas Investments LLC (now known as DPS Americas Beverages
Investments, Inc.) (filed as Exhibit 3.43 to the
Companys Registration Statement on Form S-4 (filed
November 26, 2008) and incorporated herein by reference).
|
|
3
|
.44
|
|
Certificate of Amendment to the Certificate of Incorporation of
Cadbury Schweppes Americas Investments Inc. (now known as DPS
Americas Beverages Investments, Inc.) (filed as
Exhibit 3.44 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.45
|
|
By-Laws of Cadbury Schweppes Americas Investments Inc. (now
known as DPS Americas Beverages Investments, Inc.) (filed as
Exhibit 3.45 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.46
|
|
Certificate of Formation of Cadbury Schweppes Americas LLC (now
known as DPS Americas Beverages, LLC) (filed as
Exhibit 3.46 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.47
|
|
Certificate of Conversion to Corporation of Cadbury Schweppes
Americas LLC (now known as DPS Americas Beverages, LLC) (filed
as Exhibit 3.47 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.48
|
|
Certificate of Incorporation of Cadbury Schweppes Americas Inc.
(now known as DPS Americas Beverages, LLC) (filed as
Exhibit 3.48 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.49
|
|
Certificate of Amendment to the Certificate of Incorporation of
Cadbury Schweppes Americas Inc. (now known as DPS Americas
Beverages, LLC) (filed as Exhibit 3.49 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.50
|
|
Certificate of Conversion to Limited Liability Company of
Cadbury Schweppes Americas Inc. (now known as DPS Americas
Beverages, LLC) (filed as Exhibit 3.50 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.51
|
|
Certificate of Formation of Cadbury Schweppes Americas LLC (now
known as DPS Americas Beverages, LLC) (filed as
Exhibit 3.51 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Exhibit
|
|
|
3
|
.52
|
|
Certificate of Amendment to the Certificate of Formation of
Cadbury Schweppes Americas LLC (now DPS Americas Beverages, LLC)
(filed as Exhibit 3.52 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.53
|
|
Limited Liability Company Agreement of DPS Americas Beverages,
LLC (filed as Exhibit 3.53 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.54
|
|
Bylaws of DPS Americas Beverages, LLC (filed as
Exhibit 3.54 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.55
|
|
Restated Certificate of Incorporation of Dr Pepper/Seven Up
Bottling Group, Inc. (now known as Dr Pepper Snapple
Bottling Group, Inc.) (filed as Exhibit 3.55 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.56
|
|
Certificate of Amendment to the Amended and Restated Certificate
of Incorporation of Dr Pepper/Seven Up Bottling Group, Inc.
(now known as Dr Pepper Snapple Bottling Group, Inc.)
(filed as Exhibit 3.56 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.57
|
|
Certificate of Amendment to the Amended & Restated
Certificate of Incorporation of Cadbury Schweppes Bottling
Group, Inc. (now known as Dr Pepper Snapple Bottling Group,
Inc.) (filed as Exhibit 3.57 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.58
|
|
Certificate of Ownership and Merger merging Dr Pepper
Snapple Bottling Group, Inc. with and into The American Bottling
Company (filed as Exhibit 3.58 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.59
|
|
Amended & Restated Agreement of General Partnership of
Cadbury Schweppes Holdings (U.S.) (now known as DPS Holdings
U.S.) (filed as Exhibit 3.64 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.60
|
|
Amendment No. 1 to the Amended and Restated Agreement of General
Partnership of Cadbury Schweppes Holdings (U.S.) (now known as
DPS Holdings U.S.) (filed as Exhibit 3.65 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.61
|
|
Certificate of Incorporation of Cadbury Beverages International
Inc. (now known as DPS Business Services, Inc.) (filed as
Exhibit 3.66 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.62
|
|
Certificate of Amendment to the Certificate of Incorporation of
Cadbury Beverages International Inc. (now known as DPS Business
Services, Inc.) (filed as Exhibit 3.67 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.63
|
|
Certificate of Amendment to the Amended & Restated
Certificate of Incorporation of Cadbury Schweppes SBS, Inc. (now
known as DPS Business Services, Inc.) (filed as
Exhibit 3.68 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.64
|
|
By-Laws of Cadbury Beverages International Inc. (now known as
DPS Business Services, Inc.) (filed as Exhibit 3.69 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.65
|
|
Restated Certificate of Incorporation of Cadbury Schweppes Inc.
(now known as DPS Holdings Inc.) (filed as Exhibit 3.70 to
the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.66
|
|
Certificate of Amendment to the Restated Certificate of
Incorporation of Cadbury Schweppes Inc. (now known as DPS
Holdings Inc.) (filed as Exhibit 3.71 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.67
|
|
Certificate of Amendment to the Certificate of Incorporation of
Cadbury Beverages Inc. (now known as DPS Holdings Inc.) (filed
as Exhibit 3.72 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Exhibit
|
|
|
3
|
.68
|
|
Certificate of Amendment to the Amended & Restated
Certificate of Incorporation of CBI Holdings Inc. (now known as
DPS Holdings Inc.) (filed as Exhibit 3.73 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.69
|
|
Amended and Restated By-Laws of CBI Holdings Inc. (now known as
DPS Holdings Inc.) (filed as Exhibit 3.74 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.70
|
|
Restated Certificate of Incorporation of Dr Pepper Bottling
Company of Texas (filed as Exhibit 3.75 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.71
|
|
Certificate of Amendment to the Restated Certificate of
Incorporation of Dr Pepper Bottling Company of Texas (filed
as Exhibit 3.76 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.72
|
|
Certificate of Merger merging Dr Pepper Bottling Company of
Texas with and into The American Bottling Company (filed as
Exhibit 3.77 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by reference).
|
|
3
|
.73
|
|
Restated Articles of Incorporation of Weinstein Beverage Co. of
Spokane, Inc. (now known as Dr Pepper Bottling Company of
Spokane, Inc.) (filed as Exhibit 3.78 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.74
|
|
Amendment to the Articles of Incorporation of Weinstein Beverage
Co. of Spokane, Inc. (now known as Dr Pepper Bottling
Company of Spokane, Inc.) (filed as Exhibit 3.79 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.75
|
|
Certificate of Ownership and Merger merging Dr Pepper
Bottling Company of Spokane, Inc. with and into Dr Pepper
Bottling Company of Texas (filed as Exhibit 3.80 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.76
|
|
Certificate of Incorporation of Dr Pepper Company (filed as
Exhibit 3.81 to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.77
|
|
Articles of Incorporation of Dr Pepper Beverage Sales
Company (now known as
Dr Pepper/Seven-Up
Beverage Sales Company) (filed as Exhibit 3.82 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.78
|
|
Articles of Amendment to the Certificate of Incorporation of Dr
Pepper Beverage Sales Company (now known as
Dr Pepper/Seven-Up
Beverage Sales Company) (filed as Exhibit 3.83 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.79
|
|
Bylaws of Dr Pepper Beverage Sales Company (now known as Dr
Pepper/Seven Up Beverage Sales Company) (filed as
Exhibit 3.84 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.80
|
|
Certificate of Incorporation of Waco Manufacturing Company (now
known as Dr Pepper/Seven Up Manufacturing Company) (filed
as Exhibit 3.85 to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.81
|
|
Certificate of Amendment to the Certificate of Incorporation of
Waco Manufacturing Company (now known as Dr Pepper/Seven Up
Manufacturing Company) (filed as Exhibit 3.86 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.82
|
|
Bylaws of Waco Manufacturing Company (now known as
Dr Pepper/Seven Up Manufacturing Company) (filed as
Exhibit 3.87 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.83
|
|
Amended & Restated Certificate of Incorporation of Dr
Pepper/Seven-Up
Companies, Inc. (now known as Dr Pepper/Seven Up, Inc.)
(filed as Exhibit 3.88 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Exhibit
|
|
|
3
|
.84
|
|
Certificate of Merger merging Dr Pepper/Seven Up
Corporation with and into
Dr Pepper/Seven-Up
Companies, Inc. under the name of Dr Pepper/Cadbury North
America, Inc. (now known as Dr Pepper/Seven Up, Inc.)
(filed as Exhibit 3.89 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.85
|
|
Certificate of Amendment to the Restated Certificate of
Incorporation of Dr Pepper/Cadbury North America, Inc. (now
known as Dr Pepper/Seven Up, Inc.) (filed as
Exhibit 3.90 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.86
|
|
Certificate of Amendment of the Restated Certificate of
Incorporation of Dr Pepper/Seven Up, Inc. (filed as
Exhibit 3.91 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.87
|
|
Certificate of Retirement of Shares of Common Stock of Dr
Pepper/Seven Up, Inc. (filed as Exhibit 3.92 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.88
|
|
Amended and Restated Bylaws of Dr Pepper/Seven Up, Inc.
(filed as Exhibit 3.93 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.89
|
|
Certificate of Incorporation of High Ridge Investments US, Inc
(filed as Exhibit 3.94 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.90
|
|
Bylaws of High Ridge Investments US, Inc. (filed as
Exhibit 3.95 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.91
|
|
Certificate of Formation of International Investments Management
LLC (filed as Exhibit 3.96 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.92
|
|
Limited Liability Company Agreement of International Investments
Management LLC (filed as Exhibit 3.97 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.93
|
|
Bylaws of International Investments Management LLC (filed as
Exhibit 3.98 to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.94
|
|
Amended & Restated General Partnership Agreement of
Motts General Partnership (filed as Exhibit 3.99 to
the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.95
|
|
Certificate of Incorporation of Motts Inc. (now known as
Motts LLP) (filed as Exhibit 3.100 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.96
|
|
Certificate of Conversion to General Partnership of Motts
Inc. (now known as Motts LLP) changing its name to
Motts Partners (filed as Exhibit 3.101 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.97
|
|
Statement of Qualification of Motts Partners changing its
name from Motts Partners to Motts LLP (filed as
Exhibit 3.102 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.98
|
|
Certificate of Partnership Existence of Motts Partners
(filed as Exhibit 3.103 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.99
|
|
Limited Liability Partnership Agreement of Motts LLP
(filed as Exhibit 3.104 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.100
|
|
Amendment No. 1 to the Limited Liability Partnership Agreement
of Motts LLP (filed as Exhibit 3.105 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Exhibit
|
|
|
3
|
.101
|
|
Certificate of Formation of MSSI LLC (filed as
Exhibit 3.106 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.102
|
|
Limited Liability Company Agreement of MSSI LLC (filed as
Exhibit 3.107 to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.103
|
|
Bylaws of MSSI LLC (filed as Exhibit 3.108 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.104
|
|
Articles of Organization of Nantucket Allserve, Inc. (filed as
Exhibit 3.109 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.105
|
|
Articles of Amendment to the Articles of Organization of
Nantucket Allserve, Inc. (filed as Exhibit 3.110 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.106
|
|
Articles of Amendment to the Articles of Organization of
Nantucket Allserve, Inc. (filed as Exhibit 3.111 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.107
|
|
Articles of Amendment to the Articles of Organization of
Nantucket Allserve, Inc. (filed as Exhibit 3.112 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.108
|
|
Amended Bylaws of Nantucket Allserve, Inc. (filed as
Exhibit 3.113 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by reference).
|
|
3
|
.109
|
|
Certificate of Incorporation of Nuthatch Trading US, Inc. (filed
as Exhibit 3.114 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.110
|
|
Bylaws of Nuthatch Trading US, Inc. (filed as Exhibit 3.115
to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.111
|
|
Articles of Incorporation of Groux Distribution, Inc. (now known
as Pacific Snapple Distributors, Inc.) (filed as
Exhibit 3.116 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.112
|
|
Certificate of Amendment to the Articles of Incorporation of
Groux Distribution, Inc. (now known as Pacific Snapple
Distributors, Inc.) (filed as Exhibit 3.117 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.113
|
|
Certificate of Amendment to the Articles of Incorporation of
Groux Beverage Corporation (now known as Pacific Snapple
Distributors, Inc.) (filed as Exhibit 3.118 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.114
|
|
Certificate of Amendment to the Articles of Incorporation of
Snapple Distributors of Orange County, Inc. (now known as
Pacific Snapple Distributors, Inc.) (filed as Exhibit 3.119
to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.115
|
|
Bylaws of Groux Distribution, Inc. (now known as Pacific Snapple
Distributors, Inc.) and Certificate of Amendment of Bylaws of
Pacific Snapple Distributors, Inc. (filed as Exhibit 3.120
to the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.116
|
|
Certificate of Incorporation of Royal Crown Cola Co. (now known
as Royal Crown Company, Inc.) (filed as Exhibit 3.121 to
the Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.117
|
|
Certificate of Amendment to the Certificate of Incorporation of
Royal Crown Cola Co. (now known as Royal Crown Company, Inc.)
(filed as Exhibit 3.122 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.118
|
|
Agreement and Plan of Merger of RC Leasing, Inc. with and into
Royal Crown Company, Inc. (filed as Exhibit 3.123 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.119
|
|
By-Laws of Royal Crown Company, Inc. (filed as
Exhibit 3.124 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Exhibit
|
|
|
3
|
.120
|
|
Articles of Incorporation of Seven Up Bottling Company of
San Francisco (filed as Exhibit 3.125 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.121
|
|
Certificate of Amendment to the Articles of Incorporation of
Seven Up Bottling Company of San Francisco (filed as
Exhibit 3.126 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.122
|
|
Agreement of Merger between Seven Up Bottling Company of
San Francisco and Seven Up Bottling Company of Oakland
(filed as Exhibit 3.127 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.123
|
|
Certificate of Ownership and Merger of Seven Up Bottling Company
of San Francisco with and into Dr Pepper Bottling
Company of Texas (filed as Exhibit 3.128 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.124
|
|
Certificate of Amended and Restated Certificate of Incorporation
of
Seven-Up/RC
Bottling Company of Southern California, Inc. (now know as
Seven-Up/RC
Bottling Company, Inc.) (filed as Exhibit 3.129 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.125
|
|
Certificate of Amendment to the Amended and Restated Certificate
of Incorporation of
Seven-Up/RC
Bottling Company of Southern California, Inc. (now know as
Seven-Up/RC
Bottling Company, Inc.) (filed as Exhibit 3.130 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.126
|
|
Certificate of Amendment to the Amended and Restated Certificate
of Incorporation of
Seven-Up/RC
Bottling Company of Southern California, Inc. (now know as
Seven-Up/RC
Bottling Company, Inc.) (filed as Exhibit 3.131 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.127
|
|
Certificate of Ownership and Merger merging
Seven-Up/RC
Bottling Company, Inc. with and into Dr Pepper Bottling
Company of Texas (filed as Exhibit 3.132 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.128
|
|
Restated Certificate of Incorporation of Snapple Holding Corp.
(now known as Snapple Beverage Corp.) (filed as
Exhibit 3.133 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.129
|
|
Certificate of Amendment to the Restated Certificate of
Incorporation of Snapple Holding Corp. (now known as Snapple
Beverage Corp.) (filed as Exhibit 3.134 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.130
|
|
Certificate of Ownership and Merger merging Snapple Beverage
Corp. into Snapple Holding Corp. under the name of Snapple
Beverage Corp. (filed as Exhibit 3.135 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.131
|
|
Certificate of Amendment of the Restated Certificate of
Incorporation of Snapple Beverage Corp. (filed as
Exhibit 3.136 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.132
|
|
Amended and Restated By-Laws of Snapple Beverage Corp. (filed as
Exhibit 3.137 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.133
|
|
Certificate of Incorporation of Snapple Distribution Corp. (now
known as Snapple Distributors, Inc.) (filed as
Exhibit 3.138 to the Companys Registration Statement
on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.134
|
|
Certificate of Ownership and Merger merging Mr. Natural, Inc.
into Snapple Distribution Corp. and changing the name of the
Corporation to Mr. Natural, Inc. (now known as Snapple
Distributors, Inc.) (filed as Exhibit 3.139 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.135
|
|
Certificate of Amendment to the Certificate of Incorporation of
Mr. Natural, Inc. (now known as Snapple Distributors, Inc.)
(filed as Exhibit 3.140 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Exhibit
|
|
|
3
|
.136
|
|
By-Laws of Mr. Natural, Inc. (now known as Snapple Distributors,
Inc.) (filed as Exhibit 3.141 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.137
|
|
Certificate of Incorporation of The American Bottling Company
(filed as Exhibit 3.146 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.138
|
|
Certificate of Retirement of Shares of Common Stock of The
American Bottling Company (filed as Exhibit 3.147 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.139
|
|
Certificate of Ownership and Merger merging Dr Pepper
Snapple Bottling Group, Inc. with and into The American Bottling
Company (filed as Exhibit 3.148 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.140
|
|
Amended and Restated By-Laws of The American Bottling Company
(filed as Exhibit 3.149 to the Companys Registration
Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.141
|
|
Statement of Partnership Existence of International Beverage
Investments GP (filed as Exhibit 3.150 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.142
|
|
Agreement of General Partnership of International Beverage
Investments GP (filed as Exhibit 3.151 to the
Companys Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.143
|
|
Agreement of General Partnership of Americas Beverages
Management GP (filed as Exhibit 3.152 to the Companys
Registration Statement on
Form S-4
(filed November 26, 2008) and incorporated herein by
reference).
|
|
3
|
.144*
|
|
Certificate of Incorporation of Splash Transport, Inc.
|
|
3
|
.145*
|
|
Bylaws of Splash Transport, Inc.
|
|
3
|
.146*
|
|
Certificate of Formation of 23 Aviation, LLC (now known as 234DP
Aviation, LLC).
|
|
3
|
.147*
|
|
Certificate of Amendment to Certificate of Formation of 23
Aviation, LLC (now known as 234DP Aviation, LLC).
|
|
3
|
.148*
|
|
Operating Agreement of 23 Aviation, LLC (now known as 234DP
Aviation, LLC).
|
|
3
|
.149*
|
|
Amendment No. 1 to the Operating Agreement of 23 Aviation,
LLC (now known as 234DP Aviation, LLC).
|
|
4
|
.1*
|
|
Form of Senior Indenture.
|
|
4
|
.2*
|
|
Form of Subordinated Indenture.
|
|
4
|
.3**
|
|
Form of Warrant Agreement.
|
|
5
|
.1*
|
|
Opinion of Baker Botts L.L.P.
|
|
12
|
.1*
|
|
Computation of Ratio of Earnings to Fixed Charges.
|
|
23
|
.1*
|
|
Consent of Deloitte & Touche LLP, Independent
Registered Public Accounting Firm.
|
|
23
|
.2*
|
|
Consent of Baker Botts L.L.P. (contained in Exhibit 5.1).
|
|
24
|
.1*
|
|
Powers of Attorney (set forth on signature page).
|
|
25
|
.1*
|
|
Form T-1
Statement of Eligibility under the Trust Indenture Act of
1939, as amended, in respect of the Senior Indenture.
|
|
25
|
.2***
|
|
Form T-1
Statement of Eligibility under the Trust Indenture Act of
1939, as amended, in respect of the Subordinated Indenture.
|
|
|
|
*
|
|
Filed herewith.
|
|
**
|
|
To be filed by amendment or as an exhibit with a subsequent
Current Report on
Form 8-K
in connection with a specific offering.
|
|
***
|
|
To be filed pursuant to Section 305(b)(2) of the
Trust Indenture of Act of 1939, as amended.
|
Exhibit 4.1
DR PEPPER SNAPPLE GROUP, INC.
and
WELLS FARGO BANK, N.A.,
as Trustee
INDENTURE
Dated as of
SENIOR DEBT SECURITIES
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
1
|
|
Section 1.1.
|
|
Definitions
|
|
|
1
|
|
Section 1.2.
|
|
Other Definitions
|
|
|
7
|
|
Section 1.3.
|
|
Incorporation by Reference of Trust Indenture Act
|
|
|
7
|
|
Section 1.4.
|
|
Rules of Construction
|
|
|
8
|
|
|
|
|
|
|
|
|
ARTICLE II THE SECURITIES
|
|
|
8
|
|
Section 2.1.
|
|
Form, Dating and Terms
|
|
|
8
|
|
Section 2.2.
|
|
Denominations
|
|
|
12
|
|
Section 2.3.
|
|
Forms Generally
|
|
|
12
|
|
Section 2.4.
|
|
Execution, Authentication, Delivery and Dating
|
|
|
12
|
|
Section 2.5.
|
|
Registrar and Paying Agent
|
|
|
14
|
|
Section 2.6.
|
|
Paying Agent to Hold Money in Trust
|
|
|
14
|
|
Section 2.7.
|
|
Holder Lists
|
|
|
15
|
|
Section 2.8.
|
|
Transfer and Exchange
|
|
|
15
|
|
Section 2.9.
|
|
Mutilated, Destroyed, Lost or Wrongfully Taken Securities
|
|
|
16
|
|
Section 2.10.
|
|
Outstanding Securities
|
|
|
16
|
|
Section 2.11.
|
|
Cancellation
|
|
|
17
|
|
Section 2.12.
|
|
Payment of Interest; Defaulted Interest
|
|
|
17
|
|
Section 2.13.
|
|
Temporary Securities
|
|
|
18
|
|
Section 2.14.
|
|
Persons Deemed Owners
|
|
|
19
|
|
Section 2.15.
|
|
Computation of Interest
|
|
|
19
|
|
Section 2.16.
|
|
Global Securities; Book-Entry Provisions
|
|
|
19
|
|
Section 2.17.
|
|
CUSIP Numbers, Etc
|
|
|
21
|
|
Section 2.18.
|
|
Original Issue Discount and Foreign-Currency Denominated Securities
|
|
|
21
|
|
|
|
|
|
|
|
|
ARTICLE III COVENANTS
|
|
|
22
|
|
Section 3.1.
|
|
Payment of Securities
|
|
|
22
|
|
Section 3.2.
|
|
Reports
|
|
|
22
|
|
Section 3.3.
|
|
Maintenance of Office or Agency
|
|
|
22
|
|
Section 3.4.
|
|
Corporate Existence
|
|
|
23
|
|
Section 3.5.
|
|
Compliance Certificate
|
|
|
23
|
|
Section 3.6.
|
|
Statement by Officers as to Default
|
|
|
23
|
|
Section 3.7.
|
|
Additional Amounts
|
|
|
23
|
|
|
|
|
|
|
|
|
ARTICLE IV SUCCESSORS
|
|
|
24
|
|
Section 4.1.
|
|
Merger, Consolidation or Sale of Assets
|
|
|
24
|
|
|
|
|
|
|
|
|
ARTICLE V REDEMPTION OF SECURITIES
|
|
|
25
|
|
Section 5.1.
|
|
Applicability of Article
|
|
|
25
|
|
Section 5.2.
|
|
Election to Redeem; Notice to Trustee
|
|
|
25
|
|
Section 5.3.
|
|
Selection by Trustee of Securities to Be Redeemed
|
|
|
25
|
|
i
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
Section 5.4.
|
|
Notice of Redemption
|
|
|
25
|
|
Section 5.5.
|
|
Deposit of Redemption Price
|
|
|
27
|
|
Section 5.6.
|
|
Securities Payable on Redemption Date
|
|
|
27
|
|
Section 5.7.
|
|
Securities Redeemed in Part
|
|
|
27
|
|
|
|
|
|
|
|
|
ARTICLE VI DEFAULTS AND REMEDIES
|
|
|
28
|
|
Section 6.1.
|
|
Events of Default
|
|
|
28
|
|
Section 6.2.
|
|
Acceleration
|
|
|
29
|
|
Section 6.3.
|
|
Other Remedies
|
|
|
30
|
|
Section 6.4.
|
|
Waiver of Past Defaults
|
|
|
30
|
|
Section 6.5.
|
|
Control by Majority
|
|
|
30
|
|
Section 6.6.
|
|
Limitation on Suits
|
|
|
31
|
|
Section 6.7.
|
|
Rights of Holders to Receive Payment
|
|
|
31
|
|
Section 6.8.
|
|
Collection Suit by Trustee
|
|
|
31
|
|
Section 6.9.
|
|
Trustee May File Proofs of Claim
|
|
|
31
|
|
Section 6.10.
|
|
Priorities
|
|
|
32
|
|
Section 6.11.
|
|
Undertaking for Costs
|
|
|
32
|
|
|
|
|
|
|
|
|
ARTICLE VII TRUSTEE
|
|
|
33
|
|
Section 7.1.
|
|
Duties of Trustee
|
|
|
33
|
|
Section 7.2.
|
|
Rights of Trustee
|
|
|
34
|
|
Section 7.3.
|
|
Individual Rights of Trustee
|
|
|
35
|
|
Section 7.4.
|
|
Trustees Disclaimer
|
|
|
35
|
|
Section 7.5.
|
|
Notice of Defaults
|
|
|
36
|
|
Section 7.6.
|
|
Reports by Trustee to Holders
|
|
|
36
|
|
Section 7.7.
|
|
Compensation and Indemnity
|
|
|
36
|
|
Section 7.8.
|
|
Replacement of Trustee
|
|
|
37
|
|
Section 7.9.
|
|
Successor Trustee by Merger
|
|
|
38
|
|
Section 7.10.
|
|
Eligibility; Disqualification
|
|
|
39
|
|
Section 7.11.
|
|
Preferential Collection of Claims Against Company
|
|
|
39
|
|
|
|
|
|
|
|
|
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
39
|
|
Section 8.1.
|
|
Option to Effect Legal Defeasance or Covenant Defeasance
|
|
|
39
|
|
Section 8.2.
|
|
Legal Defeasance and Discharge
|
|
|
39
|
|
Section 8.3.
|
|
Covenant Defeasance
|
|
|
40
|
|
Section 8.4.
|
|
Conditions to Legal or Covenant Defeasance
|
|
|
40
|
|
Section 8.5.
|
|
Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions
|
|
|
42
|
|
Section 8.6.
|
|
Repayment to Company
|
|
|
42
|
|
Section 8.7.
|
|
Reinstatement
|
|
|
43
|
|
|
|
|
|
|
|
|
ARTICLE IX AMENDMENTS
|
|
|
43
|
|
Section 9.1.
|
|
Without Consent of Holders
|
|
|
43
|
|
Section 9.2.
|
|
With Consent of Holders
|
|
|
44
|
|
Section 9.3.
|
|
Compliance with Trust Indenture Act
|
|
|
46
|
|
Section 9.4.
|
|
Revocation and Effect of Consents and Waivers
|
|
|
46
|
|
Section 9.5.
|
|
Notation on or Exchange of Securities
|
|
|
47
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
Section 9.6.
|
|
Trustee To Sign Amendments
|
|
|
47
|
|
|
|
|
|
|
|
|
ARTICLE X SECURITIES GUARANTEE
|
|
|
47
|
|
Section 10.1.
|
|
Securities Guarantee
|
|
|
47
|
|
Section 10.2.
|
|
Execution and Delivery of Securities Guarantees; Notations of Guarantees
|
|
|
49
|
|
Section 10.3.
|
|
Limitation on Liability; Termination, Release and Discharge
|
|
|
50
|
|
Section 10.4.
|
|
Limitation of Guarantors Liability
|
|
|
50
|
|
Section 10.5.
|
|
Contribution
|
|
|
51
|
|
Section 10.6.
|
|
Guarantors May Consolidate, etc., on Certain Terms.
|
|
|
51
|
|
|
|
|
|
|
|
|
ARTICLE XI SATISFACTION AND DISCHARGE
|
|
|
51
|
|
Section 11.1.
|
|
Satisfaction and Discharge
|
|
|
51
|
|
|
|
|
|
|
|
|
ARTICLE XII MISCELLANEOUS
|
|
|
52
|
|
Section 12.1.
|
|
Trust Indenture Act Controls
|
|
|
52
|
|
Section 12.2.
|
|
Notices
|
|
|
52
|
|
Section 12.3.
|
|
Communication by Holders with other Holders
|
|
|
53
|
|
Section 12.4.
|
|
Certificate and Opinion as to Conditions Precedent
|
|
|
53
|
|
Section 12.5.
|
|
Statements Required in Certificate or Opinion
|
|
|
54
|
|
Section 12.6.
|
|
When Securities Disregarded
|
|
|
54
|
|
Section 12.7.
|
|
Rules by Trustee, Paying Agent and Registrar
|
|
|
54
|
|
Section 12.8.
|
|
Legal Holidays
|
|
|
54
|
|
Section 12.9.
|
|
GOVERNING LAW
|
|
|
55
|
|
Section 12.10.
|
|
No Recourse Against Others
|
|
|
55
|
|
Section 12.11.
|
|
Successors
|
|
|
55
|
|
Section 12.12.
|
|
Multiple Originals
|
|
|
55
|
|
Section 12.13.
|
|
Severability
|
|
|
55
|
|
Section 12.14.
|
|
No Adverse Interpretation of Other Agreements
|
|
|
55
|
|
Section 12.15.
|
|
Table of Contents; Headings
|
|
|
55
|
|
iii
CROSS-REFERENCE TABLE
|
|
|
TIA
|
|
Indenture
|
Section
|
|
Section
|
310(a)(1)
|
|
7.10
|
(a)(2)
|
|
7.10
|
(a)(3)
|
|
N.A.
|
(a)(4)
|
|
N.A.
|
(b)
|
|
7.8; 7.10
|
(c)
|
|
N.A.
|
311(a)
|
|
7.11
|
(b)
|
|
7.11
|
(c)
|
|
N.A.
|
312(a)
|
|
2.7
|
(b)
|
|
12.3
|
(c)
|
|
12.3
|
313(a)
|
|
7.6
|
(b)(1)
|
|
7.6
|
(b)(2)
|
|
7.6
|
(c)
|
|
7.6
|
(d)
|
|
7.6
|
314(a)
|
|
3.2; 3.5; 12.2
|
(b)
|
|
N.A.
|
(c)(1)
|
|
12.4
|
(c)(2)
|
|
12.4
|
(c)(3)
|
|
N.A.
|
(d)
|
|
N.A.
|
(e)
|
|
12.5
|
315(a)
|
|
7.1
|
(b)
|
|
7.5; 12.2
|
(c)
|
|
7.1
|
(d)
|
|
7.1
|
(e)
|
|
6.11
|
316(a)(last sentence)
|
|
12.6
|
(a)(1)(A)
|
|
6.5
|
(a)(1)(B)
|
|
6.4
|
(a)(2)
|
|
N.A.
|
(b)
|
|
6.7
|
317(a)(1)
|
|
6.8
|
(a)(2)
|
|
6.9
|
(b)
|
|
2.6
|
318(a)
|
|
12.1
|
|
|
|
N.A. means Not Applicable.
|
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this
Indenture.
iv
THIS
INDENTURE, dated as of
,
is entered into by and between DR PEPPER SNAPPLE
GROUP, INC., a Delaware corporation (the
Company
), and WELLS FARGO BANK, N.A., a national
banking association, as trustee (the
Trustee
).
W I T N E S S E T H :
WHEREAS,
the Company may from time to time duly authorize the issue of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more series (the
Securities
) up to such principal amount or amounts as may from time to time be authorized
in accordance with the terms of this Indenture;
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
and
WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the holders thereof,
the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities as follows:
ARTICLE I
Definitions and Incorporation by Reference
Section 1.1.
Definitions
.
Additional Amounts
means any additional amounts required by the express terms of a
Security or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant
thereto, to be paid by the Company with respect to certain taxes, assessments or other governmental
charges imposed on certain Holders and that are owing to those Holders.
Adjusted Net Assets
of a Guarantor at any date means the amount by which the fair
value of the properties and assets of such Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding liabilities under its
Securities Guarantee, of such Guarantor at such date.
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 purposes of this definition, control, as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or
1
otherwise. For purposes of this definition, the terms controlling, controlled by and
under common control with have correlative meanings.
Bankruptcy Law
means Title 11,
United States Code
or any similar Federal or
state law for the relief of debtors.
Board of Directors
means:
|
(1)
|
|
with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;
|
|
|
(2)
|
|
with respect to a partnership, the board of directors of the general partner of
the partnership;
|
|
|
(3)
|
|
with respect to a limited liability company, the managing member or members or
any controlling committee of managing members thereof; and
|
|
|
(4)
|
|
with respect to any other Person, the board or committee of such Person serving
a similar function.
|
Board Resolution
means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the applicable Person to have been duly adopted by the Board of Directors of
such Person and to be in full force and effect on the date of such certification, and delivered to
the Trustee.
Business Day
means each day that is not a Saturday, Sunday or other day on which
banking institutions in New York, New York or another place of payment are authorized or required
by law to close.
Capital Stock
means:
|
(1)
|
|
in the case of a corporation, corporate stock;
|
|
|
(2)
|
|
in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock;
|
|
|
(3)
|
|
in the case of a partnership or limited liability company, partnership
interests (whether general or limited) or membership interests; and
|
|
|
(4)
|
|
any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person,
|
|
|
|
|
but excluding from all of the foregoing any debt securities convertible into Capital
Stock, whether or not such debt securities include any right of participation with
Capital Stock.
|
Code
means the Internal Revenue Code of 1986, as amended.
2
Company
has the meaning ascribed to it in the first introductory paragraph of this
Indenture.
Company Order
and
Company Request
mean, respectively, a written order or
request signed in the name of the Company by two Officers of the Company, and delivered to the
Trustee.
Custodian
means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.
Default
means any event that is, or with the passage of time or the giving of notice
or both would be, an Event of Default.
Depositary
means, with respect to the Securities of any series issuable or issued in
whole or in part in global form, the Person specified pursuant to
Section 2.1
hereof as the
initial Depositary with respect to the Securities of that series, until a successor shall have been
appointed and become such pursuant to the applicable provision of this Indenture, and thereafter
Depositary shall mean or include that successor.
Dollar
or $ means a dollar or other equivalent unit in such coin or currency of
the United States as at the time shall be legal tender for the payment of public and private debt.
DTC
means The Depository Trust Company, its nominees and their respective successors
and assigns, or such other depositary institution hereinafter appointed by the Company.
Equity Interests
means Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock).
Exchange Act
means the Securities Exchange Act of 1934, as amended.
GAAP
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Public Company Accounting Oversight Board (United States) and statements and
pronouncements of the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting profession, which are
in effect as of the date of determination.
Global Securities
of any series means a Security of that series that is issued in
global form in the name of the Depositary with respect thereto or its nominee.
3
Government Securities
means direct obligations of, or obligations guaranteed by, the
United States of America for the payment of which obligations or guarantee the full faith and
credit of the United States of America is pledged.
Guarantee
means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to maintain financial statement conditions
or otherwise), or entered into for purposes of assuring in any other manner the obligee of such
indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part).
Guarantors
means, with respect to any series of Securities, the Person or Persons,
if any, named in accordance with
Section 2.1(9)
as the Guarantors with respect to such
series and which shall have entered into a supplemental indenture pursuant to
Section
9.1(10)
hereof whereby such Person shall have executed a Securities Guarantee under this
Indenture with respect to such series of Securities until, as to any particular Guarantor, a
successor Person shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter any reference to such Guarantor shall mean such successor Person. If a series of
Securities does not have any Guarantors, all references in this Indenture to Guarantors shall have
no effect and shall be ignored with respect to such Securities.
Holder
means a Person in whose name a Security is registered in the applicable
Security Register.
Indenture
means this Indenture as amended or supplemented from time to time by one
or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental indenture, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term Indenture shall also include the terms of any
particular series of Securities and of any Securities Guarantees thereof established as
contemplated by
Section 2.1
.
Interest Payment Date
, when used with respect to any Security, shall have the
meaning assigned to that term in the Security as contemplated by
Section 2.1
.
Maturity
means, with respect to any Security, the date on which the principal of
that Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity thereof, or by declaration of acceleration, call for redemption or
otherwise.
Non-U.S. Person
means a person who is not a U.S. person, as defined in Regulation S.
4
Obligations
means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
indebtedness.
Officer
means the Chairman of the Board, the President, the Chief Financial Officer,
any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company.
Officers Certificate
means a certificate signed by two Officers, at least one of
whom shall be the President, the Chief Financial Officer or the Treasurer.
Opinion of Counsel
means a written opinion from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the
Trustee.
Original Issue Discount Security
means any Security that provides for an amount less
than the principal amount thereof to be due and payable on a declaration of acceleration of the
Maturity thereof pursuant to
Section 6.2
.
Person
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
Redemption Date
when used with respect to any Security to be redeemed, in whole or
in part, means the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price
means, with respect to any Security to be redeemed, the price at
which it is to be redeemed pursuant to this Indenture.
SEC
means the Securities and Exchange Commission.
Securities
has the meaning ascribed to it in the second introductory paragraph of
this Indenture.
Securities Act
means the Securities Act of 1933, as amended.
Securities Guarantee
means the Guarantee by each Guarantor of the Companys
Obligations under this Indenture and any series of Securities.
Securities Register
means the register of Securities, maintained by the Registrar,
pursuant to
Section 2.5
.
5
Security Custodian
means, with respect to Securities of a series issued in global
form, the Trustee for Securities of that series, as custodian with respect to the Securities of
that series, or any successor entity thereto.
Significant Subsidiary
means any Subsidiary that would be a significant subsidiary
as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act,
as such Regulation is in effect on the date of this Indenture.
Stated Maturity
means, with respect to any installment of interest or principal on
any series of indebtedness, the date on which the payment of interest or principal was scheduled to
be paid in the documentation governing such indebtedness as of the date of this Indenture, and will
not include any contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
Subsidiary
of any specified Person means any corporation, association or other
business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person or a combination thereof.
TIA
or
Trust Indenture Act,
except as otherwise
provided in Section 9.3, means the Trust Indenture Act of 1939 (15
U.S.C.
§§ 77aaa 77bbbb), as in effect on the date
hereof.
Trust Officer
shall mean, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the Persons who at the
time shall be such officers, respectively, or to whom any corporate trust matter is referred
because of such persons knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
Trustee
means the Person named as such above until a successor replaces it in
accordance with the applicable provisions of this Indenture, and thereafter Trustee means 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 means the Trustee with respect to
Securities of that series.
6
Voting Stock
of any specified Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of Directors of such
Person.
Section 1.2.
Other Definitions
.
|
|
|
|
|
|
|
Defined in
|
Term
|
|
Section
|
Agent Members
|
|
|
2.16
|
|
Certificate of Destruction
|
|
|
2.11
|
|
Corporate Trust Office
|
|
|
3.3
|
|
Covenant Defeasance
|
|
|
8.3
|
|
Defaulted Interest
|
|
|
2.12
|
|
Event of Default
|
|
|
6.1
|
|
Exchange Rate
|
|
|
2.18
|
|
Funding Guarantor
|
|
|
10.5
|
|
Legal Defeasance
|
|
|
8.2
|
|
Legal Holiday
|
|
|
12.8
|
|
Notation of Guarantee
|
|
|
10.2
|
|
Paying Agent
|
|
|
2.5
|
|
protected purchaser
|
|
|
2.9
|
|
Registrar
|
|
|
2.5
|
|
Special Interest Payment Date
|
|
|
2.12
|
(a)
|
Special Record Date
|
|
|
2.12
|
(a)
|
Surviving Entity
|
|
|
4.1
|
|
Section 1.3.
Incorporation by Reference of Trust Indenture Act
. This Indenture is subject to the mandatory
provisions of the TIA which are incorporated by
reference in and made a part of this Indenture. The following TIA terms have the following
meanings:
Commission means the SEC.
7
indenture securities means the Securities.
indenture security holder means a Holder of a Security.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on any series of Securities means the Company, any Guarantors and any other obligor
on such series of Securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined in the TIA by
reference to another statute or defined by SEC rules have the meanings assigned to them by such
definitions.
Section 1.4.
Rules of Construction
. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3) or is not exclusive;
(4) including means including without limitation;
(5) words in the singular include the plural and words in the plural include
the singular;
(6) the principal amount of any noninterest bearing or other discount security
at any date shall be the principal amount thereof that would be shown on a balance
sheet of the Company dated such date prepared in accordance with GAAP; and
(7) provisions apply to successive events and transactions.
ARTICLE II
The Securities
Section 2.1.
Form, Dating and Terms
.
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. There shall be established in or pursuant
to a Board Resolution, and set forth, or determined in the manner provided, in an Officers
Certificate of the Company or in a Company Order, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
8
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from the Securities of all other series);
(2) if there is to be a limit, the 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
2.8, 2.9, 2.13, 2.16, 5.7 or 9.5
and except for any
Securities that, pursuant to
Section 2.4 or 2.16
, are deemed never to have
been authenticated and delivered hereunder);
provided, however
, that unless
otherwise provided in the terms of the series, the authorized aggregate principal
amount of such series may be increased before or after the issuance of any
Securities of the series by a Board Resolution (or action pursuant to a Board
Resolution) to such effect;
(3) whether any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are to be issuable in
permanent global form, as Global Securities or otherwise, and, if so, whether
beneficial owners of interests in any such Global Security may exchange such
interests for Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if
other than in the manner provided in
Section 2.16
, and the initial
Depositary and Security Custodian, if any, for any Global Security or Securities of
such series;
(4) the manner in which any interest payable on a temporary Global Security on
any Interest Payment Date will be paid if other than in the manner provided in
Section 2.12
;
(5) the date or dates on which the principal of and premium (if any) on the
Securities of the series is payable or the method of determination thereof;
(6) the rate or rates, or the method of determination thereof, at which the
Securities of the series shall bear interest, if any, whether and under what
circumstances Additional Amounts with respect to such Securities shall be payable,
the date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable and the record date for the interest payable
on any Securities on any Interest Payment Date, or if other than provided herein,
the Person to whom any interest on Securities of the series shall be payable;
(7) the place or places where, subject to the provisions of
Section
3.3
, the principal of, premium (if any) and interest on and any Additional
Amounts with respect to the Securities of the series shall be payable;
(8) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and
9
conditions
upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have that option, and the manner in
which the Company must exercise any such option, if different from those set forth
herein;
(9) whether Securities of the series are entitled to the benefits of any
Securities Guarantee of any Guarantor pursuant to this Indenture, the identity of
any such Guarantors, whether Notations of such Securities Guarantees are to be
included on such Securities and any terms of such Securities Guarantee with respect
to the Securities of the series in addition to those set forth in
Article X
,
or any exceptions to or changes to those set forth in
Article X
;
(10) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or at
the option of a Holder thereof and the period or periods within which, the price or
prices (whether denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series shall be redeemed, purchased or
repaid in whole or in part pursuant to such obligation;
(11)
if other than denominations of $1,000 and any integral multiple in
excess thereof,
the denomination in which any Securities of that series shall be issuable;
(12) if other than Dollars, the currency or currencies (including composite
currencies) or the form, including equity securities, other debt securities
(including Securities), warrants or any other securities or property of the Company,
any Guarantor or any other Person, in which payment of the principal of, premium (if
any) and interest on and any Additional Amounts with respect to the Securities of
the series shall be payable;
(13) if the principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a currency or currencies (including
composite currencies) other than that in which the Securities are stated to be
payable, the currency or currencies (including composite currencies) in which
payment of the principal of, premium (if any) and interest on and any Additional
Amounts with respect to Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and conditions upon
which such election is to be made;
(14) if the amount of payments of principal of, premium (if any) and interest
on and any Additional Amounts with respect to the Securities of the series
may be determined with reference to any commodities, currencies or indices,
values, rates or prices or any other index or formula, the manner in which such
amounts shall be determined;
10
(15) if other than the entire principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to
Section 6.2
;
(16) any additional means of satisfaction and discharge of this Indenture and
any additional conditions or limitations to discharge with respect to Securities of
the series and the related Securities Guarantees, if any, pursuant to
Article
VIII
or any modifications of or deletions from such conditions or limitations;
(17) any deletions or modifications of or additions to the Events of Default
set forth in
Section 6.1
or covenants of the Company or any Guarantor set
forth in
Article III
pertaining to the Securities of the series;
(18) any restrictions or other provisions with respect to the transfer or
exchange of Securities of the series, which may amend, supplement, modify or
supersede those contained in this
Article II
;
(19) if the Securities of the series are to be convertible into or exchangeable
for capital stock, other debt securities (including Securities), warrants, other
equity securities or any other securities or property of the Company, any Guarantor
or any other Person, at the option of the Company or the Holder or upon the
occurrence of any condition or event, the terms and conditions for such conversion
or exchange;
(20) if applicable, that the Securities of the series, in whole or any
specified part, shall not be defeasible pursuant to
Section 8.2
or
Section 8.3
or both such Sections, and, if such Securities may be defeased,
in whole or in part, pursuant to either or both such Sections, any provisions to
permit a pledge of obligations other than Government Securities (or the
establishment of other arrangements) to satisfy the requirements of
Section
8.4(1)
for defeasance of such Securities and, if other than by a Board
Resolution of the Company, the manner in which any election by the Company to
defease such Securities shall be evidenced; and
(21) any other terms of the series (which terms shall not be prohibited by the
provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to
Section 2.3
) set forth, or determined in the manner provided, in the
Officers Certificate or Company Order referred to above or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action, together with such Board Resolution,
shall be set forth in an Officers Certificate or certified by the Secretary or an Assistant
Secretary
11
of the Company and delivered to the Trustee at or prior to the delivery of the Officers
Certificate or Company Order setting forth the terms of the series.
Section 2.2.
Denominations
. The Securities of each series shall be issuable in such denominations as shall be specified as
contemplated by
Section 2.1
. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.
Section 2.3.
Forms Generally
. The Securities of each series shall be in fully registered form and in substantially such form
or forms (including temporary or permanent global form) established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto. The Securities may have notations,
legends or endorsements required by law, securities exchange rule, the Companys certificate of
incorporation, bylaws or other similar governing documents, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). A copy of the Board Resolution establishing the form or forms of
Securities of any series shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by
Section 2.4
for the authentication and delivery of such
Securities.
The definitive Securities of each series shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by the Officers
executing such Securities, as evidenced by their execution thereof.
The Trustees certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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Wells Fargo Bank, N.A., as Trustee
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By:
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Authorized Officer
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Section 2.4.
Execution, Authentication, Delivery and Dating
. Two Officers of the Company shall sign the Securities on behalf of the Company and, with respect
to any related Securities Guarantees, Notations of Guarantee as to which are to be endorsed on such
Securities, an Officer of each Guarantor shall sign the Notation of Guarantee on behalf of such
Guarantor, in each case by manual or facsimile signature.
If an Officer of the Company or a Guarantor whose signature is on a Security no longer holds
that office at the time the Security or the Notation of Guarantee, as the case may be, is
authenticated, the Security or Notation of Guarantee shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or any related Securities
Guarantees or be valid or obligatory for any purpose until authenticated by the manual signature of
an authorized signatory of the Trustee, which signature shall be conclusive evidence that the
Security has been authenticated under this Indenture. Notwithstanding the foregoing, if any
Security has been authenticated and delivered hereunder but never issued and sold by the
12
Company,
and the Company delivers such Security to the Trustee for cancellation as provided in
Section
2.11
, together with a written statement (which need not comply with
Section 12.5
and
need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued
and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture or the related Securities Guarantees.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company (and, if applicable, the
Notation of Guarantee for such series executed by each Guarantor with respect to such series) to
the Trustee for authentication, and the Trustee shall authenticate and deliver such Securities for
original issue upon a Company Order for the authentication and delivery of such Securities or
pursuant to such procedures acceptable to the Trustee as may be specified from time to time by
Company Order. Such order shall specify the amount of the Securities to be authenticated, the date
on which the original issue of Securities is to be authenticated, the name or names of the initial
Holder or Holders and any other terms of the Securities of such series not otherwise determined. If
provided for in such procedures, such Company Order may authorize (1) authentication and delivery
of Securities of such series for original issue from time to time, with certain terms (including,
without limitation, the Maturity dates or dates, original issue date or dates and interest rate or
rates) that differ from Security to Security and (2) may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly authorized agent, which
instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by
Section 2.1
, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in addition to the Company Order referred to
above and the other documents required by
Section 12.4
), and (subject to
Section
7.1
) shall be fully protected in relying upon:
(a) an Officers Certificate of the Company setting forth the Board Resolution and, if
applicable, an appropriate record of any action taken pursuant thereto, as contemplated by the last
paragraph of
Section 2.1
; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established in conformity with the provisions of this
Indenture;
(ii) the terms of such Securities have been established in conformity with the provisions of
this Indenture; and
(iii) that such Securities and the related Securities Guarantees, if any, when authenticated
and delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company
and the Guarantors, respectively, enforceable against the Company and the Guarantors, respectively,
in accordance with their respective terms, except as the
13
enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
other similar laws in effect from time to time affecting the rights of creditors generally, and the
application of general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
If all the Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Officers Certificate and Opinion of Counsel at the time of issuance of
each such Security, but such Officers Certificate and Opinion of Counsel shall be delivered at or
before the time of issuance of the first Security of the series to be issued.
The Trustee shall not be required to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture would affect the Trustees own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. Unless limited by the terms of such appointment, any such 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, any Guarantor or an Affiliate of the Company
or any Guarantor.
Each Security shall be dated the date of its authentication.
Section 2.5.
Registrar and Paying Agent
. The Company shall maintain an office or agency for each series of Securities where Securities of
such series may be presented for registration of transfer or for exchange (the
Registrar
)
and an office or agency where Securities of such series may be presented for payment (the
Paying Agent
). The Company shall cause each of the Registrar and the Paying Agent to
maintain an office or agency in the United States of America. The Registrar shall keep a register
of the Securities and of their transfer and exchange (the
Securities Register
). The
Company may have one or more co-registrars and one or more additional paying agents. The term
Paying Agent
includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or co-registrar 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 each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to
Section 7.7
. The Company or
any of its Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying Agent for the Securities.
Section 2.6.
Paying Agent to Hold Money in Trust
. By no later than 11:00 a.m. (New York City time) on the date on which any amount or Additional
Amounts, if any, in respect of any Security is due and payable, the Company shall deposit with the
Paying Agent a sum
14
sufficient in immediately available funds to pay such amount or Additional
Amounts, if any, when due. The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that such Paying Agent shall hold in trust for the benefit of the applicable
Holders or the Trustee all money held by such Paying Agent for the payment of such amount and
Additional Amounts, if any, on the applicable Securities and shall notify the Trustee in writing of
any default by the Company or any Guarantor in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such
Paying Agent. Upon complying with this
Section 2.6
, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money delivered to the Trustee.
Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Securities.
Section 2.7.
Holder 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 Holders. If the Trustee is not the Registrar
with respect to a series of Securities, or to the extent otherwise required under the TIA, the
Company shall furnish to the Trustee, in writing at least five Business Days before each interest
payment date with respect to such series of Securities 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 Holders of such series.
Section 2.8.
Transfer and Exchange
.
Except as set forth in
Section 2.16
or as may be provided pursuant to
Section
2.1
, when Securities of any series are presented to the Registrar with the request to register
the transfer of those Securities or to exchange those Securities for an equal principal amount of
Securities of the same series of like tenor and of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its requirements and the
requirements of this Indenture for those transactions are met;
provided, however
, that the
Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed
or accompanied by a written instruction of transfer in form reasonably satisfactory to the
Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on
which instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the Company shall execute Securities (and,
if applicable, each Guarantor with respect to such series shall execute the Notation of Guarantee
for such series) and the Trustee shall authenticate such Securities at the Registrars written
request and submission of the Securities (other than Global Securities). No service charge shall
be made to a Holder for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than such transfer tax or
similar governmental charge payable on exchanges pursuant to
Section 2.13, 5.7 or 9.5)
.
The Trustee shall authenticate Securities in accordance with the provisions of
Section 2.4
.
Notwithstanding any other provisions of this Indenture to the contrary, the Company shall not be
required to register the transfer or exchange of (a) any Security selected for redemption in whole
or in part pursuant to
Article V
, except the unredeemed portion of any Security being
15
redeemed in part or (b) any Security during the period beginning 15 Business Days before the
mailing of notice of any offer to repurchase Securities of the series required pursuant to the
terms thereof or of redemption of Securities of a series to be redeemed and ending at the close of
business on the date of mailing.
Section 2.9.
Mutilated, Destroyed, Lost or Wrongfully Taken Securities
. If a mutilated Security is surrendered to the Registrar or if the Holder 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 with respect to such series if the requirements
of Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) satisfies the
Company or the Trustee within a reasonable time after such Holder has notice of such loss,
destruction or wrongful taking and the Registrar does not register a transfer prior to receiving
such notification, (b) makes such request to the Company or 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 (c) satisfies any other reasonable requirements of the Trustee.
If required by the Trustee or the Company, such Holder shall furnish an indemnity bond sufficient
in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying
Agent, the Registrar and any co-registrar from any loss which any of them may suffer if a Security
is replaced, and, in the absence of notice to the Company or the Trustee that such Security has
been acquired by a protected purchaser, the Company shall execute and, upon a Company Order, the
Trustee shall authenticate and make available for delivery, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or wrongfully taken Security, a new Security of
like tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or wrongfully taken Security has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new
Security of such series, pay such Security.
Upon the issuance of any new Security under this
Section 2.9
, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Trustee) in
connection therewith.
Every new Security issued pursuant to this Section in lieu of any mutilated, destroyed, lost
or wrongfully taken Security shall constitute an original additional contractual obligation of the
Company, any Guarantor (if applicable) and any other obligor upon the Securities of such series,
whether or not the mutilated, destroyed, lost or wrongfully taken Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly issued hereunder.
The provisions of this
Section 2.9
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 wrongfully taken Securities.
Section 2.10.
Outstanding Securities
. Securities outstanding at any time are all Securities authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation and those described in this
Section 2.10
as not outstanding. A Security ceases to be
16
outstanding in the event the
Company or a Subsidiary of the Company holds the Security,
provided
,
however
, that (i) for purposes
of determining which are outstanding for consent or voting purposes hereunder, the provisions of
Section 12.6
shall apply and (ii) in determining whether the Trustee shall be protected in
making a determination whether the Holders of the requisite principal amount of outstanding
Securities are present at a meeting of Holders of Securities for quorum purposes or have consented
to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver,
amendment or modification hereunder, or relying upon any such quorum, consent or vote, only
Securities which a Trust Officer of the Trustee actually knows to be held by the Company or an
Affiliate of the Company shall not be considered outstanding.
If a Security is replaced pursuant to
Section 2.9
, 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 segregates and holds in trust, in accordance with this Indenture, on a
Redemption Date or maturity date money sufficient to pay all amounts and Additional Amounts, if
any, payable on that date with respect to the Securities (or portions thereof) to be redeemed or
maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the
Holders on that date pursuant to the terms of this Indenture, then on and after that date such
Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
Section 2.11.
Cancellation
. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or cancellation and destroy
such Securities in accordance with its internal policies, including delivery of a certificate (a
Certificate of Destruction
) describing such Securities disposed (subject to the record
retention requirements of the Exchange Act). The Company may not issue new Securities to replace
Securities it has paid or delivered to the Trustee for cancellation for any reason other than in
connection with a transfer or exchange.
Section 2.12.
Payment of Interest; Defaulted Interest
. Unless otherwise provided as contemplated by
Section 2.1
with respect to the Securities
of any series, interest and Additional Amounts, if any, on any Security of such series which is
payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to
the Person in whose name such Security (or one or more predecessor Securities) is registered at the
close of business on the regular record date for such interest at the office or agency of the
Company maintained for such purpose pursuant to
Section 2.8
.
Unless otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, any interest and Additional Amounts, if any, on any Security of such
series which is payable, but is not paid when the same becomes due and payable and such nonpayment
continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular
record date, and such defaulted interest and (to the extent lawful) interest on such defaulted
interest at the rate provided for in the Securities therefor (such defaulted interest and interest
17
thereon herein collectively called
Defaulted Interest
) shall be paid by the Company, at
its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective predecessor Securities) are registered at
the close of business on a Special Record Date (as defined below) for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 30 days after such notice) of the proposed payment (the
Special Interest Payment Date
), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a record date (the
Special Record
Date
) for the payment of such Defaulted Interest, which date shall be not more than 15
days and not less than 10 days prior to the Special Interest Payment Date and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Interest Payment Date therefor to be given
in the manner provided for in
Section 12.2
, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date and Special Interest Payment Date therefor having been so given, such
Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in
whose names the Securities (or their respective predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be payable pursuant to
the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the Securities
may be listed, and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this
Section 2.12
, each Security delivered
under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest and Additional Amounts, if any, each as accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 2.13.
Temporary Securities
. Until definitive Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities of such series. Temporary Securities shall be
substantially in the form of definitive Securities, but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive
18
Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
Section 2.14.
Persons Deemed Owners
. The Company, any Guarantors, the Trustee, any Agent and any authenticating agent may treat the
Person in whose name any Security is registered as the owner of that Security for the purpose of
receiving payments of principal of, premium (if any) or interest on, or any Additional Amounts with
respect to, that Security and for all other purposes. None of the Company, the Trustee, any Agent
or any authenticating agent shall be affected by any notice to the contrary.
Section 2.15.
Computation of Interest
. Except as otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 2.16.
Global Securities; Book-Entry Provisions
. If Securities of a series are issuable in global form as a Global Security, as contemplated by
Section 2.1
, then, notwithstanding
clause (11)
of
Section 2.1
and the
provisions of
Section 2.2
, any such Global Security shall represent those of the
outstanding Securities of that series as shall be specified therein and may provide that it shall
represent the aggregate amount of outstanding Securities of that series from time to time endorsed
thereon and that the aggregate amount of outstanding Securities of that series represented thereby
may from time to time be reduced or increased, as appropriate, to reflect exchanges, transfers or
redemptions. Any endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of outstanding Securities of that series represented thereby shall be made
by the Trustee (i) in such manner and upon instructions given by such Person or Persons as shall be
specified in that Security or in a
Company Order to be delivered to the Trustee pursuant to
Section 2.4
or (ii) otherwise in
accordance with written instructions or such other written form of instructions as is customary for
the Depositary for that Security, from that Depositary or its nominee on behalf of any Person
having a beneficial interest in that Global Security. Subject to the provisions of
Section
2.4
and, if applicable,
Section 2.13
, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by the Person or
Persons specified in that Security or in the applicable Company Order. With respect to the
Securities of any series that are represented by a Global Security, the Company and any Guarantors
authorize the execution and delivery by the Trustee of a letter of representations or other similar
agreement or instrument in the form customarily provided for by the Depositary appointed with
respect to that Global Security. Any Global Security may be deposited with the Depositary or its
nominee, or may remain in the custody of the Trustee or the Security Custodian therefor pursuant to
a FAST Balance Certificate Agreement or similar agreement between the Trustee and the Depositary.
If a Company Order has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form shall be in writing
but need not comply with
Section 12.5
and need not be accompanied by an Opinion of Counsel.
19
Members of, or participants in, the Depositary (
Agent Members
) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by the Depositary, or
the Trustee or the Security Custodian as its custodian, or under that Global Security, and the
Depositary may be treated by the Company, any Guarantor, the Trustee or the Security Custodian and
any agent of the Company, any Guarantor, the Trustee or the Security Custodian as the absolute
owner of that Global Security for all purposes whatsoever. Notwithstanding the foregoing, (i) the
registered holder of a Global Security of any series may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through Agent Members, to take
any action that a Holder of Securities of that series is entitled to take under this Indenture or
the Securities of that series and (ii) nothing herein shall prevent the Company, any Guarantor, the
Trustee or the Security Custodian or any agent of the Company, any Guarantor, the Trustee, or the
Security Custodian from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a beneficial owner of any
Security.
Notwithstanding
Section 2.8
, and except as otherwise provided pursuant to
Section
2.1
, transfers of a Global Security shall be limited to transfers of that Global Security in
whole, but not in part, to the Depositary, its successors or their respective nominees. Interests
of beneficial owners in a Global Security may be transferred in accordance with the rules and
procedures of the Depositary. Securities of any series shall be transferred to all beneficial
owners of a Global Security of that series in exchange for their beneficial interests in that
Global Security if, and only if, either (1) the Depositary notifies the Company that it is
unwilling or unable to continue as depositary for such Global Security or the Depositary ceases to
be a clearing agency registered under the Exchange Act, at a time when the Depositary is required
to be so registered in order to act as depositary, and, in either case, a successor depositary is
not appointed by the Company within 90 days of such notice, (2) the Company, at its option,
notifies the Trustee in writing that it elects to cause the issuance of definitive Securities or
(3) a Default or Event of Default has occurred and is continuing with respect to the Securities.
In connection with any transfer of a portion of the beneficial interests in a Global Security
to beneficial owners pursuant to this
Section 2.16
, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of the Global Security in an
amount equal to the principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute and, if applicable, each Guarantor with respect to such
series shall execute the Notation of Guarantee relating to such Global Security, if any, and the
Trustee on receipt of a Company Order for the authentication and delivery of Securities shall
authenticate and deliver, one or more Securities of the same series of like tenor and amount.
In connection with the transfer of all the beneficial interests in a Global Security of any
series to beneficial owners pursuant to this
Section 2.16
, the Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the
Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in
exchange for its beneficial interest in the Global Security, an equal aggregate principal amount of
Securities of that series of authorized denominations.
20
Neither the Company, any Guarantor nor the Trustee will have any responsibility or liability
for any aspect of the records relating to, or payments made on account of, Securities by the
Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to
those Securities. Neither the Company, any Guarantor or the Trustee shall be liable for any delay
by the related Global Security Holder or the Depositary in identifying the beneficial owners, and
each such Person may conclusively rely on, and shall be protected in relying on, instructions from
that Global Security Holder or the Depositary for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the Securities to be issued).
The provisions of the last sentence of the third paragraph of
Section 2.4
shall apply
to any Global Security if that Global Security was never issued and sold by the Company and the
Company or a Guarantor delivers to the Trustee the Global Security together with written
instructions (which need not comply with
Section 12.5
and need not be accompanied by an
Opinion of Counsel) with regard to the cancellation or reduction in the principal amount of
Securities represented thereby, together with the written statement contemplated by the last
sentence of the third paragraph of
Section 2.4
.
Notwithstanding the provisions of
Sections 2.3 and 2.12
, unless otherwise specified as
contemplated by
Section 2.1
with respect to Securities of any series, payment of principal
of and premium (if any) and interest on and any Additional Amounts with respect to any Global
Security shall be made to the Person or Persons specified therein.
Section 2.17.
CUSIP Numbers, Etc
. The Company in issuing the Securities of any series may use CUSIP numbers (if then generally in
use) and, if so, the Trustee shall use CUSIP, ISIN and Common Code numbers in notices of redemption
as a convenience to Holders of Securities of such series;
provided
,
however
, that any such notice
may state that no representation is made as to the correctness of such numbers either as printed on
the Securities of such series or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Securities of such
series, 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 change in the CUSIP, ISIN and
Common Code numbers.
Section 2.18.
Original Issue Discount and Foreign-Currency Denominated Securities
. In determining whether the Holders of the required principal amount of outstanding Securities
have concurred in any direction, amendment, supplement, waiver or consent, unless otherwise
provided as contemplated by
Section 2.1
with respect to the Securities of any series, (a)
the principal amount of an Original Issue Discount Security of such series shall be the principal
amount thereof that would be due and payable as of the date of that determination upon acceleration
of the Maturity thereof pursuant to
Section 6.2
, and (b) the principal amount of a Security
of such series denominated in a foreign currency shall be the Dollar equivalent, as determined by
the Company by reference to the noon buying rate in The City of New York for cable transfers for
that currency, as that rate is certified for customs purposes by the Federal Reserve Bank of New
York (the
Exchange Rate
) on the date of original issuance of that Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent, as
determined by the Company by reference to the Exchange Rate on the date
21
of original issuance of
that Security, of the amount determined as provided in (a) above), of that Security.
ARTICLE III
Covenants
Section 3.1.
Payment of Securities
. The Company shall promptly pay the principal of, premium, if any, on, and interest and
Additional Amounts, if any, on the Securities on the dates and in the manner provided in the
Securities and in this Indenture. Principal, premium, if any, interest and Additional Amounts, if
any, shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds
in accordance with this Indenture immediately available funds sufficient to pay all principal,
premium and interest and Additional Amounts, if any, then due and the Trustee or Paying Agent, as
the case may be, is not prohibited from paying money to the Holders on that date pursuant to the
terms of this Indenture.
The Company shall pay interest on overdue principal at the rate specified therefor in the
Securities, and it shall pay interest on overdue installments of interest at the same rate to the
extent lawful.
Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the
extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by
the United States of America from principal or interest payments hereunder.
Section 3.2.
Reports
. So long as the Securities of any series are
outstanding the Company shall:
(1) furnish to the Trustee, within 15 days after the Company files the same
with the SEC, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
from time to time by rules and regulations prescribe) which the Company files with
the SEC pursuant to Section 13 or Section 15(d) of the Exchange
Act; and
(2)
comply with the other provisions of TIA § 314(a).
Section 3.3.
Maintenance of Office or Agency
. The Company will maintain in the United States of America an office or agency for any series of
Securities where such Securities may be presented or surrendered for payment, where, if applicable,
the Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The principal corporate trust office of the
Trustee at the address of the Trustee specified in Section 12.2
hereof (the
Corporate
Trust Office
) shall be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such purposes. The Company
will give prompt written
22
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind any such designation;
provided
,
however
, that no such designation
or rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in the United States of America for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and any change in the location of any
such other office or agency.
Section 3.4.
Corporate Existence
. Subject to
Article IV
, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence. This
Section 3.4
shall
not prohibit or restrict the Company from converting into a different form of legal entity.
Section 3.5.
Compliance Certificate
. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of
the Company an Officers Certificate stating that in the course of the performance by the signers
of their duties as Officers of the Company they would normally have knowledge of any Default or
Event of Default and whether or not the signers know of any Default or Event of Default that
occurred during such period. If they do, the certificate shall describe the Default or Event of
Default, its status and what action the Company is taking or proposes to take with respect thereto.
The Company also shall comply with TIA § 314(a)(4).
Section 3.6.
Statement by Officers as to Default
. So long as Securities of any series are outstanding, the Company shall deliver to the Trustee,
as soon as possible and in any event within 5 Business Days after the Company becomes aware of the
occurrence of any Event of Default or Default with respect to that series an Officers Certificate
setting forth the details of such Event of Default or Default and the action which the Company is
taking or proposes to take in respect thereof.
Section 3.7.
Additional Amounts
. If the Securities of a series expressly provide for the payment of Additional Amounts, the Company
will pay to the Holder of any Security of that series Additional Amounts as expressly provided
therein. Whenever in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security of any series or the net
proceeds received from the sale or exchange of any Security of any series, that mention shall be
deemed to include mention of the payment of Additional Amounts provided for in this
Section
3.7
to the extent that, in that context, Additional Amounts are, were or would be payable in
respect thereof pursuant to the provisions of this
Section 3.7
, and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where that express mention is not made.
23
Unless otherwise provided pursuant to
Section 2.1
with respect to Securities of any
series, if the Securities of a series provide for the payment of Additional Amounts, at least ten
days prior to the first Interest Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to Maturity, the first day on which a
payment of principal and any premium is made), and at least ten days prior to each date of payment
of principal and any premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers Certificate, the Company shall furnish the Trustee and
the Companys principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers
Certificate instructing the Trustee and such Paying Agent or Paying Agents whether that payment of
principal of and any premium or interest on the Securities of that series shall be made to Holders
of Securities of that series who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of that series. If any
such withholding shall be required, then that Officers Certificate shall specify by country the
amount, if any, required to be withheld on those payments to those Holders of Securities, and the
Company will pay to that Paying Agent the Additional Amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for and to hold them harmless against any
loss, liability or expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in reliance on any
Officers Certificate furnished pursuant to this
Section 3.7
.
ARTICLE IV
Successors
Section 4.1.
Merger, Consolidation or Sale of Assets
. The Company shall not consolidate or combine with or merge with or into or, directly or
indirectly, sell, assign, convey, lease, transfer or otherwise dispose of all or substantially all
of its assets to any Person or Persons in a single transaction or through a series of transactions,
unless:
(1) the Company shall be the successor or continuing Person or, if the Company
is not the successor or continuing Person, the resulting, surviving or transferee
Person (the
Surviving Entity
) is a company organized and existing under
the laws of the United States, any State thereof or the District of Columbia that
expressly assumes all of the Companys obligations under the Securities and this
Indenture pursuant to a supplement hereto executed and delivered to the Trustee;
(2) immediately after giving effect to such transaction or series of
transactions, no Event of Default has occurred and is continuing; and
(3) the Company or the Surviving Entity shall have delivered to the Trustee an
Officers Certificate and Opinion of Counsel stating that the transaction or series
of transactions and any supplement hereto complies with the terms of this Indenture.
If any consolidation or merger or any sale, assignment, conveyance, lease, transfer or other
disposition of all or substantially all of the Companys assets occurs in accordance with the
24
terms
hereof, the Surviving Entity 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 Surviving Entity had
been named as the Company. The Company shall (except in the case of a lease) be discharged from all
obligations and covenants under this Indenture and any Securities
issued hereunder, and may be liquidated and dissolved. Notwithstanding
the foregoing, the Company may merge or consolidate into or with any Subsidiary.
ARTICLE V
Redemption of Securities
Section 5.1.
Applicability of Article
. Redemption of Securities at the election of the Company or otherwise, as permitted or required
by any provision of this Indenture, shall be made in accordance with such provision and (except as
otherwise provided as contemplated by
Section 2.1
with respect to the Securities of any
series) this
Article V
.
Section 5.2.
Election to Redeem; Notice to Trustee
. In case of any redemption of any series of Securities at the election of the Company, the
Company shall, upon not later than the earlier of the date that is 45 days prior to the Redemption
Date fixed by the Company or the date on which notice is given to the Holders (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities of such series to be redeemed
pursuant to
Section 5.3
.
Section 5.3.
Selection by Trustee of Securities to Be Redeemed
. If fewer than all of the Securities of any series are to be redeemed at any time, the Trustee
will, subject to applicable law, select Securities of any series for redemption as follows:
(1) if the Securities are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange on
which the Securities are listed; or
(2) if the Securities are not listed on any national securities exchange, on a
pro rata basis.
Section 5.4.
Notice of Redemption
. Notice of redemption shall be given in the manner provided for in
Section 12.2
not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, except that redemption notices may be mailed more than 60 days prior to a Redemption Date
if such notice is issued in connection with a defeasance of the Securities or a satisfaction and
discharge of this Indenture. Notice of any redemption may, at the Companys discretion, be subject to one or more conditions precedent. The Trustee shall give
notice of redemption in the Companys name and at the Companys expense;
provided
,
however
, that
the Company shall deliver to the Trustee, at least 45 days prior to the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee), an Officers Certificate requesting that the
Trustee give such
25
notice at the Companys expense and setting forth the information to be stated in
such notice as provided in the following items.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued interest and Additional
Amounts, if any, to the Redemption Date payable as provided in
Section 5.6
;
(3) if less than all outstanding Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed, as
well as the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such partial
redemption;
(4) in case any Securities are is to be redeemed in part only, the notice which
relates to such Securities shall state that on and after the Redemption Date, upon
surrender of such Securities, the Holder will receive, without charge, a new
Security or Securities of authorized denominations for the principal amount thereof
remaining unredeemed;
(5) that on the Redemption Date the redemption price (and accrued interest, if
any, to the Redemption Date payable as provided in
Section 5.6
) will become
due and payable upon each such Security, or the portion thereof, to be redeemed,
and, unless the Company defaults in making the redemption payment, that interest and
Additional Amounts, if any, on Securities (or the portions thereof) called for
redemption will cease to accrue on and after said date;
(6) the place or places where such Securities are to be surrendered for payment
of the Redemption Price and accrued interest, if any;
(7) the name and address of the Paying Agent;
(8) that Securities called for redemption (other than a Global Note) must be
surrendered to the Paying Agent to collect the redemption price;
(9) the CUSIP, ISIN or Common Code number, and that no representation is made
as to the accuracy or correctness of the CUSIP, ISIN or Common Code number, if any,
listed in such notice or printed on the Securities; and
(10) the section of this Indenture and the paragraph of the Securities pursuant
to which the Securities are to be redeemed.
Any redemption and notice thereof pursuant to this Indenture may, in the Companys discretion, be
subject to the satisfaction of one or more conditions.
26
Section 5.5.
Deposit of Redemption Price
. Not later than 11:00 a.m. New York time on the Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in
Section 2.6
) an amount of money sufficient to pay the
redemption price of, and accrued interest and Additional Amounts, if any, on, all the Securities
which are to be redeemed on that date.
Section 5.6.
Securities Payable on Redemption Date
. Notice of redemption having been given as aforesaid, unless the notice of redemption is subject
to one or more conditions precedent which have not been satisfied, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the redemption price therein specified
(together with accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment of the redemption
price and accrued interest and Additional Amounts, if any) such
Securities shall cease to bear interest and Additional Amounts, if any. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
at the redemption price, together with accrued and unpaid interest and Additional Amounts, if any,
to the Redemption Date (subject to the rights of Holders of record on the relevant record date to
receive interest and Additional Amounts, if any, due on an interest payment date that is on or
prior to the Redemption Date).
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest and Additional
Amounts, if any, from the Redemption Date at the rate borne by the Securities.
Section 5.7.
Securities Redeemed in Part
. Any Security which is to be redeemed only in part (pursuant to the provisions of this
Article V
) shall be surrendered at the office or agency of the Company maintained for such
purpose pursuant to
Section 2.5
(with, if the Company or the Trustee so require, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holders attorney duly authorized in writing),
and the Company shall execute and, if applicable, each Guarantor with respect to such series shall
execute the Notation of Guarantee relating to such Security, if any, and the Trustee shall
authenticate and make available for delivery to the Holder of such Security at the expense of the
Company, a new Security or Securities, of any authorized denomination as requested by such Holder,
in an aggregate principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered,
provided
that each such new Security will be in a
principal amount of $1,000 or integral multiple thereof. No Securities of $1,000 or less may be
redeemed in part.
27
ARTICLE VI
Defaults and Remedies
Section 6.1.
Events of Default
. Unless either inapplicable to a particular series or specifically deleted or modified in or
pursuant to the supplemental indenture or Board Resolution establishing such series of Securities
or in the form of Security for such series, an
Event of Default
, wherever used herein
with respect to Securities of any series, occurs if:
(1) the Company defaults in the payment of any installment of interest on or
Additional Amounts, if any, with respect to any Security of that series under this
Indenture when due, continued for 30 days;
(2) the Company defaults in the payment when due (at Stated Maturity, upon
redemption or otherwise) of the principal of, or premium, if any, on the Securities
of that series;
(3) the Company fails to comply with the provisions of
Section 4.1
hereof;
(4) the Company fails for 90 days after notice to the Company by the Trustee or
the Holders of at least 25% in aggregate principal amount of the Securities of that
series then outstanding to comply with any of the other
covenants or agreements in this Indenture;
(5) the Company fails to deposit any sinking fund payment, when due, in respect of any debt
security of that series;
(6) (a) except as permitted by this Indenture, any Security Guarantee of that
series shall be held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect or (b) any Guarantor of that
series, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under its Security Guarantee (except pursuant to the release or
termination of such Security Guarantee in accordance with this Indenture); and
(7) (a) the Company or any Significant Subsidiary or a group of Subsidiaries
that, taken together (as of the latest available consolidated financial statements
of the Company), would constitute a Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
|
(i)
|
|
commences a voluntary case or proceeding;
|
|
|
(ii)
|
|
consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding;
|
|
|
(iii)
|
|
consents to the appointment of a Custodian of
it or for any substantial part of its property;
|
|
|
(iv)
|
|
makes a general assignment for the benefit of
its creditors; or
|
28
|
(v)
|
|
consents to or acquiesces in the institution of
a bankruptcy or an insolvency proceeding against it;
|
or takes any comparable action under any foreign laws relating to insolvency; or
|
(b)
|
|
a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
|
|
(i)
|
|
is for relief against the Company
or any Significant Subsidiary;
|
|
|
(ii)
|
|
appoints a Custodian of the
Company or any Significant Subsidiary; or
|
|
|
(iii)
|
|
orders the winding up or
liquidation of the Company or any Significant Subsidiary;
|
or any similar relief is granted under any foreign laws and the order, decree or
relief remains unstayed and in effect for 90 days.
Section 6.2.
Acceleration
. Except as otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of such series, if any Event of Default with respect to any Securities of such series at
the time outstanding (other than those of the type described in
clause (7)
of
Section
6.1
) occurs and is continuing, the Trustee may, and at the direction of the Holders of at least
25% in aggregate principal amount of outstanding Securities of such series shall, declare the
principal of all the Securities of that series, together with all accrued and unpaid interest and
Additional Amounts, if any, and premium, if any, to be due and payable immediately by notice in
writing to the Company and the Trustee specifying the respective Event of Default and that such
notice is a notice of acceleration, and the same shall become immediately due and payable.
Except as otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, in the case of an Event of Default with respect to such series specified
in
clause (7)
of
Section 6.1
hereof, all outstanding Securities of such series
shall become due and payable immediately without further action or notice by the Trustee or the
Holders. Holders may not enforce this Indenture or the Securities except as provided in this
Indenture.
Except as otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, at any time after a declaration of acceleration with respect to the
Securities of such series, the Holders of a majority in principal amount of the Securities of that
series then outstanding (by notice to the Trustee) may, on behalf of the Holders of all the
Securities of that series, rescind and cancel such declaration and its consequences if:
(1) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction;
(2) all existing Defaults and Events of Default with respect to Securities of
that series have been cured or waived except nonpayment of
29
principal of
or interest
on the Securities of that series that has become due solely by reason of such
declaration of acceleration;
(3) to the extent the payment of such interest is lawful, interest (at the same
rate specified in the Securities of such series) on overdue installments of interest
and Additional Amounts, if any, and overdue payments of principal which has become
due otherwise than by such declaration of acceleration has been paid;
(4) the Company has paid the Trustee its reasonable compensation and reimbursed
the Trustee for its reasonable expenses, disbursements and advances; and
(5) in the event of the cure or waiver of an Event of Default of the type
described in
clause (7)
of
Section 6.1
, the Trustee has received an
Officers Certificate and Opinion of Counsel that such Event of Default has been
cured or waived.
Section 6.3.
Other Remedies
. If an Event of Default with respect to any series occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of (or premium, if any) or interest
or Additional Amounts, if any, on the Securities of such series or to enforce the performance of
any provision of the Securities of such series or this Indenture with respect to such series.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative.
Section 6.4.
Waiver of Past Defaults
. Except as otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, the Holders of a majority in principal amount of the then outstanding
Securities of such series by notice to the Trustee may, on behalf of the Holders of all the
Securities of such series, (a) waive, by their consent (including, without limitation consents
obtained in connection with a purchase of, or tender offer or exchange offer for, Securities of
such series), an existing Default or Event of Default, with respect to such series and its
consequences or compliance with any provisions except (i) a Default or Event of Default in the
payment of the principal of, or premium, if any, or interest or Additional Amounts, if any, on a
Security of such series or (ii) a Default or Event of Default in respect of a provision that under
Section 9.2
cannot be amended without the consent of each Holder affected and (b) rescind
any such acceleration with respect to the Securities of such series and its consequences if
rescission would not conflict with any judgment or decree of a court of competent jurisdiction.
When a Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any consequent right.
Section 6.5.
Control by Majority
. With respect to Securities of any series, the Holders of a majority in principal amount of the
outstanding Securities of such series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of
30
exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or
this Indenture or, subject to
Sections 7.1
and
7.2
, that the Trustee determines is
unduly prejudicial to the rights of the other Holders or would involve the Trustee in personal
liability. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused by taking or not
taking such action.
Section 6.6.
Limitation on Suits
. Subject to
Section 6.7
, a Holder of a Security of any series may not pursue any remedy
with respect to this Indenture or the Securities of such series or any related Securities
Guarantees unless:
(1) such Holder has previously given to the Trustee written notice stating that
an Event of Default is continuing with respect to such series;
(2) Holders of at least 25% in aggregate principal amount of the outstanding
Securities of such series have requested in writing that the Trustee pursue the
remedy;
(3) such Holders have offered to the Trustee reasonable security or indemnity
against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after receipt
of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the outstanding Securities
of such series have not given the Trustee a direction that, in the opinion of the
Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
Section 6.7.
Rights of Holders to Receive Payment
. Notwithstanding any other provision of this Indenture (including, without limitation,
Section 6.6
), the right of any Holder to receive payment of principal of, premium (if any)
or interest or Additional Amounts, if any, when due on the Securities held by such Holder, on or
after the respective due dates expressed in the Securities, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.8.
Collection Suit by Trustee
. If an Event of Default specified in
clauses (1) or (2)
of
Section 6.1
occurs and
is continuing with respect to Securities of any series, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) with respect to such series
and the amounts provided for in
Section 7.7
.
Section 6.9.
Trustee May File Proofs of Claim
. The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in any judicial
proceedings relative to the Company, its Subsidiaries or its or their respective creditors or
properties and, unless prohibited
31
by law or applicable regulations, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person performing similar functions,
and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make
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 its counsel,
and any other amounts due the Trustee under
Section 7.7
. To the extent that the payment of
any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under
Section 7.7
hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on,
and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or the
rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
Section 6.10.
Priorities
. If the Trustee collects any money or property pursuant to this
Article VI
, it shall pay
out the money or property in the following order:
FIRST
: to the Trustee for amounts due under
Section 7.7
;
SECOND
: to Holders for amounts due and unpaid on the Securities in respect of which or for
the benefit of which such money has been collected, for principal, premium, if any, and interest
and Additional Amounts, if any, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities for principal, premium, if any, and interest and
Additional Amounts, if any, respectively; and
THIRD
: to the Company or any Guarantors or to such other party as a court of competent
jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.10
. At least 15 days before such record date, the Company shall mail to each
Holder and the Trustee a notice that states the record date, the payment date and amount to be
paid.
Section 6.11.
Undertaking for Costs
. 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 or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This
Section 6.11
does not apply to a suit
by the Trustee, a suit by the Company, a suit by a Holder pursuant to
Section 6.7
or a suit
by Holders of more than 10% in outstanding principal amount of the Securities of any series.
32
ARTICLE VII
Trustee
Section 7.1.
Duties of Trustee
. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent Person would exercise or use under the circumstances in the conduct of such
Persons own affairs; provided that if an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise the rights or powers under this Indenture at the request or
direction of any of the Holders unless such Holders have offered to the Trustee indemnity or
security against loss, liability or expense satisfactory to the Trustee in its sole discretion.
(b) Except during the continuance of an Event of Default with respect to the Securities
of any series:
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates, opinions or orders furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine such certificates and
opinions to determine whether or not they conform on their face to the requirements
of this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.1
;
(2) 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
(3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to
Section 6.5
.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b) and (c) of this
Section 7.1
.
33
(e) The Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.
(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 financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers.
(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 7.1
and to the provisions of the TIA.
(i) Unless otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an Officer of the
Company.
(j) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders unless such
Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to
it against the costs, expenses (including reasonable attorneys fees and expenses) and
liabilities that might be incurred by it in compliance with such request or direction.
Section 7.2.
Rights of Trustee
. Subject to
Section 7.1
:
(a) The Trustee may conclusively rely on any document (whether in its original or
facsimile form) reasonably 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 and/or an Opinion of Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on an Officers
Certificate and/or Opinion of
Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) The Trustee may consult with counsel of its selection, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
34
Securities shall be
full and complete authorization and protection from liability in respect of 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 is not required to make any inquiry or investigation into facts or
matters stated in any document but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit and, if the Trustee
determines to make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company.
(g) The Trustee is not required to take notice or shall not be deemed to have notice of
any Default or Event of Default hereunder with respect to any series of Securities, unless a
Trust Officer of the Trustee has actual knowledge thereof or has received notice in writing
of such Default or Event of Default from the Company or the Holders of at least 25% in
aggregate principal amount of the Securities of such series then outstanding, and in the
absence of any such notice, the Trustee may conclusively assume that no such Default or
Event of Default exists.
(h) The Trustee is not required to give any bond or surety with respect to the
performance of its duties or the exercise of its powers under this Indenture.
(i) In the event the Trustee receives inconsistent or conflicting requests and
indemnity from two or more groups of Holders of Securities, each representing less than the
aggregate principal amount of Securities outstanding required to take any action thereunder,
the Trustee, in its sole discretion may determine what action, if any, shall be taken.
(j) The Trustees immunities and protections from liability and its right to
indemnification in connection with the performance of its duties under this Indenture shall
extend to the Trustees officers, directors, agents, attorneys and employees. Such
immunities and protections and right to indemnification, together with the Trustees right
to compensation, shall survive the Trustees resignation or removal, the discharge of this
Indenture and final payments of the Securities.
(k) The permissive right of the Trustee to take actions permitted by this Indenture
shall not be construed as an obligation or duty to do so.
(l) The Trustee shall have no duty to inquire as to the performance of the Companys covenants
herein.
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 its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or co-paying agent may do
the same with like rights. However, the Trustee must comply with
Sections 7.10
and
7.11
.
Section 7.4.
Trustees Disclaimer
. The Trustee shall not be responsible for 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 of the Company
in this Indenture or in any document issued in
35
connection with the sale of the Securities or in the
Securities other than the Trustees certificate of authentication.
Section 7.5.
Notice of Defaults
. If a Default or Event of Default with respect to the Securities of any series occurs and is
continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail to each
Holder of a Security of such series notice of the Default or Event of Default within 90 days after
it occurs, unless the Default was already cured or waived. Except in the case of a Default or Event of Default in payment of principal of, premium, if
any, or interest or Additional Amounts, if any, on any Security of any series, the Trustee may
withhold the notice if and so long as a committee of its trust officers in good faith determines
that withholding the notice is in the interests of Holders of such series.
Section 7.6.
Reports by Trustee to Holders
. As promptly as practicable after each May 15 beginning with the May 15 following the date of
this Indenture and for so long as the Securities of any series remain outstanding, the Trustee
shall mail to each Holder of Securities of such series a brief report dated as of such reporting
date that complies with TIA § 313(a). The Trustee also shall comply with TIA § 313(b). The
Trustee shall also transmit by mail all reports required by TIA § 313(c).
A copy of each report at the time of its mailing to Holders of Securities of any series shall
be filed with the SEC and each stock exchange (if any) on which the Securities of such series are
listed. The Company agrees to notify promptly the Trustee whenever the Securities of any series
become 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 reasonable compensation for its
acceptance of this Indenture and services hereunder 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, costs of preparing and reviewing reports, certificates and other documents, costs of
preparation and mailing of notices to Holders, 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
against any and all losses, liabilities, damages, claims,
penalties, fines or expenses (including reasonable attorneys
fees and expenses) (for purposes of this Section 7.7,
losses) incurred by it in
connection with the administration of this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture (including this
Section 7.7
)
and of defending itself against any claims (whether asserted by any Holder, the Company or
otherwise), except to the extent such losses may be attributable to
its negligence or bad faith. The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall provide reasonable
cooperation at the Companys expense in the defense. The Trustee may have separate counsel and the
Company shall pay the fees and expenses of such counsel provided that the Company shall not be
required to pay such fees and expenses if it assumes the Trustees defense, and, in the reasonable
judgment of outside counsel to the Trustee, there is no conflict of interest between the Company
and the Trustee in connection with such defense. The Company shall not be under any
36
obligation to
pay for any written settlement without its consent, which consent shall not be unreasonably
delayed, conditioned or withheld. The Company need not reimburse any
expense incurred by the Trustee through the Trustees own willful misconduct,
gross negligence or bad faith.
To secure the Companys payment obligations in this
Section 7.7
, the Trustee shall
have a lien prior to the Securities on all money or property held or collected by the Trustee other
than money or property held in trust to pay principal of, interest and Additional Amounts, if any,
on particular Securities.
The Companys payment obligations pursuant to this
Section 7.7
shall survive the
discharge of this Indenture, the resignation or removal of the Trustee and payment in full of the Securities. When the Trustee incurs expenses after the occurrence of a Default
specified in clause (7) of
Section 6.1
with respect to the Company, the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.8.
Replacement of Trustee
. The Trustee may resign at any time by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Securities of any series may remove the Trustee with
respect to the Securities of such series by so notifying the Trustee and may appoint a successor
Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with
Section 7.10
;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the Holders of a majority in
principal amount of the then outstanding Securities of any series and such Holders of such series
do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the
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 with respect to such series.
If a successor Trustee with respect to Securities of any series does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of at
least 10% in principal amount of the then outstanding Securities of such series may petition, at
the Companys expense, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
If the Trustee with respect to the Securities of a series fails to comply with
Section
7.10
, unless the Trustees duty to resign is stayed as provided in TIA § 310(b), any Holder who
has been a bona fide Holder of a Security of such series for at least six months may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee with respect to such series.
37
In case of the appointment of a successor Trustee with respect to all Securities, each such
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee, to
the Company and to any Guarantors. Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights, power and duties of
the retiring Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. 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
.
In case of the appointment of a successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, any Guarantors, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more (but not all) series shall execute and
deliver an indenture supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights, powers and duties
of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall confirm that all the rights, powers and duties of the retiring
Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee. Nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust, and each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee. Upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee shall have all the rights, powers
and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates. On request of the Company or any successor
Trustee, such retiring Trustee shall transfer to such successor Trustee all property held by such
retiring Trustee as Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates. Such retiring Trustees shall, however, have the
right to deduct its unpaid fees and expenses, including attorneys fees.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.8
, the
Companys obligations under
Section 7.7
shall continue for the benefit of the retiring
Trustee.
Section 7.9.
Successor Trustee by Merger
. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all
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 shall succeed to the trusts created by this Indenture, any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the 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
38
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 or in this Indenture.
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 $100.0 million 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.
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 VIII
Legal Defeasance and Covenant Defeasance
Section 8.1.
Option to Effect Legal Defeasance or Covenant Defeasance
. Unless otherwise designated pursuant to
Section 2.1(20)
, the Securities of any series
shall be subject to defeasance or covenant defeasance pursuant to
Section 8.2
or
8.3
, in accordance with any applicable requirements provided pursuant to
Section
2.1
and upon compliance with the conditions set forth in this
Article VIII
. The
Company may, at its option and at any time, elect to have either
Section 8.2
or
8.3
hereof be applied to all outstanding Securities of any series so subject to defeasance or covenant
defeasance. Any such election shall be evidenced by a Board Resolution of the Company or in another
manner specified as contemplated by
Section 2.1
for such Securities.
Section 8.2.
Legal Defeasance and Discharge
. Upon the Companys exercise under
Section 8.1
hereof of the option applicable to this
Section 8.2
with respect to Securities of any series, the Company shall, subject to the
satisfaction of the conditions set forth in
Section 8.4
hereof, be deemed to have been
discharged from its Obligations with respect to all outstanding Securities of such series on the
date the conditions set forth below are satisfied (hereinafter,
Legal Defeasance
) and
each Guarantor, if applicable, shall be released and relieved from all of its Obligations under its
Security Guarantee with
respect to such series. For this purpose, Legal Defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by the outstanding Securities with
respect to such series, which shall thereafter be deemed to be outstanding only for the purposes
of
Section 8.5
hereof and the other Sections of this Indenture referred to in clauses (a)
through (e) below, and to have satisfied all its other obligations under the Securities with
respect to such series and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Securities with respect to such series to receive, solely from the trust
fund described in
Sections 8.4
and
8.5
hereof, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest and Additional
Amounts, if any, on such Securities when such
39
payments are due, (b) the Companys Obligations with
respect to such Securities under
Article II
and
Sections 3.1
hereof, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the Companys and any
Guarantors obligations in connection therewith, (d) the optional redemption provisions, if any,
with respect to such Securities, and (e) this
Article VIII
. If the Company exercises under
Section 8.1
hereof the option applicable to this
Section 8.2
, subject to the
satisfaction of the conditions set forth in
Section 8.4
hereof, payment of the Securities
with respect to such series may not be accelerated because of an Event of Default. Subject to
compliance with this
Article VIII
, the Company may exercise its option under this
Section 8.2
notwithstanding the prior exercise of its option under
Section 8.3
hereof.
Section 8.3.
Covenant Defeasance
. Upon the Companys exercise under
Section 8.1
hereof of the option applicable to this
Section 8.3
with respect to Securities of any series, the Company shall, with respect to
such series of Securities, subject to the satisfaction of the conditions set forth in
Section
8.4
hereof, be released from its obligations under the covenants contained in
Sections
3.2
and
3.3
, with respect to the outstanding Securities of such series on and after the
date the conditions set forth in
Section 8.4
hereof are satisfied (hereinafter,
Covenant Defeasance
) and each Guarantor, if applicable, shall be released from all of its
obligations under its Security Guarantee with respect to such series of Securities, and the
Securities of such series shall thereafter be deemed not outstanding for the purposes of any
direction, waiver, consent or declaration or act of Holders of such series (and the consequences of
any thereof) in connection with such covenants, but shall continue to be deemed outstanding for
all other purposes hereunder (it being understood that such Securities shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Securities of such series, the Company and any Guarantors may omit to
comply with and shall have no liability in respect of any term, condition or limitation set forth
in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein
to any such covenant or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall not constitute a Default or an
Event of Default under
Section 6.1
hereof, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby. If the Company exercises under
Section 8.1
hereof the option applicable to this
Section 8.3
, subject to the
satisfaction of the conditions set forth in
Section 8.4
hereof, payment of the Securities
of such series may not be accelerated because of an Event of Default specified in
clauses (4) (with respect to
Sections 3.2 and 3.3
),
(6) and (7) of such
Section 6.1
.
Section 8.4.
Conditions to Legal or Covenant Defeasance
. The following shall be the conditions to the application of either
Section 8.2
or
8.3
hereof to the outstanding Securities of any series.
In order to exercise Legal Defeasance or Covenant Defeasance with respect to the Securities of
any series:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holders of the Securities of such series, cash in U.S. dollars,
non-callable Government Securities, or a combination of cash in U.S. dollars, and
non-callable Government Securities, in amounts as will be sufficient, in the
40
opinion
of a nationally recognized investment bank, appraisal firm or firm of independent
public accountants, to pay the principal of, and interest and Additional Amounts, if
any, and premium, if any, on the outstanding Securities of such series on the stated
date for payment or on the applicable Redemption Date, as the case may be, and the
Company must specify whether the Securities of such series are being defeased to
such stated date for payment or to a particular Redemption Date;
(2) in the case of Legal Defeasance, the Company must deliver to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that: (a) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling; or (b) since the date 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 will confirm that, the Holders of the
outstanding Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and shall be
subject to federal income tax in the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company must deliver to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that Holders
of the outstanding Securities of such series shall not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance and
shall be subject to federal income tax in the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance had not
occurred;
(4) no Default or Event of Default has occurred and be continuing with respect
to the Securities of such series on the date of such deposit (other than a Default
or Event of Default resulting from the borrowing of funds to be applied to such
deposit);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument
(other than this Indenture) to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers Certificate stating
that such deposit was not made by the Company with the intent of preferring the
Holders of Securities of such series over the other creditors of the Company with
the intent of defeating, hindering, delaying or defrauding creditors of the Company
or others; and
41
(7) the Company must deliver to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
Section 8.5.
Deposited Cash and Government Securities to be Held in Trust; Other
Miscellaneous Provisions
. Subject to
Section 8.6
hereof, all cash and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee),
collectively for purposes of this
Section 8.5
, the
Trustee
) pursuant to
Section 8.4
hereof in respect of the outstanding Securities of such series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such Securities of such
series and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as Paying Agent) as the Trustee may determine, to the Holders of Securities of
such series of all sums due and to become due thereon in respect of principal, premium, if any,
interest and Additional Amounts, if any, but such cash and securities need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or non-callable Government Securities deposited pursuant to
Section 8.4
hereof or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of the outstanding
Securities of such series.
Anything in this
Article VIII
to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon the request of the Company any cash or
non-callable Government Securities held by it as provided in
Section 8.4
hereof which, in
the opinion of a nationally recognized independent registered public accounting firm expressed in a
written certification thereof delivered to the Trustee (which may be the certification delivered
under clause (1) of
Section 8.4
hereof), are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.6.
Repayment to Company
. Any cash or non-callable Government Securities deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal of, premium, if any,
on, or interest or Additional Amounts, if any, on, any Security of any series and remaining
unclaimed for one year after such principal, premium, if any, or interest or Additional Amounts, if
any, has become due and payable shall be paid to the Company on its request (unless an abandoned
property law designates another Person) or (if then held by the Company) shall be discharged from
such trust; and such Holder shall thereafter, as an unsecured creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such
cash and securities, and all liability of the Company as Trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
The New York Times
and
The Wall Street Journal
(national edition), notice that such cash and securities remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such cash and securities then remaining
shall be repaid to the Company.
42
Section 8.7.
Reinstatement
. If the Trustee or Paying Agent is unable to apply any cash or non-callable Government Securities
in accordance with
Section 8.2
,
8.3
or
8.5
hereof, as the case may be, by
reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Companys obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit had occurred
pursuant to
Section 8.4
hereof until such time as the Trustee or Paying Agent is permitted
to apply all such cash and securities in accordance with
Section 8.2
,
8.3
or
8.5
hereof, as the case may be;
provided
,
however
, that, if the Company makes any payment
of principal of, premium, if any, on, or interest or Additional Amounts, if any, on, any Security
of such series following the reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such series to receive such payment from the cash and securities held
by the Trustee or Paying Agent.
ARTICLE IX
Amendments
Section 9.1.
Without Consent of Holders
. Except as otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, the Company, any Guarantors and the Trustee may amend or supplement this
Indenture, the Securities or the Security Guarantees without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(3) to provide for the assumption of the Companys or a Guarantors obligations
to Holders of Securities of any series and Security Guarantees in the case of a
merger or consolidation or sale of all or substantially all of the Companys or such
Guarantors properties or assets, as applicable;
(4) to comply with requirements of the SEC in order to maintain the
qualification of this Indenture under the Trust Indenture Act;
(5) to make any change that would provide any additional rights or benefits to the Holders of
Securities of any series and Security Guarantees or that does not adversely affect the legal rights
under this Indenture of any such Holder;
(6) to add to the covenants of the Company or any Guarantor for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series), or to surrender any
right or power herein conferred upon the Company or any Guarantor;
(7) to add any additional Events of Default with respect to all or any series
of the Securities (and, if any such Event of Default is applicable to less than
all series of Securities, specifying the series to which such Event of Default is
applicable);
(8) to change or eliminate any of the provisions of this Indenture;
provided
that any such change or elimination shall become effective only when
43
there is no
outstanding Security of any series created prior to the execution of such amendment
or supplemental indenture that is adversely affected in any material respect by such
change in or elimination of such provision;
(9) to establish the form or terms of Securities of any series as permitted by
Section 2.1
;
(10) to supplement any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge of any
series of Securities pursuant to
Section 8.1
;
provided
,
however
, that any
such action shall not adversely affect the interest of the Holders of Securities of
such series or any other series of Securities in any material respect;
(11)
to add any Guarantor with respect to the Securities of any series by executing a supplemental indenture and/or a Security Guarantee with respect to such series, or release Security Guarantees of any series, in each case pursuant to the terms of this Indenture;
(12) to secure the Securities of any series;
(13) to evidence and provide for the acceptance under this Indenture of a
successor trustee; or
(14) to conform the text of this Indenture or any Securities to the description thereof in any
prospectus or prospectus supplement of the Company with respect to the offer and sale of Securities
of any series, to the extent that such provision is inconsistent with a provision of this Indenture
or the Securities.
After an amendment under this Indenture becomes effective, the Company is required to mail to
the Holders of each Security affected thereby a notice briefly describing such amendment. However,
the failure to give such notice to all the Holders of each Security affected thereof, or any defect
therein, will not impair or affect the validity of the amendment or supplemental indenture under
this
Section 9.1
.
Section 9.2.
With Consent of Holders
. Except as otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, except as provided below in this
Section 9.2
, the Company, any
Guarantors and the Trustee may amend or supplement this Indenture with the consent (including
consents obtained in connection with a tender offer or exchange offer for Securities) of the
Holders of a majority in principal amount of the then outstanding
Securities of each series affected
by such amendment or supplement (acting as separate classes).
Upon the request of the Company, accompanied by a Board Resolution, and upon the filing with
the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee
of the documents described in
Section 9.5
, the Trustee shall, subject to
Section
9.6
,
44
join with the Company and any Guarantors in the execution of such amendment or
supplemental indenture.
Except as otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, the Holders of a majority in principal amount of the then outstanding
Securities of one or more series or of all series affected by such
waiver (acting as separate classes) may
waive compliance in a particular instance by the Company or any Guarantor with any provision of
this Indenture with respect to Securities of such series (including waivers obtained in connection
with a tender offer or exchange offer for Securities of such series).
However, except as otherwise provided as contemplated by Section 2.1 with respect to the
Securities of any series, without the consent of each Holder affected, an amendment, supplement or
waiver may not (with respect to any Securities held by a non-consenting Holder):
(1) reduce the principal amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Security or
alter the provisions with respect to the redemption or repurchase of the Securities;
(3) reduce the rate of or change the time for payment of interest, including
default interest on any Security;
(4) waive a Default or Event of Default in the payment of principal of, or
interest or premium, or Additional Amounts, if any, on the Securities (except a
rescission of acceleration of the Securities by the Holders of at least a majority
in aggregate principal amount of the then outstanding Securities and a waiver of the
payment default that resulted from such acceleration);
(5) make any Security payable in currency other than that stated in the
Securities;
(6) make any change in the provisions of this Indenture relating to waivers of
past Defaults or the rights of Holders of Securities to receive payments of
principal of, or interest or premium, if any, on the Securities (other than as
permitted in
clause (7)
below);
(7) waive a redemption payment with respect to any Security;
(8) impair the right of a Holder of Securities to institute suit for the enforcement of any
payment on the Securities;
(9) release any Guarantor from any of its
obligations under its Security Guarantee or this Indenture, except in accordance
with the terms of this Indenture; or
(10) make any change in the preceding amendment, supplement and waiver
provisions.
45
It shall not be necessary for the consent of the Holders under this
Section 9.2
to
approve the particular form of any proposed amendment, but it shall be sufficient if such consent
approves the substance of the proposed amendment.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the
Holders of any other series.
A consent to any amendment or waiver under this Indenture by any Holder of the Securities
given in connection with a tender of such Holders Securities will not be rendered invalid by such
tender. After an amendment under this Section becomes effective, the Company shall mail to Holders
of each Security affected thereby a notice briefly describing such amendment. The failure to give
such notice to all Holders of each Security affected thereby, or any defect therein, shall not
impair or affect the validity of an amendment, supplemental indenture or waiver under this
Section 9.2
.
Section 9.3.
Compliance with Trust Indenture Act
. Every amendment or
supplement to this Indenture or the Securities shall comply with the
Trust Indenture Act of 1939 as
then in effect.
Section 9.4.
Revocation and Effect of Consents and Waivers
. A consent to an amendment or a waiver by a Holder of a Security shall be in writing and bind the
Holder and every subsequent Holder of that Security or portion of the Security that evidences the
same debt as the consenting Holders Security, even if notation of the consent or waiver is not
made on the Security. However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holders Security or portion of the Security if the Trustee receives
the notice of revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective with respect to a series of Securities, it shall bind every
Holder of Securities of such series.
For purposes of this Indenture, the written consent of the Holder of a Global Security shall
be deemed to include any consent delivered by an Agent Member by electronic means in accordance
with the Automated Tender Offer Procedures system or other customary procedures of, and pursuant to
authorization by, DTC.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. The Trustee may, but shall not be
obligated to, fix a record date for the purpose of determining the Holders of Securities of any
series entitled to join in the giving, making or taking of (i) any notice permit to
Section
6.1(4)
or otherwise of any Default, (ii) any declaration of acceleration pursuant to
Section 6.2
, (iii) any request to institute proceedings pursuant to
Section 6.6(2)
,
or (iv) any direction referred to in
Section 6.5
, in each case with respect to such series.
If a record date is so fixed, then notwithstanding the second preceding paragraph, those Persons
who were Holders at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to give such consent or to revoke any consent previously given or to take any
such action, whether or not such
46
Persons continue to be Holders after such record date. No such
consent shall become valid or effective more than 180 days after such record date.
Section 9.5.
Notation on or Exchange of Securities
. If an amendment changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security regarding the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such amendment.
Section 9.6.
Trustee To Sign Amendments
. The Trustee shall sign any amendment authorized pursuant to this
Article IX
if the
amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the Trustee shall be
entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to
Sections 7.1
and
7.2
) shall be fully protected in relying upon an Officers
Certificate and an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by
this Indenture, that such amendment is the legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, subject to customary exceptions, and that such amendment
complies with the provisions hereof (including Section 9.3)
.
ARTICLE X
Securities Guarantee
Section 10.1.
Securities Guarantee
. Securities of any series that are to be guaranteed by the Securities Guarantees of any
Guarantors shall be guaranteed by such Guarantors as shall be established pursuant to
Section
2.1
as Guarantors with respect to the Securities of such series; provided that, prior to the
authentication and delivery upon original issuance of Securities of any series that are to be
guaranteed by a Person, the Company, the Trustee and such Person shall have entered into a
supplemental indenture pursuant to
Section 9.1(10)
hereof whereby such Person shall have
executed a Securities Guarantee under this Indenture with respect to any series of Securities as to
which such Person has been so established pursuant to
Section 2.1
as a Guarantor thereof
and shall have made each of the covenants and agreements of a Guarantor hereunder with respect to
each such series.
Securities of any series that are to be guaranteed by the Securities Guarantees of any
Guarantors shall be guaranteed in accordance with the terms of such Securities Guarantees as
established pursuant to
Section 2.1
with respect to such series of Securities and such
Securities Guarantees thereof and (except as otherwise specified as contemplated by
Section
2.1
for such series of Securities and such Securities Guarantees thereof) in accordance with
this
Article X
. Notwithstanding any provision of this
Article X
to the contrary,
the provisions of this
Article X
relating to any Guarantor shall (i) be applicable only to,
and inure solely to the benefit of, the Securities of any series designated, pursuant to
Section 2.1
, as entitled to the benefits of the related Securities Guarantee of such
Guarantor with respect to such series and (ii) so be applicable, and inure to the benefit of, the
Securities of such series except to the extent otherwise provided as contemplated by
Section
2.1
with respect to the Securities of such series.
47
Any Guarantor shall fully, unconditionally and irrevocably guarantee, as primary obligor and
not merely as surety, jointly and severally with any other Guarantor, to each Holder of the
Securities and the Trustee the full and punctual payment when due, whether at maturity, by
acceleration, by redemption or otherwise, of the principal of, premium, if any, interest and
Additional Amounts, if any, on the Securities and all other monetary Obligations of the Company
under this Indenture. Any Guarantor shall further agree (to the extent permitted by law) that the
Obligations may be extended or renewed, in whole or in part, without notice or further assent from
it, and that it will remain bound under this
Article X
notwithstanding any extension or
renewal of any Obligation.
Any Guarantor shall waive presentation to, demand of payment from and protest to the Company
of any of the Obligations and also shall waive notice of protest for nonpayment. Any Guarantor
shall waive notice of any default under the Securities or the Obligations. The obligations of any
Guarantor shall not be affected by (a) the failure of any Holder to assert any claim or demand or
to enforce any right or remedy against the Company or any other Person under this Indenture, the
Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c)
any rescission, waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Securities or any other agreement; (d) the release of any
Security held by any Holder or the Trustee for the Obligations of any of them; (e) the failure
of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the
ownership of the Company.
Any Guarantor shall further agree that its Security Guarantee constitutes a Guarantee of
payment when due (and not a Guarantee of collection) and shall waive any right to require that any
resort be had by any Holder to any Security held for payment of the Obligations.
Except as expressly set forth in
Article VIII
and
Section 10.3
, the
obligations of each Guarantor shall not be subject to any reduction, limitation, impairment or
termination for any reason (other than payment of the Obligations in full), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of
the foregoing, the obligations of each Guarantor shall not be discharged or impaired or otherwise
affected by the failure of the Trustee or any Holder to assert any claim or demand or to enforce
any remedy under this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or
would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
Each Guarantor shall further agree that its Security Guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of
or interest or Additional Amounts, if any, on any of the Obligations is rescinded or must otherwise
be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
48
In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay
any of the Obligations when and as the same shall become due, whether at maturity, by acceleration,
by redemption or otherwise, each Guarantor shall, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the
unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such
Obligations then due and owing (but only to the extent not prohibited by law) and except as
provided in
Section 10.3
.
Each Guarantor shall further agree that, as between such Guarantor, on the one hand, and the
Holders, on the other hand, (x) the maturity of the Obligations Guaranteed may be accelerated as
provided in this Indenture for the purposes of its Security Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the Obligations
Guaranteed and (y) in the event of any such declaration of acceleration of such Obligations, such
Obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantor for the purposes of the Security Guarantee.
Each Guarantor also shall agree to pay any and all reasonable costs and expenses (including
reasonable attorneys fees) incurred by the Trustee or the Holders in enforcing any rights under
this
Section 10.1
.
Section 10.2.
Execution and Delivery of Securities Guarantees; Notations of Guarantees
. The Securities Guarantee of any Guarantor with respect to Securities of any series as to which
such Guarantor has been established as a Guarantor pursuant to
Section 2.1
shall be fully
evidenced by such Guarantors execution and delivery of a supplemental indenture hereto. Anything
herein to the contrary notwithstanding, there shall be no requirement that any Security having the
benefit of a Securities Guarantee have endorsed thereon or attached thereto such Securities
Guarantee or a notation of such Securities Guarantee. Solely with respect to Securities of any
series that are entitled to the benefits of any Securities Guarantee of any Guarantor and as to
which Notations of Guarantee are to be included on such Securities as designated pursuant to
Section 2.1(9)
, to further evidence its Securities Guarantee set forth in
Section
10.1
or otherwise established pursuant hereto with respect to Securities of such series, each
of the Guarantors with respect to Securities of any series shall agree that a notation relating to
such Securities Guarantee (the
Notation of Guarantee
), substantially in the form attached
hereto as Annex A, shall be endorsed on each Security of such series entitled to the benefits of
such Securities Guarantee authenticated and delivered by the Trustee, which Notation of Guarantee
shall be executed by either manual or facsimile signature of an Officer of such Guarantor. Each of
the Guarantors with respect to Securities of any series shall agree that its Securities Guarantee
set forth in
Section 10.1
or otherwise established pursuant hereto with respect to
Securities of such series shall remain in full force and effect notwithstanding any absence of
Notations of Guarantees as to such series or any failure to endorse on any Security the Notation of
Guarantee relating to such Securities Guarantee. If any Officer of any Guarantor with respect to
Securities of any series, whose signature is on the Notation of Guarantee on any Security of such
series, no longer holds that office at the time the Trustee authenticates any Security or at any
time thereafter, the Securities Guarantee of such Security shall be valid nevertheless. The
delivery of any Security of a series entitled to the benefits of a Securities Guarantee under this
Article X
or otherwise
49
established pursuant hereto by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of such Securities Guarantee on behalf of each
Guarantor.
Section 10.3.
Limitation on Liability; Termination, Release and Discharge
.
(a) The obligations of any Guarantor will be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such Guarantor and
after giving effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its Security Guarantee
or pursuant to its contribution obligations under this Indenture, result in the obligations
of such Guarantor under its Security Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law.
(b) The Security Guarantee of a Guarantor shall be automatically and unconditionally
released and discharged, without the consent of the Holders, and no further action by the
Company, any Guarantor or the Trustee shall be required for such release (unless the Company
shall notify the Trustee that no release and discharge shall occur as a result thereof)
upon:
(1) the sale or other disposition (including by way of consolidation or merger)
of such Guarantor to a Person other than the Company or any Subsidiary of the
Company as permitted by this Indenture; or
(2) upon Legal Defeasance or Covenant Defeasance as provided in
Article
VIII
or upon satisfaction and discharge of this Indenture as provided in
Article XI
.
(c) Any Guarantor not released from its obligations under its Security Guarantee shall
remain liable for the full amount of principal of and interest on the Securities and for the
other obligations of any Guarantor as provided in this Article X.
Section 10.4.
Limitation of Guarantors Liability
. Any Guarantor, and by its acceptance thereof each Holder, shall confirm that it is the intention
of all such parties that the Guarantee by such Guarantor pursuant to its Security Guarantee not
constitute a fraudulent transfer or
50
conveyance for purposes of the Federal Bankruptcy Code, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law. To effectuate the foregoing intention, the Holders and each Guarantor shall irrevocably
agree that the obligations of such Guarantor under its Security Guarantee will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its Security Guarantee
or pursuant to
Section 10.5
hereof, result in the obligations of such Guarantor under its
Security Guarantee not constituting such a fraudulent conveyance or fraudulent transfer. This
Section 10.4
is for the benefit of the creditors of each Guarantor.
Section 10.5.
Contribution
. In order to provide for just and equitable contribution among the Guarantors, the Guarantors
agree that in the event any payment or distribution is made by any Guarantor (a
Funding
Guarantor
) under its Security Guarantee, such Funding Guarantor will be entitled to a
contribution from each other Guarantor (if any) in a pro rata amount based on the Adjusted Net
Assets of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses
incurred by that Funding Guarantor in discharging the Companys obligations with respect to the
Securities or any other Guarantors obligations with respect to its Security Guarantee.
Section 10.6
Guarantors May Consolidate, etc., on Certain Terms.
(a) Except as otherwise provided in Section 10.3 in connection with any release and
discharge of a Guarantor, no Guarantor may consolidate or combine with or merge with or into
(whether or not such Guarantor is the surviving person) or sell or convey all or
substantially all of its assets to another Person whether or not affiliated with such
Guarantor, unless the Person formed by or surviving any such consolidation, combination or
merger or the transferee Person (in each case if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee.
In case of any such consolidation, merger, combination, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of such Security Guarantee and the due and
punctual performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall become a Guarantor (and succeed to
and be substituted for the predecessor to the extent of any release and discharge of such
predecessor pursuant to Section 10.3).
(b) Notwithstanding clause (a) above, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation, combination or merger of a Guarantor with or
into the Company or another Guarantor, or shall prevent any sale or conveyance of all or
substantially all of the assets of a Guarantor to the Company or another Guarantor.
ARTICLE XI
Satisfaction and Discharge
Section 11.1.
Satisfaction and Discharge
. This Indenture will be discharged and will cease to be of further effect as to all Securities of
any series issued hereunder (except as to surviving rights of registration of transfer or exchange
of such Securities and as otherwise specified hereunder), when:
(1) either:
(a) all Securities of such series that have been authenticated, except
lost, stolen or destroyed Securities that have been replaced or paid and
Securities of such series for whose payment money has been deposited in
trust and thereafter repaid to the Company, have been delivered to the
Trustee for cancellation; or
(b) all Securities of such series that have not been delivered to the
Trustee for cancellation have become due and payable or will become due and
payable within one year by reason of the mailing of a notice of redemption
or otherwise and the Company or any Guarantor has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders of Securities of such series, cash in U.S.
dollars, non-callable Government Securities, or a combination of cash in
U.S. dollars and non-callable Government Securities, in amounts as will be
sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on
51
such Securities not delivered to the
Trustee for cancellation for principal, premium, if any, and accrued
interest and Additional Amounts, if any, to the date of maturity or
redemption;
(2) no Default or Event of Default with respect to such series has occurred and
is continuing on the date of the deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) and the deposit
will not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(3) the Company or any Guarantor has paid or caused to be paid all sums payable
by it hereunder with respect to such series;
(4) the Company has delivered irrevocable instructions to the Trustee hereunder
to apply the deposited money toward the payment of such Securities at fixed maturity
or the Redemption Date, as the case may be; and
(5) the Company has delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, which state that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture with respect to such
series have been satisfied.
ARTICLE XII
Miscellaneous
Section 12.1.
Trust Indenture Act Controls
. If any provision of this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the TIA, the provision required by the TIA shall
control. Any Guarantor in addition to performing its obligations under its Security Guarantee
shall perform such other obligations as may be imposed upon it with respect to this Indenture under
the TIA.
Section 12.2.
Notices
. Any notice or communication shall be in writing and delivered in person, by telecopier or
overnight air courier guaranteeing next day delivery or mailed by first-class mail addressed as
follows:
if to the Company:
Dr Pepper Snapple Group, Inc.
5301 Legacy Drive
Plano, Texas 75024
Attention: General Counsel
52
if to the Trustee:
Wells Fargo Bank, N.A.
201 Main Street, Suite 301
Fort Worth, Texas 76102
Attention: John C. Stohlmann
The Company, any Guarantors or the Trustee by notice to the others may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the
Holders address as it appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed. The Registrar shall provide the Company with
address information with respect to the Holders as promptly as practicable following the Companys
request therefor. Any notice or communication shall also be mailed to any Person described in TIA
§ 3.13(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
Section 12.3.
Communication by Holders with other Holders
. Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights
under this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).
Section 12.4.
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:
(1) an Officers Certificate in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in
Section 12.5 hereof) stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in
Section 12.5 hereof) stating that, in the opinion of such counsel, all such conditions precedent
have been complied with.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company or any Guarantor may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such Officer knows, or in the exercise of reasonable care should know, that the
53
certificate
or opinion or representations with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based, and may state that
it is so based, insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company or such Guarantor stating that the
information with respect to such factual matters known to the Company or such Guarantor,
unless such counsel knows that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 12.5.
Statements Required in Certificate or Opinion
. Each certificate or opinion with respect to compliance with a covenant or condition provided for
in this Indenture (except for the Certificate specified in
Section 3.5
) shall include:
(1) a statement that the individual making such certificate or opinion has read
such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of such individual, he has made such
examination or investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such individual, such
covenant or condition has been complied with.
Section 12.6.
When Securities Disregarded
. In determining whether the Holders of the required principal amount of Securities of any series
have concurred in any direction, waiver or consent, Securities owned by the Company or by any
Person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded and deemed not to be outstanding, except that, for
the purpose of determining whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded.
Also, subject to the foregoing, only Securities outstanding at the time shall be considered in any
such determination.
Section 12.7.
Rules by Trustee, Paying Agent and Registrar
. The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Registrar
and the Paying Agent may make reasonable rules for their functions.
Section 12.8.
Legal Holidays
. A
Legal Holiday
is a Saturday, a Sunday or other day on which commercial banking
institutions are authorized or required to be closed in New York, New York. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding
54
day that is not a Legal Holiday,
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 12.9.
GOVERNING LAW
. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Section 12.10.
No Recourse Against Others
. No director, manager, officer, employee, incorporator, member, partner, stockholder or other
owner of Capital Stock of the Company or any Guarantor, as such, will have any liability for any
obligations of the Company or any Guarantor under the Securities, this Indenture or the Security
Guarantees or for any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder of Securities by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Securities.
Section 12.11.
Successors
. All agreements of the Company in this Indenture and the Securities shall bind its successors.
All agreements of the Trustee in this Indenture shall bind its successors.
Section 12.12.
Multiple Originals
. The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
Section 12.13.
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 12.14.
No Adverse Interpretation of Other Agreements
. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or any Subsidiary or any other Person. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture or the Security Guarantees.
Section 12.15.
Table of Contents; Headings
. The table of contents, cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions hereof.
55
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of
the date first written above.
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DR PEPPER SNAPPLE GROUP, INC.
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By:
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Name:
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Title:
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WELLS FARGO BANK, N.A., as Trustee
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By:
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Name:
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Title:
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56
ANNEX A
FORM OF NOTATION OF GUARANTEE
Each of the Guarantors (which term includes any successor Person under the Indenture) has
fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and all other amounts due and payable under the
Indenture and the Securities by the Company.
The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to
the Securities Guarantee and the Indenture are expressly set forth in
Article X
of the
Indenture and reference is hereby made to the Indenture for the precise terms of the Securities
Guarantee.
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[NAME OF GUARANTOR]
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By:
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Name:
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Title:
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Exhibit 4.2
DR PEPPER SNAPPLE GROUP, INC.
and
,
as Trustee
INDENTURE
Dated as of
SUBORDINATED DEBT SECURITIES
TABLE OF CONTENTS
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Page
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ARTICLE I 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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11
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Section 1.3. Incorporation by Reference of Trust Indenture Act
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12
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Section 1.4. Rules of Construction
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13
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ARTICLE II THE SECURITIES
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13
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Section 2.1. Form, Dating and Terms
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13
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Section 2.2. Denominations
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16
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Section 2.3. Forms Generally
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17
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Section 2.4. Execution, Authentication, Delivery and Dating
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17
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Section 2.5. Registrar and Paying Agent
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19
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Section 2.6. Paying Agent to Hold Money in Trust
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19
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Section 2.7. Holder Lists
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20
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Section 2.8. Transfer and Exchange
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20
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Section 2.9. Mutilated, Destroyed, Lost or Wrongfully Taken Securities
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21
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Section 2.10. Outstanding Securities
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21
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Section 2.11. Cancellation
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22
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Section 2.12. Payment of Interest; Defaulted Interest
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22
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Section 2.13. Temporary Securities
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23
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Section 2.14. Persons Deemed Owners
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23
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Section 2.15. Computation of Interest
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24
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Section 2.16. Global Securities; Book-Entry Provisions
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24
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Section 2.17. CUSIP Numbers, Etc
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26
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Section 2.18. Original Issue Discount and Foreign-Currency Denominated Securities
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26
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ARTICLE III COVENANTS
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27
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Section 3.1. Payment of Securities
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27
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Section 3.2. Reports
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27
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Section 3.3. Maintenance of Office or Agency
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27
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Section 3.4. Corporate Existence
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28
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Section 3.5. Compliance Certificate
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28
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Section 3.6. Statement by Officers as to Default
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28
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Section 3.7. Additional Amounts
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28
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ARTICLE IV SUCCESSORS
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29
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Section 4.1. Merger, Consolidation or Sale of Assets
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29
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ARTICLE V REDEMPTION OF SECURITIES
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30
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Section 5.1. Applicability of Article
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30
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Section 5.2. Election to Redeem; Notice to Trustee
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30
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Section 5.3. Selection by Trustee of Securities to Be Redeemed
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30
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Section 5.4. Notice of Redemption
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30
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i
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Page
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Section 5.5. Deposit of Redemption Price
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32
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Section 5.6. Securities Payable on Redemption Date
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32
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Section 5.7. Securities Redeemed in Part
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32
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ARTICLE VI DEFAULTS AND REMEDIES
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33
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Section 6.1. Events of Default
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33
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Section 6.2. Acceleration
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34
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Section 6.3. Other Remedies
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35
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Section 6.4. Waiver of Past Defaults
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35
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Section 6.5. Control by Majority
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35
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Section 6.6. Limitation on Suits
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36
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Section 6.7. Rights of Holders to Receive Payment
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36
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Section 6.8. Collection Suit by Trustee
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36
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Section 6.9. Trustee May File Proofs of Claim
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36
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Section 6.10. Priorities
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37
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Section 6.11. Undertaking for Costs
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37
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ARTICLE VII TRUSTEE
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38
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Section 7.1. Duties of Trustee
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38
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Section 7.2. Rights of Trustee
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39
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Section 7.3. Individual Rights of Trustee
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40
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Section 7.4. Trustees Disclaimer
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40
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Section 7.5. Notice of Defaults
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41
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Section 7.6. Reports by Trustee to Holders
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41
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Section 7.7. Compensation and Indemnity
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41
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Section 7.8. Replacement of Trustee
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42
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Section 7.9. Successor Trustee by Merger
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43
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Section 7.10. Eligibility; Disqualification
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44
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Section 7.11. Preferential Collection of Claims Against Company
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44
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ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
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44
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Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance
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44
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Section 8.2. Legal Defeasance and Discharge
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44
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Section 8.3. Covenant Defeasance
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45
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Section 8.4. Conditions to Legal or Covenant Defeasance
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45
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Section 8.5. Deposited Cash and Government Securities to be Held in
Trust; Other Miscellaneous Provisions
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47
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Section 8.6. Repayment to Company
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47
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Section 8.7. Reinstatement
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48
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ARTICLE IX AMENDMENTS
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48
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Section 9.1. Without Consent of Holders
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48
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Section 9.2. With Consent of Holders
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49
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Section 9.3. Compliance with Trust Indenture Act
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51
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Section 9.4. Revocation and Effect of Consents and Waivers
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51
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Section 9.5. Notation on or Exchange of Securities
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52
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Section 9.6. Trustee To Sign Amendments
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52
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ii
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Page
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ARTICLE X SUBORDINATION
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52
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Section 10.1. Securities and Any Guarantees Subordinated to Senior Debt
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52
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Section 10.2. No Payment on Securities in Certain Circumstances
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53
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Section 10.3. Securities and Any Guarantees Subordinated to Prior
Payment of All Senior Debt on Dissolution, Liquidation or Reorganization
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54
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Section 10.4. Subrogation to Rights of Holders of Senior Debt
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55
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Section 10.5. Obligations of the Company and Any Guarantors Unconditional
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55
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Section 10.6. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice
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56
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Section 10.7. Application by Trustee of Amounts Deposited with It
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56
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Section 10.8. Subordination Rights Not Impaired by Acts or Omissions of
the Company, Any Guarantors or Holders of Senior Debt
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57
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Section 10.9. Trustee to Effectuate Subordination of Securities
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57
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Section 10.10. Right of Trustee to Hold Senior Debt
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58
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Section 10.11. Article X Not to Prevent Events of Default
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58
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Section 10.12. No Fiduciary Duty of Trustee to Holders of Senior Debt
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58
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Section 10.13. Article Applicable to Paying Agent
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58
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ARTICLE XI SECURITIES GUARANTEE
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58
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Section 11.1. Securities Guarantee
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58
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Section 11.2. Execution and Delivery of Securities Guarantees; Notations
of Guarantees
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60
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Section 11.3. Limitation on Liability; Termination, Release and Discharge
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61
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Section 11.4. Limitation of Guarantors Liability
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62
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Section 11.5. Contribution
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62
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Section 11.6. Guarantors May Consolidate, etc., on Certain Terms.
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62
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ARTICLE XII SATISFACTION AND DISCHARGE
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62
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Section 12.1. Satisfaction and Discharge
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62
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ARTICLE XIII MISCELLANEOUS
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63
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Section 13.1. Trust Indenture Act Controls
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63
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Section 13.2. Notices
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64
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Section 13.3. Communication by Holders with other Holders
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64
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Section 13.4. Certificate and Opinion as to Conditions Precedent
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64
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Section 13.5. Statements Required in Certificate or Opinion
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65
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Section 13.6. When Securities Disregarded
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65
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Section 13.7. Rules by Trustee, Paying Agent and Registrar
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66
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Section 13.8. Legal Holidays
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66
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Section 13.9. GOVERNING LAW
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66
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Section 13.10. No Recourse Against Others
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66
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Section 13.11. Successors
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66
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Section 13.12. Multiple Originals
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66
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Section 13.13. Severability
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66
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Section 13.14. No Adverse Interpretation of Other Agreements
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66
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Section 13.15. Table of Contents; Headings
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66
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iii
CROSS-REFERENCE TABLE
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TIA
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Indenture
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Section
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Section
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310(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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N.A.
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(a)(4)
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N.A.
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(b)
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7.8; 7.10
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(c)
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N.A.
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311(a)
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7.11
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(b)
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7.11
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(c)
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N.A.
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312(a)
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2.7
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(b)
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13.3
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(c)
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13.3
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313(a)
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7.6
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(b)(1)
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7.6
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(b)(2)
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7.6
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(c)
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7.6
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(d)
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7.6
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314(a)
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3.2; 3.5; 13.2
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(b)
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N.A.
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(c)(1)
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13.4
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(c)(2)
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13.4
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(c)(3)
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N.A.
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(d)
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N.A.
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(e)
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13.5
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315(a)
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7.1
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(b)
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7.5; 13.2
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(c)
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7.1
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(d)
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7.1
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(e)
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6.11
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316(a)(last sentence)
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13.6
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(a)(1)(A)
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6.5
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(a)(1)(B)
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6.4
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(a)(2)
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N.A.
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(b)
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6.7
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317(a)(1)
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6.8
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(a)(2)
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6.9
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(b)
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2.6
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318(a)
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13.1
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N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this
Indenture.
iv
THIS
INDENTURE, dated as of
,
is entered into by and between DR PEPPER SNAPPLE
GROUP, INC., a Delaware corporation (the
Company
), and
, a
, as trustee (the
Trustee
).
W I T N E S S E T H:
WHEREAS,
the Company may from time to time duly authorize the issue of its unsecured
subordinated debentures, notes or other evidences of indebtedness to be issued in one or more
series (the
Securities
) up to such principal amount or amounts as may from time to time
be authorized in accordance with the terms of this Indenture;
WHEREAS,
the Company has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
and
WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the holders thereof,
the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities as follows:
ARTICLE I
Definitions and Incorporation by Reference
Section 1.1.
Definitions
.
Additional Amounts
means any additional amounts required by the express terms of a
Security or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant
thereto, to be paid by the Company with respect to certain taxes, assessments or other governmental
charges imposed on certain Holders and that are owing to those Holders.
Adjusted Net Assets
of a Guarantor at any date means the amount by which the fair
value of the properties and assets of such Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding liabilities under its
Securities Guarantee, of such Guarantor at such date.
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 purposes of this definition, control, as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or
1
otherwise. For purposes of this definition, the terms controlling, controlled by and
under common control with have correlative meanings.
Attributable Debt
in respect of a sale and leaseback transaction means, at the time
of determination, the present value of the obligation of the lessee for net rental payments during
the remaining term of the lease included in such sale and leaseback transaction including any
period for which such lease has been extended or may, at the option of the lessor, be extended.
Such present value shall be calculated using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with GAAP.
Bankruptcy Law
means Title 11,
United States Code
or any similar Federal or
state law for the relief of debtors.
Board of Directors
means:
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(1)
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with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;
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(2)
|
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with respect to a partnership, the board of directors of the general partner of
the partnership;
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(3)
|
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with respect to a limited liability company, the managing member or members or
any controlling committee of managing members thereof; and
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(4)
|
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with respect to any other Person, the board or committee of such Person serving
a similar function.
|
Board Resolution
means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the applicable Person to have been duly adopted by the Board of Directors of
such Person and to be in full force and effect on the date of such certification, and delivered to
the Trustee.
Business Day
means each day that is not a Saturday, Sunday or other day on which
banking institutions in New York, New York or another place of payment are authorized or required
by law to close.
Capital Lease Obligation
means, at the time any determination is to be made, the
amount of the liability in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be prepaid by the lessee without payment of a penalty.
Capital Stock
means:
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(1)
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in the case of a corporation, corporate stock;
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2
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(2)
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in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock;
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(3)
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in the case of a partnership or limited liability company, partnership
interests (whether general or limited) or membership interests; and
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(4)
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any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person,
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but excluding from all of the foregoing any debt securities convertible into Capital
Stock, whether or not such debt securities include any right of participation with
Capital Stock.
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Code
means the Internal Revenue Code of 1986, as amended.
Company
has the meaning ascribed to it in the first introductory paragraph of this
Indenture.
Company Order
and
Company Request
mean, respectively, a written order or
request signed in the name of the Company by two Officers of the Company, and delivered to the
Trustee.
Credit Agreements
means that certain Amended and Restated Credit Agreement and that
certain Amended and Restated Bridge Credit Agreement, each dated April 11, 2008, by and among the
Company, the various lenders thereunder and JPMorgan Chase Bank, N.A., as administrative agent,
including any related notes, Guarantees, collateral documents, instruments and agreements executed
in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded,
replaced (whether upon or after termination or otherwise), supplemented or refinanced (including by
means of sales of debt securities to institutional investors) in whole or in part from time to
time.
Credit Facilities
means, with respect to the Company or any of its Subsidiaries, one
or more debt facilities (including, without limitation, the Credit Agreements), commercial paper
facilities or debt issuances with banks, investment banks, insurance companies, mutual funds, other
institutional lenders, institutional investors or any of the foregoing providing for revolving
credit loans, term loans, receivables financing (including through the sale of receivables to such
lenders, other financiers or to special purpose entities formed to borrow from (or sell such
receivables to) such lenders or other financiers against such receivables), letters of credit,
bankers acceptances, other borrowings or debt issuances, in each case, as amended, restated,
modified, renewed, extended, refunded, replaced or refinanced (in each case, without limitation as
to amount), in whole or in part, from time to time (including through one or more debt issuances)
and any agreements and related documents governing Indebtedness or Obligations incurred to
refinance amounts then outstanding or permitted to be outstanding, whether or not with the original
administrative agent, lenders, investment banks, insurance companies, mutual funds, other
institutional lenders, institutional investors or any of the foregoing and whether provided under
the original agreement, indenture or other documentation relating thereto).
3
Custodian
means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.
Default
means any event that is, or with the passage of time or the giving of notice
or both would be, an Event of Default.
Depositary
means, with respect to the Securities of any series issuable or issued in
whole or in part in global form, the Person specified pursuant to
Section 2.1
hereof as the
initial Depositary with respect to the Securities of that series, until a successor shall have been
appointed and become such pursuant to the applicable provision of this Indenture, and thereafter
Depositary shall mean or include that successor.
Designated Senior Debt
, unless otherwise provided with respect to the Securities of
a series as contemplated by
Section 2.1
, means any Senior Debt of the Company that (i) in
the instrument evidencing the same or the assumption or guarantee thereof (or related documents to
which the Company or any Guarantor is a party) is expressly designated as Designated Senior Debt
for purposes of this Indenture and (ii) satisfies such other conditions as may be provided with
respect to the Securities of that series; provided that those instruments or documents may place
limitations and conditions on the right of that Senior Debt to exercise the rights of Designated
Senior Debt.
Disqualified Stock
means, with respect to any series of Securities, any Capital
Stock that, by its terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon
the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole
or in part, on or prior to the date that is 91 days after the date on which the Securities of such
series mature;
provided
, that only the portion of Capital Stock which so matures or is mandatorily
redeemable, or is so redeemable at the option of the holder thereof prior to such date, will be
deemed to be Disqualified Stock. With respect to any series of Securities, notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock
if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption complies with the
terms applicable to such series. The amount of Disqualified Stock deemed to be outstanding at any
time for purposes of this Indenture will be the maximum amount that the Company and its
Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory
redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.
Dollar
or $ means a dollar or other equivalent unit in such coin or currency of
the United States as at the time shall be legal tender for the payment of public and private debt.
DTC
means The Depository Trust Company, its nominees and their respective successors
and assigns, or such other depositary institution hereinafter appointed by the Company.
4
Equity Interests
means Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock).
Exchange Act
means the Securities Exchange Act of 1934, as amended.
Fair Market Value
means the value that would be paid by a willing buyer to an
unaffiliated willing seller in a transaction not involving distress or necessity of either party,
determined in good faith by the Board of Directors of the Company (unless otherwise provided in
this Indenture), which determination will be conclusive for all purposes under this Indenture.
GAAP
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Public Company Accounting Oversight Board (United States) and statements and
pronouncements of the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting profession, which are
in effect as of the date of determination.
Global Securities
of any series means a Security of that series that is issued in
global form in the name of the Depositary with respect thereto or its nominee.
Government Securities
means direct obligations of, or obligations guaranteed by, the
United States of America for the payment of which obligations or guarantee the full faith and
credit of the United States of America is pledged.
Guarantee
means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to maintain financial statement conditions
or otherwise), or entered into for purposes of assuring in any other manner the obligee of such
indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part).
Guarantors
means, with respect to any series of Securities, the Person or Persons,
if any, named in accordance with
Section 2.1(9)
as the Guarantors with respect to such
series and which shall have entered into a supplemental indenture pursuant to
Section
9.1(10)
hereof whereby such Person shall have executed a Securities Guarantee under this
Indenture with respect to such series of Securities until, as to any particular Guarantor, a
successor Person shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter any reference to such Guarantor shall mean such successor Person. If a series of
Securities does
5
not have any Guarantors, all references in this Indenture to Guarantors shall have no effect
and shall be ignored with respect to such Securities.
Hedging Obligations
means, with respect to any specified Person, the obligations of
such Person under:
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(1)
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interest rate swap agreements (whether from fixed to floating or from floating
to fixed), interest rate cap agreements and interest rate collar agreements entered
into with one or more financial institutions and other arrangements or agreements
designed to protect the Person entering into the agreement against fluctuations in
interest rates with respect to Indebtedness incurred and not for purposes of
speculation;
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(2)
|
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foreign exchange contracts and currency protection agreements entered into with
one or more financial institutions and designed to protect the Person entering into the
agreement against fluctuations in currency exchange rates with respect to Indebtedness
incurred and not for purposes of speculation; and
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(3)
|
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other agreements or arrangements designed to protect such Person against
fluctuations in interest rates, commodity prices or currency exchange rates.
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Holder
means a Person in whose name a Security is registered in the applicable
Security Register.
Indebtedness
means, with respect to any specified Person, any indebtedness of such
Person (excluding accrued expenses and trade payables), whether or not contingent:
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(1)
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in respect of borrowed money;
|
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(2)
|
|
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof);
|
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(3)
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in respect of bankers acceptances;
|
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(4)
|
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representing Capital Lease Obligations or Attributable Debt in respect of sale
and leaseback transactions;
|
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(5)
|
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representing the balance deferred and unpaid of the purchase price of any
property due more than nine months after such property is acquired;
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(6)
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the principal component or liquidation preference of all obligations of such
Person with respect to the redemption, repayment or other repurchase of any
Disqualified Stock or, with respect to any Subsidiary, any Preferred Stock (but
excluding, in each case, any accrued dividends);
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(7)
|
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representing any Hedging Obligations;
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6
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(8)
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the principal component of all Indebtedness of other Persons secured by a Lien
on any asset of such Person, whether or not such Indebtedness is assumed by such
Person;
provided, however
, that the amount of such Indebtedness will be the lesser of
(a) the Fair Market Value of such asset at such date of determination and (b) the
amount of such Indebtedness of such other Persons; and
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(9)
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the principal component of Indebtedness of other Persons to the extent
Guaranteed by such Person;
|
provided
, that the indebtedness described in clauses (1), (2), (4) and (5) shall be included in
this definition of Indebtedness only if, and to the extent that, the indebtedness described in such
clauses would appear as a liability upon a balance sheet of such Person prepared in accordance with
GAAP.
The amount of any Indebtedness outstanding as of any date will be:
|
(1)
|
|
the accreted value of the Indebtedness, in the case of any Indebtedness issued
with original issue discount;
|
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(2)
|
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in the case of any Hedging Obligation, the termination value of the agreement
or arrangement giving rise to such Hedging Obligation that would be payable by such
Person at such date; and
|
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(3)
|
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the principal amount of the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due, in the case of any other Indebtedness.
|
The amount of Indebtedness of any Person at any date will be the outstanding balance at such
date of all unconditional obligations as described above and the maximum liability, upon the
occurrence of the contingency giving rise to the obligation, of any contingent obligations at such
date.
In addition, Indebtedness of any Person shall include Indebtedness described in the
preceding paragraph that would not appear as a liability on the balance sheet of such Person if:
|
(1)
|
|
such Indebtedness is the obligation of a partnership or joint venture that is
not a Subsidiary (a
Joint Venture
);
|
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(2)
|
|
such Person or a Subsidiary of such Person is a general partner of the Joint
Venture (a
General Partner
); and
|
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(3)
|
|
there is recourse, by contract or operation of law, with respect to the payment
of such Indebtedness to property or assets by such Person or a Subsidiary of such
Person; and then such Indebtedness shall be included in an amount not to exceed:
|
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(a)
|
|
the lesser of (i) the net assets of the General Partner and
(ii) the amount of such obligations to the extent that there is recourse, by
contract or
|
7
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operation of law, to the property or assets of such Person or a Subsidiary
of such Person; or
|
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(b)
|
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if less than the amount determined pursuant to clause (a)
immediately above, the actual amount of such Indebtedness that is recourse to
such Person or a Subsidiary of such Person, if the Indebtedness is evidenced by
a writing and is for a determinable amount.
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Indenture
means this Indenture as amended or supplemented from time to time by one
or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental indenture, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term Indenture shall also include the terms of any
particular series of Securities and of any Securities Guarantees thereof established as
contemplated by
Section 2.1
.
Interest Payment Date
, when used with respect to any Security, shall have the
meaning assigned to that term in the Security as contemplated by
Section 2.1
.
Junior security
of a Person means, when used with respect to the Securities of any
series, any Capital Stock (other than Disqualified Stock) of that Person or any Indebtedness of
that Person that is subordinated in right of payment to Senior Debt of the Company to substantially
the same extent as, or to a greater extent than, the Securities of that series and has no scheduled
installment of principal due, by redemption, sinking fund payment or otherwise, on or prior to the
last Stated Maturity of the Securities of that series.
Maturity
means, with respect to any Security, the date on which the principal of
that Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity thereof, or by declaration of acceleration, call for redemption or
otherwise.
Non-U.S. Person
means a person who is not a U.S. person, as defined in Regulation S.
Obligations
means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
indebtedness.
Officer
means the Chairman of the Board, the President, the Chief Financial Officer,
any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company.
Officers Certificate
means a certificate signed by two Officers, at least one of
whom shall be the President, the Chief Financial Officer or the Treasurer.
8
Opinion of Counsel
means a written opinion from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the
Trustee.
Original Issue Discount Security
means any Security that provides for an amount less
than the principal amount thereof to be due and payable on a declaration of acceleration of the
Maturity thereof pursuant to
Section 6.2
.
Person
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
Redemption Date
when used with respect to any Security to be redeemed, in whole or
in part, means the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price
means, with respect to any Security to be redeemed, the price at
which it is to be redeemed pursuant to this Indenture.
Responsible Officer
means any officer within the corporate trust department of any
Trustee or any Paying Agent having direct responsibility for the administration of this Indenture
or any other officer to whom any corporate trust matter is referred because of such persons
knowledge of and familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
SEC
means the Securities and Exchange Commission.
Securities
has the meaning ascribed to it in the second introductory paragraph of
this Indenture.
Securities Act
means the Securities Act of 1933, as amended.
Securities Guarantee
means the Guarantee by each Guarantor of the Companys
Obligations under this Indenture and any series of Securities.
Securities Register
means the register of Securities, maintained by the Registrar,
pursuant to
Section 2.5
.
Security Custodian
means, with respect to Securities of a series issued in global
form, the Trustee for Securities of that series, as custodian with respect to the Securities of
that series, or any successor entity thereto.
9
Senior Debt
means, unless otherwise provided with respect to the Securities of a
series as contemplated by
Section 2.1
:
|
(1)
|
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all Indebtedness of the Company or any of its Subsidiaries outstanding under
Credit Facilities and all Hedging Obligations with respect thereto;
|
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(2)
|
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any other Indebtedness of the Company or any of its Subsidiaries permitted to
be incurred under the terms of this Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is subordinated in right of payment
to the Securities or any Security Guarantee; and
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(3)
|
|
all Obligations with respect to the items listed in the preceding clauses (1)
and (2).
|
Notwithstanding anything to the contrary in the preceding sentence, Senior Debt will
not include:
|
(a)
|
|
any intercompany Indebtedness of the Company or any of its
Subsidiaries to the Company or any of its Affiliates; or
|
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(b)
|
|
any Indebtedness that is incurred in violation of this
Indenture.
|
For the avoidance of doubt, Senior Debt will not include any trade payables or taxes owed or
owing by the Company or any Subsidiary.
Significant Subsidiary
means any Subsidiary that would be a significant subsidiary
as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act,
as such Regulation is in effect on the date of this Indenture.
Stated Maturity
means, with respect to any installment of interest or principal on
any series of indebtedness, the date on which the payment of interest or principal was scheduled to
be paid in the documentation governing such indebtedness as of the date of this Indenture, and will
not include any contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
Subsidiary
of any specified Person means any corporation, association or other
business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person or a combination thereof.
10
TIA
or
Trust Indenture Act
, except as otherwise
provided in Section 9.3 means, the Trust Indenture Act of 1939 (15
U.S.C.
§§ 77aaa 77bbbb), as in effect on the
date hereof.
Trust Officer
shall mean, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the Persons who at the
time shall be such officers, respectively, or to whom any corporate trust matter is referred
because of such persons knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
Trustee
means the Person named as such above until a successor replaces it in
accordance with the applicable provisions of this Indenture, and thereafter Trustee means 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 means the Trustee with respect to
Securities of that series.
Voting Stock
of any specified Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of Directors of such
Person.
Section 1.2.
Other Definitions
.
|
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|
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Defined in
|
Term
|
|
Section
|
Agent Members
|
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2.16
|
Certificate of Destruction
|
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2.11
|
Corporate Trust Office
|
|
3.3
|
Covenant Defeasance
|
|
8.3
|
Defaulted Interest
|
|
2.12
|
Event of Default
|
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6.1
|
Exchange Rate
|
|
2.18
|
Funding Guarantor
|
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11.5
|
Legal Defeasance
|
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8.2
|
Legal Holiday
|
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13.8
|
11
|
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Defined in
|
Term
|
|
Section
|
Notation of Guarantee
|
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11.2
|
Paying Agent
|
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2.5
|
Payment Blocking Notice
|
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10.2
|
Payment Default
|
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10.2
|
protected purchaser
|
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2.9
|
Registrar
|
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2.5
|
Special Interest Payment Date
|
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2.12(a)
|
Special Record Date
|
|
2.12(a)
|
Surviving Entity
|
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4.1
|
Section 1.3.
Incorporation by Reference of Trust Indenture Act
. This Indenture is subject to the
mandatory provisions of the TIA which are incorporated by reference in and made a part of this
Indenture. The following TIA terms have the following meanings:
Commission means the SEC.
indenture securities means the Securities.
indenture security holder means a Holder of a Security.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on any series of Securities means the Company, any Guarantors and any other obligor
on such series of Securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined in the TIA by
reference to another statute or defined by SEC rules have the meanings assigned to them by such
definitions.
12
Section 1.4.
Rules of Construction
. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3) or is not exclusive;
(4) including means including without limitation;
(5) words in the singular include the plural and words in the plural include
the singular;
(6) the principal amount of any noninterest bearing or other discount security
at any date shall be the principal amount thereof that would be shown on a balance
sheet of the Company dated such date prepared in accordance with GAAP; and
(7) provisions apply to successive events and transactions.
ARTICLE II
The Securities
Section 2.1.
Form, Dating and Terms
.
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. There shall be established in or pursuant
to a Board Resolution, and set forth, or determined in the manner provided, in an Officers
Certificate of the Company or in a Company Order, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from the Securities of all other series);
(2) if there is to be a limit, the 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
2.8, 2.9, 2.13, 2.16, 5.7 or 9.5
and except for any
Securities that, pursuant to
Section 2.4 or 2.16
, are deemed never to have
been authenticated and delivered hereunder);
provided, however
, that unless
otherwise provided in the terms of the series, the authorized aggregate principal
amount of
such series may be increased before or after the issuance of any Securities of
the
13
series by a Board Resolution (or action pursuant to a Board Resolution) to such
effect;
(3) whether any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are to be issuable in
permanent global form, as Global Securities or otherwise, and, if so, whether
beneficial owners of interests in any such Global Security may exchange such
interests for Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if
other than in the manner provided in
Section 2.16
, and the initial
Depositary and Security Custodian, if any, for any Global Security or Securities of
such series;
(4) the manner in which any interest payable on a temporary Global Security on
any Interest Payment Date will be paid if other than in the manner provided in
Section 2.12
;
(5) the date or dates on which the principal of and premium (if any) on the
Securities of the series is payable or the method of determination thereof;
(6) the rate or rates, or the method of determination thereof, at which the
Securities of the series shall bear interest, if any, whether and under what
circumstances Additional Amounts with respect to such Securities shall be payable,
the date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable and the record date for the interest payable
on any Securities on any Interest Payment Date, or if other than provided herein,
the Person to whom any interest on Securities of the series shall be payable;
(7) the place or places where, subject to the provisions of
Section
3.3
, the principal of, premium (if any) and interest on and any Additional
Amounts with respect to the Securities of the series shall be payable;
(8) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and conditions
upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have that option, and the manner in
which the Company must exercise any such option, if different from those set forth
herein;
(9) whether Securities of the series are entitled to the benefits of any
Securities Guarantee of any Guarantor pursuant to this Indenture, the identity of
any such Guarantors, whether Notations of such Securities Guarantees are to be
included on such Securities and any terms of such Securities Guarantee with respect
to the Securities of the series in addition to those set forth in
Article
XI
, or any exceptions to or changes to those set forth in
Article XI
;
14
(10) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or at
the option of a Holder thereof and the period or periods within which, the price or
prices (whether denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series shall be redeemed, purchased or
repaid in whole or in part pursuant to such obligation;
(11)
if other than denominations of $1,000 and any integral multiple in
excess thereof,
the denomination in which any Securities of that series shall be issuable;
(12) if other than Dollars, the currency or currencies (including composite
currencies) or the form, including equity securities, other debt securities
(including Securities), warrants or any other securities or property of the Company,
any Guarantor or any other Person, in which payment of the principal of, premium (if
any) and interest on and any Additional Amounts with respect to the Securities of
the series shall be payable;
(13) if the principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a currency or currencies (including
composite currencies) other than that in which the Securities are stated to be
payable, the currency or currencies (including composite currencies) in which
payment of the principal of, premium (if any) and interest on and any Additional
Amounts with respect to Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and conditions upon
which such election is to be made;
(14) if the amount of payments of principal of, premium (if any) and interest
on and any Additional Amounts with respect to the Securities of the series may be
determined with reference to any commodities, currencies or indices, values, rates
or prices or any other index or formula, the manner in which such amounts shall be
determined;
(15) if other than the entire principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to
Section 6.2
;
(16) any additional means of satisfaction and discharge of this Indenture and
any additional conditions or limitations to discharge with respect to Securities of
the series and the related Securities Guarantees, if any, pursuant to
Article
VIII
or any modifications of or deletions from such conditions or limitations;
(17) any deletions or modifications of or additions to the Events of Default
set forth in
Section 6.1
or covenants of the Company or any Guarantor set
forth in
Article III
pertaining to the Securities of the series;
15
(18) any restrictions or other provisions with respect to the transfer or
exchange of Securities of the series, which may amend, supplement, modify or
supersede those contained in this
Article II
;
(19) if the Securities of the series are to be convertible into or exchangeable
for capital stock, other debt securities (including Securities), warrants, other
equity securities or any other securities or property of the Company, any Guarantor
or any other Person, at the option of the Company or the Holder or upon the
occurrence of any condition or event, the terms and conditions for such conversion
or exchange;
(20) if applicable, that the Securities of the series, in whole or any
specified part, shall not be defeasible pursuant to
Section 8.2
or
Section 8.3
or both such Sections, and, if such Securities may be defeased,
in whole or in part, pursuant to either or both such Sections, any provisions to
permit a pledge of obligations other than Government Securities (or the
establishment of other arrangements) to satisfy the requirements of
Section
8.4(1)
for defeasance of such Securities and, if other than by a Board
Resolution of the Company, the manner in which any election by the Company to
defease such Securities shall be evidenced;
(21) any modifications to, or qualifications contemplated by, the definition of
Designated Senior Debt, any modifications to the definition of Senior Debt of
the Company or any modifications to
Article X
or the other provisions
regarding subordination with respect to the Securities of that series; and
(22) any other terms of the series (which terms shall not be prohibited by the
provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to
Section 2.3
) set forth, or determined in the manner provided, in the
Officers Certificate or Company Order referred to above or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action, together with such Board Resolution,
shall be set forth in an Officers Certificate or certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers
Certificate or Company Order setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior Debt of the Company as
provided in
Article X
and/or as specified as contemplated pursuant to this
Section
2.1
.
Section 2.2.
Denominations
. The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by
Section 2.1
. In the absence of any such provisions
with respect to the Securities
of any series, the Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.
16
Section 2.3.
Forms Generally
. The Securities of each series shall be in fully registered form and in
substantially such form or forms (including temporary or permanent global form) established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto. The Securities
may have notations, legends or endorsements required by law, securities exchange rule, the
Companys certificate of incorporation, bylaws or other similar governing documents, agreements to
which the Company is subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). A copy of the Board Resolution establishing
the form or forms of Securities of any series shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by
Section 2.4
for the authentication and
delivery of such Securities.
The definitive Securities of each series shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by the Officers
executing such Securities, as evidenced by their execution thereof.
The Trustees certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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[ ], as Trustee
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By:
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Authorized Officer
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Section 2.4.
Execution, Authentication, Delivery and Dating
. Two Officers of the Company shall sign the
Securities on behalf of the Company and, with respect to any related Securities Guarantees,
Notations of Guarantee as to which are to be endorsed on such Securities, an Officer of each
Guarantor shall sign the Notation of Guarantee on behalf of such Guarantor, in each case by manual
or facsimile signature.
If an Officer of the Company or a Guarantor whose signature is on a Security no longer holds
that office at the time the Security or the Notation of Guarantee, as the case may be, is
authenticated, the Security or Notation of Guarantee shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or any related Securities
Guarantees or be valid or obligatory for any purpose until authenticated by the manual signature of
an authorized signatory of the Trustee, which signature shall be conclusive evidence that the
Security has been authenticated under this Indenture. Notwithstanding the foregoing, if any
Security has been authenticated and delivered hereunder but never issued and sold by the Company,
and the Company delivers such Security to the Trustee for cancellation as provided in
Section
2.11
, together with a written statement (which need not comply with
Section 13.5
and
need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued
and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture or the related Securities Guarantees.
17
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company (and, if applicable, the
Notation of Guarantee for such series executed by each Guarantor with respect to such series) to
the Trustee for authentication, and the Trustee shall authenticate and deliver such Securities for
original issue upon a Company Order for the authentication and delivery of such Securities or
pursuant to such procedures acceptable to the Trustee as may be specified from time to time by
Company Order. Such order shall specify the amount of the Securities to be authenticated, the date
on which the original issue of Securities is to be authenticated, the name or names of the initial
Holder or Holders and any other terms of the Securities of such series not otherwise determined. If
provided for in such procedures, such Company Order may authorize (1) authentication and delivery
of Securities of such series for original issue from time to time, with certain terms (including,
without limitation, the Maturity dates or dates, original issue date or dates and interest rate or
rates) that differ from Security to Security and (2) may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly authorized agent, which
instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by
Section 2.1
, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in addition to the Company Order referred to
above and the other documents required by
Section 13.4
), and (subject to
Section
7.1
) shall be fully protected in relying upon:
(a) an Officers Certificate of the Company setting forth the Board Resolution and, if
applicable, an appropriate record of any action taken pursuant thereto, as contemplated by the last
paragraph of
Section 2.1
; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established in conformity with the provisions of this
Indenture;
(ii) the terms of such Securities have been established in conformity with the provisions of
this Indenture; and
(iii) that such Securities and the related Securities Guarantees, if any, when authenticated
and delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company
and the Guarantors, respectively, enforceable against the Company and the Guarantors, respectively,
in accordance with their respective terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or
other similar laws in effect from time to time
affecting the rights of creditors generally, and the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law).
If all the Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Officers Certificate and Opinion of Counsel at the time of issuance of
each such
18
Security, but such Officers Certificate and Opinion of Counsel shall be delivered at or
before the time of issuance of the first Security of the series to be issued.
The Trustee shall not be required to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture would affect the Trustees own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. Unless limited by the terms of such appointment, any such 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, any Guarantor or an Affiliate of the Company
or any Guarantor.
Each Security shall be dated the date of its authentication.
Section 2.5.
Registrar and Paying Agent
. The Company shall maintain an office or agency for each series
of Securities where Securities of such series may be presented for registration of transfer or for
exchange (the
Registrar
) and an office or agency where Securities of such series may be
presented for payment (the
Paying Agent
). The Company shall cause each of the Registrar
and the Paying Agent to maintain an office or agency in the United States of America. The
Registrar shall keep a register of the Securities and of their transfer and exchange (the
Securities Register
). The Company may have one or more co-registrars and one or more
additional paying agents. The term
Paying Agent
includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or co-registrar 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 each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to
Section 7.7
. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying Agent for the Securities.
Section 2.6.
Paying Agent to Hold Money in Trust
. By no later than 11:00 a.m. (New York City time) on
the date on which any amount or Additional Amounts, if any, in respect of any Security is due and
payable, the Company shall
deposit with the Paying Agent a sum sufficient in immediately available funds to pay such amount or
Additional Amounts, if any, when due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of the
applicable Holders or the Trustee all money held by such Paying Agent for the payment of such
amount and Additional Amounts, if any, on the applicable Securities and shall notify the Trustee in
writing of any default by the Company or any Guarantor in making any such payment. If the Company
or a
19
Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying Agent and
hold it as a separate trust fund. The Company at any time may require a Paying Agent (other than
the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by
such Paying Agent. Upon complying with this
Section 2.6
, the Paying Agent (if other than
the Company or a
Subsidiary) shall have no further liability for the money delivered to the
Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company,
the Trustee shall serve as Paying Agent for the Securities.
Section 2.7.
Holder 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 Holders. If the Trustee is not
the Registrar with respect to a series of Securities, or to the extent otherwise required under the
TIA, the Company shall furnish to the Trustee, in writing at least five Business Days before each
interest payment date with respect to such series of Securities 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 Holders of such series.
Section 2.8.
Transfer and Exchange
.
Except as set forth in
Section 2.16
or as may be provided pursuant to
Section
2.1
, when Securities of any series are presented to the Registrar with the request to register
the transfer of those Securities or to exchange those Securities for an equal principal amount of
Securities of the same series of like tenor and of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its requirements and the
requirements of this Indenture for those transactions are met; provided, however, that the
Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed
or accompanied by a written instruction of transfer in form reasonably satisfactory to the
Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on
which instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the Company shall execute Securities (and,
if applicable, each Guarantor with respect to such series shall execute the Notation of Guarantee
for such series) and the Trustee shall authenticate such Securities at the Registrars written
request and submission of the Securities (other than Global Securities). No service charge shall
be made to a Holder for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than such transfer tax or
similar governmental charge payable on exchanges pursuant to
Section 2.13, 5.7 or 9.5)
.
The Trustee shall authenticate Securities in accordance with the provisions of
Section
2.4
. Notwithstanding any other provisions of this Indenture to the contrary, the
Company shall not be required to register the transfer or exchange of (a) any Security selected for
redemption in whole or in part pursuant to
Article V
, except the unredeemed portion of any
Security being redeemed in part or (b) any Security during the period beginning 15 Business Days
before the mailing of notice of any offer to repurchase Securities of the series required pursuant
to the terms thereof or of redemption of Securities of a series to be redeemed and ending at the
close of business on the date of mailing.
20
Section 2.9.
Mutilated, Destroyed, Lost or Wrongfully Taken Securities
. If a mutilated Security is
surrendered to the Registrar or if the Holder 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 with respect to such series if the requirements of Section 8-405 of the
Uniform Commercial Code are met, such that the Holder (a) satisfies the Company or the Trustee
within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking
and the Registrar does not register a transfer prior to receiving such notification, (b) makes such
request to the Company or 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 (c)
satisfies any other reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the judgment of the Company and
the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and any
co-registrar from any loss which any of them may suffer if a Security is replaced, and, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a protected
purchaser, the Company shall execute and, upon a Company Order, the Trustee shall authenticate and
make available for delivery, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or wrongfully taken Security, a new Security of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or wrongfully taken Security has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new
Security of such series, pay such Security.
Upon the issuance of any new Security under this
Section 2.9
, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Trustee) in
connection therewith.
Every new Security issued pursuant to this Section in lieu of any mutilated, destroyed, lost
or wrongfully taken Security shall constitute an original additional contractual obligation of the
Company, any Guarantor (if applicable) and any other obligor upon the Securities of such series,
whether or not the mutilated, destroyed, lost or wrongfully taken Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly issued hereunder.
The provisions of this
Section 2.9
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 wrongfully taken Securities.
Section 2.10.
Outstanding Securities
. Securities outstanding at any time are all Securities
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this
Section 2.10
as not outstanding. A Security
ceases to be outstanding in the event the Company or a Subsidiary of the Company holds the
Security,
provided
,
however
, that (i) for purposes of determining which are outstanding for consent
or voting purposes hereunder, the provisions of
Section 13.6
shall apply and (ii) in
determining whether the Trustee shall be protected in making a determination whether the Holders of
the requisite principal amount of outstanding Securities are present at a meeting of Holders of
21
Securities for quorum purposes or have consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying
upon any such quorum, consent or vote, only Securities which a Trust Officer of the Trustee
actually knows to be held by the Company or an Affiliate of the Company shall not be considered
outstanding.
If a Security is replaced pursuant to
Section 2.9
, 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 segregates and holds in trust, in accordance with this Indenture, on a
Redemption Date or maturity date money sufficient to pay all amounts and Additional Amounts, if
any, payable on that date with respect to the Securities (or portions thereof) to be redeemed or
maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the
Holders on that date pursuant to the terms of this Indenture, then on and after that date such
Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
Section 2.11.
Cancellation
. The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else
shall cancel all Securities surrendered for registration of transfer, exchange, payment or
cancellation and destroy such Securities in accordance with its internal policies, including
delivery of a certificate (a
Certificate of Destruction
) describing such Securities
disposed (subject to the record retention requirements of the Exchange Act). The Company may not
issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation
for any reason other than in connection with a transfer or exchange.
Section 2.12.
Payment of Interest; Defaulted Interest
. Unless otherwise provided as contemplated by
Section 2.1
with respect to the Securities of any series, interest and Additional Amounts,
if any, on any Security of such series which is payable, and is punctually paid or duly provided
for, on any interest payment date shall be paid to the Person in whose name such Security (or one
or more predecessor Securities) is registered at the
close of business on the regular record date for such interest at the office or agency of the
Company maintained for such purpose pursuant to
Section 2.8
.
Unless otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, any interest and Additional Amounts, if any, on any Security of such
series which is payable, but is not paid when the same becomes due and payable and such nonpayment
continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular
record date, and such defaulted interest and (to the extent lawful) interest on such defaulted
interest at the rate provided for in the Securities therefor (such defaulted interest and interest
thereon herein collectively called
Defaulted Interest
) shall be paid by the Company, at
its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective predecessor Securities) are registered at
the close of business on a Special Record Date (as defined below) for the
22
payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 30 days after such notice) of the proposed payment (the
Special Interest Payment Date
), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a record date (the
Special Record
Date
) for the payment of such Defaulted Interest, which date shall be not more than 15
days and not less than 10 days prior to the Special Interest Payment Date and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Interest Payment Date therefor to be given
in the manner provided for in
Section 13.2
, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date and Special Interest Payment Date therefor having been so given, such
Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in
whose names the Securities (or their respective predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be payable pursuant to
the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the Securities
may be listed, and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this
Section 2.12
, each Security delivered
under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest and Additional Amounts, if any, each as accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 2.13.
Temporary Securities
. Until definitive Securities of any series are ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Securities of such series.
Temporary Securities shall be substantially in the form of definitive Securities, but may have
variations that the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive Securities.
Section 2.14.
Persons Deemed Owners
. The Company, any Guarantors, the Trustee, any Agent and any
authenticating agent may treat the Person in whose name any Security is registered as the owner of
that Security for the purpose of receiving payments of principal of, premium (if any) or interest
on, or any Additional Amounts with respect to, that Security and for
23
all other purposes. None of
the Company, the Trustee, any Agent or any authenticating agent shall be affected by any notice to
the contrary.
Section 2.15.
Computation of Interest
. Except as otherwise provided as contemplated by
Section
2.1
with respect to the Securities of any series, interest on the Securities shall be computed
on the basis of a 360-day year of twelve 30-day months.
Section 2.16.
Global Securities; Book-Entry Provisions
. If Securities of a series are issuable in global
form as a Global Security, as contemplated by
Section 2.1
, then, notwithstanding
clause
(11)
of
Section 2.1
and the provisions of
Section 2.2
, any such Global Security
shall represent those of the outstanding Securities of that series as shall be specified therein
and may provide that it shall represent the aggregate amount of outstanding Securities of that
series from time to time endorsed thereon and that the aggregate amount of outstanding Securities
of that series represented thereby may from time to time be reduced or increased, as appropriate,
to reflect exchanges, transfers or redemptions. Any endorsement of a Global Security to reflect
the amount, or any increase or decrease in the amount, of outstanding Securities of that series
represented thereby shall be made by the Trustee (i) in such manner and upon instructions given by
such Person or Persons as shall be specified in that Security or in a Company Order to be delivered
to the Trustee pursuant to
Section 2.4
or (ii) otherwise in accordance with written
instructions or such other written form of instructions as is customary for the Depositary for that
Security, from that Depositary or its nominee on behalf of any Person having a beneficial interest
in that Global Security. Subject to the provisions of
Section 2.4
and, if applicable,
Section 2.13
, the Trustee shall deliver and redeliver any Security in permanent global form
in the manner and upon instructions given by the Person or Persons specified in that Security or in
the applicable Company Order. With respect to the Securities of any series that are
represented by a Global Security, the Company and any Guarantors authorize the execution and
delivery by the Trustee of a letter of representations or other similar agreement or instrument in
the form customarily provided for by the Depositary appointed with respect to that Global Security.
Any Global Security may be deposited with the Depositary or its nominee, or may remain in the
custody of the Trustee or the Security Custodian therefor pursuant to a FAST Balance Certificate
Agreement or similar agreement between the Trustee and the Depositary. If a Company Order has
been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement
or delivery or redelivery of a Security in global form shall be in writing but need not comply with
Section 13.5
and need not be accompanied by an Opinion of Counsel.
24
Members of, or participants in, the Depositary (
Agent Members
) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by the Depositary, or
the Trustee or the Security Custodian as its custodian, or under that Global Security, and the
Depositary may be treated by the Company, any Guarantor, the Trustee or the Security Custodian and
any agent of the Company, any Guarantor, the Trustee or the Security Custodian as the absolute
owner of that Global Security for all purposes whatsoever. Notwithstanding the foregoing, (i) the
registered holder of a Global Security of any series may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through Agent Members, to take
any action that a Holder of Securities of that series is entitled to take under this Indenture or
the Securities of that series and (ii) nothing herein shall prevent the Company, any Guarantor, the
Trustee or the Security Custodian or any agent of the Company, any Guarantor, the Trustee, or the
Security Custodian from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a beneficial owner of any
Security.
Notwithstanding
Section 2.8
, and except as otherwise provided pursuant to
Section
2.1
, transfers of a Global Security shall be limited to transfers of that Global Security in
whole, but not in part, to the Depositary, its successors or their respective nominees. Interests
of beneficial owners in a Global Security may be transferred in accordance with the rules and
procedures of the Depositary. Securities of any series shall be transferred to all beneficial
owners of a Global Security of that series in exchange for their beneficial interests in that
Global Security if, and only if, either (1) the Depositary notifies the Company that it is
unwilling or unable to continue as depositary for such Global Security or the Depositary ceases to
be a clearing agency registered under the Exchange Act, at a time when the Depositary is required
to be so registered in order to act as depositary, and, in either case, a successor depositary is
not appointed by the Company within 90 days of such notice, (2) the Company, at its option,
notifies the Trustee in writing that it elects to cause the issuance of definitive Securities or
(3) a Default or Event of Default has occurred and is continuing with respect to the Securities.
In connection with any transfer of a portion of the beneficial interests in a Global Security
to beneficial owners pursuant to this
Section 2.16
, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of the Global Security in an
amount equal to the principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute and, if applicable, each Guarantor with respect to such
series shall execute the Notation of Guarantee relating to such Global Security, if any, and
the Trustee on receipt of a Company Order for the authentication and delivery of Securities
shall authenticate and deliver, one or more Securities of the same series of like tenor and amount.
In connection with the transfer of all the beneficial interests in a Global Security of any
series to beneficial owners pursuant to this
Section 2.16
, the Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the
Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in
exchange for its beneficial interest in the Global Security, an equal aggregate principal amount of
Securities of that series of authorized denominations.
25
Neither the Company, any Guarantor nor the Trustee will have any responsibility or liability
for any aspect of the records relating to, or payments made on account of, Securities by the
Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to
those Securities. Neither the Company, any Guarantor or the Trustee shall be liable for any delay
by the related Global Security Holder or the Depositary in identifying the beneficial owners, and
each such Person may conclusively rely on, and shall be protected in relying on, instructions from
that Global Security Holder or the Depositary for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the Securities to be issued).
The provisions of the last sentence of the third paragraph of
Section 2.4
shall apply
to any Global Security if that Global Security was never issued and sold by the Company and the
Company or a Guarantor delivers to the Trustee the Global Security together with written
instructions (which need not comply with
Section 13.5
and need not be accompanied by an
Opinion of Counsel) with regard to the cancellation or reduction in the principal amount of
Securities represented thereby, together with the written statement contemplated by the last
sentence of the third paragraph of
Section 2.4
.
Notwithstanding the provisions of
Sections 2.3 and 2.12
, unless otherwise specified as
contemplated by
Section 2.1
with respect to Securities of any series, payment of principal
of and premium (if any) and interest on and any Additional Amounts with respect to any Global
Security shall be made to the Person or Persons specified therein.
Section 2.17.
CUSIP Numbers, Etc
. The Company in issuing the Securities of any series may use CUSIP
numbers (if then generally in use) and, if so, the Trustee shall use CUSIP, ISIN and Common Code
numbers in notices of redemption as a convenience to Holders of Securities of such series;
provided
,
however
, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities of such series or as contained in
any notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Securities of such series, 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 change in the CUSIP, ISIN and Common Code numbers.
Section 2.18.
Original Issue Discount and Foreign-Currency Denominated Securities
. In determining
whether the Holders of the required principal amount of outstanding Securities have concurred in
any direction, amendment, supplement, waiver or consent, unless otherwise provided as contemplated
by
Section 2.1
with respect to the Securities of any series, (a) the principal amount of an
Original Issue Discount Security of such series shall be the principal amount thereof that would be
due and payable as of the date of that determination upon acceleration of the Maturity thereof
pursuant to
Section 6.2
, and (b) the principal amount of a Security of such series
denominated in a foreign currency shall be the Dollar equivalent, as determined by the Company by
reference to the noon buying rate in The City of New York for cable transfers for that currency, as
that rate is certified for customs purposes by the Federal Reserve Bank of New York (the
Exchange Rate
) on the date of original issuance of that Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent, as determined by
the Company by reference to the Exchange Rate on the date
26
of original issuance of that Security, of
the amount determined as provided in (a) above), of that Security.
ARTICLE III
Covenants
Section 3.1.
Payment of Securities
. The Company shall promptly pay the principal of, premium, if any,
on, and interest and Additional Amounts, if any, on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal, premium, if any, interest and
Additional Amounts, if any, shall be considered paid on the date due if on such date the Trustee or
the Paying Agent holds in accordance with this Indenture immediately available funds sufficient to
pay all principal, premium and interest and Additional Amounts, if any, then due and the Trustee or
Paying Agent, as the case may be, is not prohibited from paying money to the Holders on that date
pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate specified therefor in the
Securities, and it shall pay interest on overdue installments of interest at the same rate to the
extent lawful.
Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the
extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by
the United States of America from principal or interest payments hereunder.
Section 3.2.
Reports.
So long as the Securities of any series are
outstanding the Company shall:
(1) furnish to the Trustee, within 15 days after the Company files the same
with the SEC, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
from time to time by rules and regulations prescribe) which the
Company files with the SEC pursuant to Section 13 or Section 15(d) of the
Exchange Act; and
(2)
comply with the other provisions of TIA § 314(a).
Section 3.3.
Maintenance of Office or Agency
. The Company will maintain in the United States of America
an office or agency for any series of Securities where such Securities may be presented or
surrendered for payment, where, if applicable, the Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The principal corporate
trust office of the Trustee at the address of the Trustee specified
in Section 13.2 hereof (the
Corporate Trust Office
) shall be such office or agency
of the Company, unless the Company shall designate and maintain some other office or agency for one
or more of such purposes. The Company will give prompt written
27
notice to the Trustee of any change
in the location of any such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind any such designation;
provided
,
however
, that no such designation
or rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in the United States of America for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and any change in the location of any
such other office or agency.
Section 3.4.
Corporate Existence
. Subject to
Article IV
, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its corporate existence.
This
Section 3.4
shall not prohibit or restrict the Company from converting into a
different form of legal entity.
Section 3.5.
Compliance Certificate
. The Company shall deliver to the Trustee within 120 days after the
end of each fiscal year of the Company an Officers Certificate stating that in the course of the
performance by the signers of their duties as Officers of the Company they would normally have
knowledge of any Default or Event of Default and whether or not the signers know of any Default or
Event of Default that occurred during such period. If they do, the certificate shall describe the
Default or Event of
Default, its status and what action the Company is taking or proposes to take with respect thereto.
The Company also shall comply with TIA § 314(a)(4).
Section 3.6.
Statement by Officers as to Default
. So long as Securities of any series are outstanding,
the Company shall deliver to the Trustee, as soon as possible and in any event within 5 Business
Days after the Company becomes aware of the occurrence of any Event of Default or Default with
respect to that series an Officers Certificate setting forth the details of such Event of Default
or Default and the action which the Company is taking or proposes to take in respect thereof.
Section 3.7.
Additional Amounts
. If the Securities of a series expressly provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of that series Additional
Amounts as expressly provided therein. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or any premium or interest on, or in respect of, any
Security of any series or the net proceeds received from the sale or exchange of any Security of
any series, that mention shall be deemed to include mention of the payment of Additional Amounts
provided for in this
Section 3.7
to the extent that, in that context, Additional Amounts
are, were or would be payable in respect thereof pursuant to the provisions of this
Section
3.7
, and express mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those provisions hereof where that
express mention is not made.
28
Unless otherwise provided pursuant to
Section 2.1
with respect to Securities of any
series, if the Securities of a series provide for the payment of Additional Amounts, at least ten
days prior to the first Interest Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to Maturity, the first day on which a
payment of principal and any premium is made), and at least ten days prior to each date of payment
of principal and any premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers Certificate, the Company shall furnish the Trustee and
the Companys principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers
Certificate instructing the Trustee and such Paying Agent or Paying Agents whether that payment of
principal of and any premium or interest on the Securities of that series shall be made to Holders
of Securities of that series who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of that series. If any
such withholding shall be required, then that Officers Certificate shall specify by country the
amount, if any, required to be withheld on those payments to those Holders of Securities, and the
Company will pay to that Paying Agent the Additional Amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for and to hold them harmless against any
loss, liability or expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in reliance on any
Officers Certificate furnished pursuant to this
Section 3.7
.
ARTICLE IV
Successors
Section 4.1.
Merger, Consolidation or Sale of Assets
. The Company shall not consolidate or combine with
or merge with or into or, directly or indirectly, sell, assign, convey, lease, transfer or
otherwise dispose of all or substantially all of its assets to any Person or Persons in a single
transaction or through a series of transactions, unless:
(1) the Company shall be the successor or continuing Person or, if the Company
is not the successor or continuing Person, the resulting, surviving or transferee
Person (the
Surviving Entity
) is a company organized and existing under
the laws of the United States, any State thereof or the District of Columbia that
expressly assumes all of the Companys obligations under the Securities and this
Indenture pursuant to a supplement hereto executed and delivered to the Trustee;
(2) immediately after giving effect to such transaction or series of
transactions, no Event of Default has occurred and is continuing; and
(3) the Company or the Surviving Entity shall have delivered to the Trustee an
Officers Certificate and Opinion of Counsel stating that the transaction or series
of transactions and any supplement hereto complies with the terms of this Indenture.
If any consolidation or merger or any sale, assignment, conveyance, lease, transfer or other
disposition of all or substantially all of the Companys assets occurs in accordance with the
29
terms
hereof, the Surviving Entity 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 Surviving Entity had
been named as the Company. The Company shall (except in the case of a lease) be discharged from all
obligations and covenants under this Indenture and any Securities
issued hereunder, and may be liquidated and dissolved. Notwithstanding
the foregoing, the Company may merge or consolidate into or with any Subsidiary.
ARTICLE V
Redemption of Securities
Section 5.1.
Applicability of Article
. Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be made in accordance
with such provision and (except as otherwise provided as contemplated by
Section 2.1
with
respect to the Securities of any series) this
Article V
.
Section 5.2.
Election to Redeem; Notice to Trustee
. In case of any redemption of any series of Securities at the election of the Company, the
Company shall, upon not later than the earlier of the date that is 45 days prior to the Redemption
Date fixed by the Company or the date on which notice is given to the Holders (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities of such series to be redeemed
pursuant to
Section 5.3
.
Section 5.3.
Selection by Trustee of Securities to Be Redeemed
. If fewer than all of the Securities of
any series are to be redeemed at any time, the Trustee will, subject to applicable law, select
Securities of any series for redemption as follows:
(1) if the Securities are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange on
which the Securities are listed; or
(2) if the Securities are not listed on any national securities exchange, on a
pro rata basis.
Section 5.4.
Notice of Redemption
. Notice of redemption shall be given in the manner provided for in
Section 13.2
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed, except that redemption notices may be mailed more than 60 days
prior to a Redemption Date if such notice is issued in connection with a defeasance of the
Securities or a satisfaction and discharge of this Indenture. Notice of any redemption may, at the Companys discretion, be subject to one or
more conditions precedent. The Trustee shall give notice of redemption in the Companys name and at the Companys
expense;
provided
,
however
, that the Company shall deliver to the Trustee, at least 45 days prior
to the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee), an Officers
Certificate requesting that the Trustee give such
30
notice at the Companys expense and setting forth
the information to be stated in such notice as provided in the following items.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued interest and Additional
Amounts, if any, to the Redemption Date payable as provided in
Section 5.6
;
(3) if less than all outstanding Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed, as
well as the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities to be outstanding after such partial
redemption;
(4) in case any Securities are is to be redeemed in part only, the notice which
relates to such Securities shall state that on and after the Redemption Date, upon
surrender of such Securities, the Holder will receive, without charge, a new
Security or Securities of authorized denominations for the principal amount thereof
remaining unredeemed;
(5) that on the Redemption Date the redemption price (and accrued interest, if
any, to the Redemption Date payable as provided in
Section 5.6
) will become
due and payable upon each such Security, or the portion thereof, to be redeemed,
and, unless the Company defaults in making the redemption payment, that interest and
Additional Amounts, if any, on Securities (or the portions thereof) called for
redemption will cease to accrue on and after said date;
(6) the place or places where such Securities are to be surrendered for payment
of the Redemption Price and accrued interest, if any;
(7) the name and address of the Paying Agent;
(8) that Securities called for redemption (other than a Global Note) must be
surrendered to the Paying Agent to collect the redemption price;
(9) the CUSIP, ISIN or Common Code number, and that no representation is made
as to the accuracy or correctness of the CUSIP, ISIN or Common Code number, if any,
listed in such notice or printed on the Securities; and
(10) the section of this Indenture and the paragraph of the Securities pursuant
to which the Securities are to be redeemed.
Any redemption and notice thereof pursuant to this Indenture may, in the Companys discretion, be
subject to the satisfaction of one or more conditions.
31
Section 5.5.
Deposit of Redemption Price
. Not later than 11:00 a.m. New York time on the Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 2.6
) an
amount of money sufficient to pay the redemption price of, and accrued interest and Additional
Amounts, if any, on, all the Securities which are to be redeemed on that date.
Section 5.6.
Securities Payable on Redemption Date
. Notice of redemption having been given as
aforesaid, unless the notice of redemption is subject to one or more conditions precedent which
have not been satisfied, the Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the redemption price therein specified (together with accrued and unpaid interest
and Additional Amounts, if any, to the Redemption Date), and from and after such date (unless the
Company shall default in the payment of the redemption price and accrued interest and Additional
Amounts, if any) such
Securities shall cease to bear interest and Additional Amounts, if any. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
at the redemption price, together with accrued and unpaid interest and Additional Amounts, if any,
to the Redemption Date (subject to the rights of Holders of record on the relevant record date to
receive interest and Additional Amounts, if any, due on an interest payment date that is on or
prior to the Redemption Date).
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest and Additional
Amounts, if any, from the Redemption Date at the rate borne by the Securities.
Section 5.7.
Securities Redeemed in Part
. Any Security which is to be redeemed only in part (pursuant
to the provisions of this
Article V
) shall be surrendered at the office or agency of the
Company maintained for such purpose pursuant to
Section 2.5
(with, if the Company or the
Trustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or such Holders attorney duly
authorized in writing), and the Company shall execute and, if applicable, each Guarantor with
respect to such series shall execute the Notation of Guarantee relating to such Security, if any,
and the Trustee shall authenticate and make available for delivery to the Holder of such Security
at the expense of the Company, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered,
provided
that each such new
Security will be in a principal amount of $1,000 or integral multiple thereof. No Securities of
$1,000 or less may be redeemed in part.
32
ARTICLE VI
Defaults and Remedies
Section 6.1.
Events of Default
. Unless either inapplicable to a particular series or specifically
deleted or modified in or pursuant to the supplemental indenture or Board Resolution establishing
such series of Securities or in the form of Security for such series, an
Event of
Default
, wherever used herein with respect to Securities of any series, occurs if:
(1) the Company defaults in the payment of any installment of interest on or
Additional Amounts, if any, with respect to any Security of that series under this
Indenture when due, continued for 30 days, whether or not such
payment is prohibited by the subordination provisions of this
Indenture;
(2) the Company defaults in the payment when due (at Stated Maturity, upon
redemption or otherwise) of the principal of, or premium, if any, on the Securities
of that series, whether or not such
payment is prohibited by the subordination provisions of this
Indenture;
(3) the Company fails to comply with the provisions of
Section 4.1
hereof;
(4) the Company fails for 90 days after notice to the Company by the Trustee or
the Holders of at least 25% in aggregate principal amount of the Securities of that
series then outstanding to comply with any of the other
covenants or agreements in this Indenture;
(5) the Company fails to deposit any sinking fund payment, when due, in respect of any debt
security of that series;
(6) (a) except as permitted by this Indenture, any Security Guarantee of that
series shall be held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect or (b) any Guarantor of that
series, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under its Security Guarantee (except pursuant to the release or
termination of such Security Guarantee in accordance with this Indenture); and
(7) (a) the Company or any Significant Subsidiary or a group of Subsidiaries
that, taken together (as of the latest available consolidated financial statements
of the Company), would constitute a Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
|
(i)
|
|
commences a voluntary case or proceeding;
|
|
|
(ii)
|
|
consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding;
|
|
|
(iii)
|
|
consents to the appointment of a Custodian of
it or for any substantial part of its property;
|
|
|
(iv)
|
|
makes a general assignment for the benefit of
its creditors; or
|
33
|
(v)
|
|
consents to or acquiesces in the institution of
a bankruptcy or an insolvency proceeding against it;
|
or takes any comparable action under any foreign laws relating to insolvency; or
|
(b)
|
|
a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
|
|
(i)
|
|
is for relief against the Company
or any Significant Subsidiary;
|
|
|
(ii)
|
|
appoints a Custodian of the
Company or any Significant Subsidiary; or
|
|
|
(iii)
|
|
orders the winding up or
liquidation of the Company or any Significant Subsidiary;
|
or any similar relief is granted under any foreign laws and the order, decree or
relief remains unstayed and in effect for 90 days.
Section 6.2.
Acceleration
. Except as otherwise provided as contemplated by
Section 2.1
with
respect to the Securities of such series, if any Event of Default with respect to any Securities of
such series at the time outstanding (other than those of the type
described in
clause (7)
of
Section 6.1
) occurs and is continuing, the Trustee may, and at the direction of the
Holders of at least 25% in aggregate principal amount of outstanding Securities of such series
shall, declare the principal of all the Securities of that series, together with all accrued and
unpaid interest and Additional Amounts, if any, and premium, if any, to be due and payable
immediately by notice in writing to the Company and the Trustee specifying the respective Event of
Default and that such notice is a notice of acceleration, and the same shall become immediately due
and payable.
Except as otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, in the case of an Event of Default with respect to such series specified
in
clause (7)
of
Section 6.1
hereof, all outstanding Securities of such series
shall become due and payable immediately without further action or notice by the Trustee or the
Holders. Holders may not enforce this Indenture or the Securities except as provided in this
Indenture.
Except as otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, at any time after a declaration of acceleration with respect to the
Securities of such series, the Holders of a majority in principal amount of the Securities of that
series then outstanding (by notice to the Trustee) may, on behalf of the Holders of all the
Securities of that series, rescind and cancel such declaration and its consequences if:
(1) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction;
(2) all existing Defaults and Events of Default with respect to Securities of
that series have been cured or waived except nonpayment of
34
principal of or interest
on the Securities of that series that has become due solely by reason of such
declaration of acceleration;
(3) to the extent the payment of such interest is lawful, interest (at the same
rate specified in the Securities of such series) on overdue installments of interest
and Additional Amounts, if any, and overdue payments of principal which has become
due otherwise than by such declaration of acceleration has been paid;
(4) the Company has paid the Trustee its reasonable compensation and reimbursed
the Trustee for its reasonable expenses, disbursements and advances; and
(5) in the event of the cure or waiver of an Event of Default of the type
described in
clause (7)
of
Section 6.1
, the Trustee has received an
Officers Certificate and Opinion of Counsel that such Event of Default has been
cured or waived.
Section 6.3.
Other Remedies
. If an Event of Default with respect to any series occurs and
is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of (or premium, if any) or interest
or Additional Amounts, if any, on the Securities of such series or to enforce the performance of
any provision of the Securities of such series or this Indenture with respect to such series.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative.
Section 6.4.
Waiver of Past Defaults
. Except as otherwise provided as contemplated by
Section
2.1
with respect to the Securities of any series, the Holders of a majority in principal amount
of the then outstanding Securities of such series by notice to the Trustee may, on behalf of the
Holders of all the Securities of such series, (a) waive, by their consent (including, without
limitation consents obtained in connection with a purchase of, or tender offer or exchange offer
for, Securities of such series), an existing Default or Event of Default, with respect to such
series and its consequences or compliance with any provisions except (i) a Default or Event of
Default in the payment of the principal of, or premium, if any, or interest or Additional Amounts,
if any, on a Security of such series or (ii) a Default or Event of Default in respect of a
provision that under
Section 9.2
cannot be amended without the consent of each Holder
affected and (b) rescind any such acceleration with respect to the Securities of such series and
its consequences if rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. When a Default or Event of Default is waived, it is deemed cured, but no
such waiver shall extend to any subsequent or other Default or Event of Default or impair any
consequent right.
Section 6.5.
Control by Majority
. With respect to Securities of any series, the Holders of a majority
in principal amount of the outstanding Securities of such series may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
35
exercising any
trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or, subject to
Sections 7.1
and
7.2
, that
the Trustee determines is unduly prejudicial to the rights of the other Holders or would involve
the Trustee in personal liability. Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.
Section 6.6.
Limitation on Suits
. Subject to
Section 6.7
, a Holder of a Security of any series
may not pursue any remedy with respect to this Indenture or the Securities of such series or any
related Securities Guarantees unless:
(1) such Holder has previously given to the Trustee written notice stating that
an Event of Default is continuing with respect to such series;
(2) Holders of at least 25% in aggregate principal amount of the outstanding
Securities of such series have requested in writing that the Trustee pursue the
remedy;
(3) such Holders have offered to the Trustee reasonable security or indemnity
against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after receipt
of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the outstanding Securities
of such series have not given the Trustee a direction that, in the opinion of the
Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
Section 6.7.
Rights of Holders to Receive Payment
. Notwithstanding any other provision of this
Indenture (including, without limitation,
Section 6.6
), the right of any Holder to receive
payment of principal of, premium (if any) or interest or Additional Amounts, if any, when due on
the Securities held by such Holder, on or after the respective due dates expressed in the
Securities, or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
Section 6.8.
Collection Suit by Trustee
. If an Event of Default specified in
clauses (1) or (2)
of
Section 6.1
occurs and is continuing with respect to Securities of any series, the
Trustee may recover judgment in its own name and as trustee of an express trust against the Company
for the whole amount then due and owing (together with interest on any unpaid interest to the
extent lawful) with respect to such series and the amounts provided for in
Section 7.7
.
Section 6.9.
Trustee May File Proofs of Claim
. The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims of the Trustee and
the Holders allowed in any judicial proceedings relative to the Company, its Subsidiaries or its or
their respective creditors or properties and, unless prohibited
36
by law or applicable regulations,
may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make 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 its counsel,
and any other amounts due the Trustee under
Section 7.7
. To the extent that the payment of
any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under
Section 7.7
hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on,
and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or the
rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
Section 6.10.
Priorities
. If the Trustee collects any money or property pursuant to this
Article
VI
, it shall pay out the money or property in the following order:
FIRST
: to the Trustee for amounts due under
Section 7.7
;
SECOND
: to Holders for amounts due and unpaid on the Securities in respect of which or for
the benefit of which such money has been collected, for principal, premium, if any, and interest
and Additional Amounts, if any, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities for principal, premium, if any, and interest and
Additional Amounts, if any, respectively; and
THIRD
: to the Company or any Guarantors or to such other party as a court of competent
jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.10
. At least 15 days before such record date, the Company shall mail to each
Holder and the Trustee a notice that states the record date, the payment date and amount to be
paid.
Section 6.11.
Undertaking for Costs
. 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 or omitted by it as Trustee, a
court in its discretion may require the filing by any party litigant in the suit of an undertaking
to pay the costs of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant. This
Section
6.11
does not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder
pursuant to
Section 6.7
or a suit by Holders of more than 10% in outstanding principal
amount of the Securities of any series.
37
ARTICLE VII
Trustee
Section 7.1.
Duties of Trustee
. (a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent Person would exercise or use under the circumstances in
the conduct of such Persons own affairs; provided that if an Event of Default occurs and is
continuing, the Trustee will be under no obligation to exercise the rights or powers under this
Indenture at the request or direction of any of the Holders unless such Holders have offered to the
Trustee indemnity or security against loss, liability or expense satisfactory to the Trustee in its
sole discretion.
(b) Except during the continuance of an Event of Default with respect to the Securities
of any series:
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates, opinions or orders furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine such certificates and
opinions to determine whether or not they conform on their face to the requirements
of this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.1
;
(2) 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
(3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to
Section 6.5
.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b) and (c) of this
Section 7.1
.
38
(e) The Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.
(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 financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers.
(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 7.1
and to the provisions of the TIA.
(i) Unless otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an Officer of the
Company.
(j) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders unless such
Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to
it against the costs, expenses (including reasonable attorneys fees and expenses) and
liabilities that might be incurred by it in compliance with such request or direction.
Section 7.2.
Rights of Trustee
. Subject to
Section 7.1
:
(a) The Trustee may conclusively rely on any document (whether in its original or
facsimile form) reasonably 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 and/or an Opinion of Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on an Officers
Certificate and/or Opinion of
Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) The Trustee may consult with counsel of its selection, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
39
Securities shall be
full and complete authorization and protection from liability in respect of 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 is not required to make any inquiry or investigation into facts or
matters stated in any document but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit and, if the Trustee
determines to make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company.
(g) The Trustee is not required to take notice or shall not be deemed to have notice of
any Default or Event of Default hereunder with respect to any series of Securities, unless a
Trust Officer of the Trustee has actual knowledge thereof or has received notice in writing
of such Default or Event of Default from the Company or the Holders of at least 25% in
aggregate principal amount of the Securities of such series then outstanding, and in the
absence of any such notice, the Trustee may conclusively assume that no such Default or
Event of Default exists.
(h) The Trustee is not required to give any bond or surety with respect to the
performance of its duties or the exercise of its powers under this Indenture.
(i) In the event the Trustee receives inconsistent or conflicting requests and
indemnity from two or more groups of Holders of Securities, each representing less than the
aggregate principal amount of Securities outstanding required to take any action thereunder,
the Trustee, in its sole discretion may determine what action, if any, shall be taken.
(j) The Trustees immunities and protections from liability and its right to
indemnification in connection with the performance of its duties under this Indenture shall
extend to the Trustees officers, directors, agents, attorneys and employees. Such
immunities and protections and right to indemnification, together with the Trustees right
to compensation, shall survive the Trustees resignation or removal, the discharge of this
Indenture and final payments of the Securities.
(k) The permissive right of the Trustee to take actions permitted by this Indenture
shall not be construed as an obligation or duty to do so.
(l) The Trustee shall have no duty to inquire as to the performance of the Companys covenants
herein.
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 its Affiliates
with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the Trustee must comply
with
Sections 7.10
and
7.11
.
Section 7.4.
Trustees Disclaimer
. The Trustee shall not be responsible for 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 of the Company
in this Indenture or in any document issued in
40
connection with the sale of the Securities or in the
Securities other than the Trustees certificate of authentication.
Section 7.5.
Notice of Defaults
. If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee
shall mail to each Holder of a Security of such series notice of the Default or Event of Default
within 90 days after it occurs, unless the Default was already
cured or waived. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest or Additional Amounts, if any, on any Security of any
series, the Trustee may withhold the notice if and so long as a committee of its trust officers in
good faith determines that withholding the notice is in the interests of Holders of such series.
Section 7.6.
Reports by Trustee to Holders
. As promptly as practicable after each May 15 beginning with
the May 15 following the date of this Indenture and for so long as the Securities of any series
remain outstanding, the Trustee shall mail to each Holder of Securities of such series a brief
report dated as of such reporting date that complies with TIA § 313(a). The Trustee also shall
comply with TIA § 313(b). The Trustee shall also transmit by mail all reports required by TIA §
313(c).
A copy of each report at the time of its mailing to Holders of Securities of any series shall
be filed with the SEC and each stock exchange (if any) on which the Securities of such series are
listed. The Company agrees to notify promptly the Trustee whenever the Securities of any series
become 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
reasonable compensation for its acceptance of this Indenture and services hereunder 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, costs of preparing and reviewing reports, certificates and other
documents, costs of preparation and mailing of notices to Holders, 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 against any and all losses, liabilities,
damages, claims, penalties, fines or expenses
(including reasonable attorneys fees and expenses) (for
purposes of this
Section 7.7
, losses) incurred by it in connection with the administration of this trust and the performance of
its duties hereunder, including the costs and expenses of enforcing this Indenture (including this
Section 7.7
) and of defending itself against any claims (whether asserted by any Holder,
the Company or otherwise), except to the extent such losses may be
attributable to its negligence or bad faith. The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company
of its
obligations hereunder. The Company shall defend the claim and the Trustee shall provide reasonable
cooperation at the Companys expense in the defense. The Trustee may have separate counsel and the
Company shall pay the fees and expenses of such counsel provided that the Company shall not be
required to pay such fees and expenses if it assumes the Trustees defense, and, in the reasonable
judgment of outside counsel to the Trustee, there is no conflict of interest between the Company
and the Trustee in connection with such defense. The Company shall not be under any
41
obligation to
pay for any written settlement without its consent, which consent shall not be unreasonably
delayed, conditioned or withheld. The Company need not reimburse any
expense incurred by the Trustee through the Trustees own
willful misconduct, gross negligence or bad faith.
To secure the Companys payment obligations in this
Section 7.7
, the Trustee shall
have a lien prior to the Securities on all money or property held or collected by the Trustee other
than money or property held in trust to pay principal of, interest and Additional Amounts, if any,
on particular Securities.
The Companys payment obligations pursuant to this
Section 7.7
shall survive the
discharge of this Indenture, the resignation or removal of the Trustee and payment in full of the Securities. When the Trustee incurs expenses after the occurrence of a Default
specified in clause (7) of
Section 6.1
with respect to the Company, the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.8.
Replacement of Trustee
. The Trustee may resign at any time by so notifying the Company.
The Holders of a majority in principal amount of the then outstanding Securities of any series may
remove the Trustee with respect to the Securities of such series by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with
Section 7.10
;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the Holders of a majority in
principal amount of the then outstanding Securities of any series and such Holders of such series
do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the
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 with respect to such series.
If a successor Trustee with respect to Securities of any series does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of at
least 10% in principal amount of the then outstanding Securities of such series may petition, at
the Companys expense, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
If the Trustee with respect to the Securities of a series fails to comply with
Section
7.10
, unless the Trustees duty to resign is stayed as provided in TIA § 310(b), any Holder who
has been a bona fide Holder of a Security of such series for at least six months may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee with respect to such series.
42
In case of the appointment of a successor Trustee with respect to all Securities, each such
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee, to
the Company and to any Guarantors. Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights, power and duties of
the retiring Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. 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
.
In case of the appointment of a successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, any Guarantors, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more (but not all) series shall execute and
deliver an indenture supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights, powers and duties
of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall confirm that all the rights, powers and duties of the retiring
Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee. Nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust, and each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee. Upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee shall have all the rights, powers
and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates. On request of the Company or any successor
Trustee, such retiring Trustee shall transfer to such successor Trustee all property held by such
retiring Trustee as Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates. Such retiring Trustees shall, however, have the
right to deduct its unpaid fees and expenses, including attorneys fees.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.8
, the
Companys obligations under
Section 7.7
shall continue for the benefit of the retiring
Trustee.
Section 7.9.
Successor Trustee by Merger
. If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all 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 shall succeed to the trusts created by this Indenture, any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the 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
43
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 or in this Indenture.
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 $100.0 million 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.
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 VIII
Legal Defeasance and Covenant Defeasance
Section 8.1.
Option to Effect Legal Defeasance or Covenant Defeasance
. Unless otherwise designated
pursuant to
Section 2.1(20)
, the Securities of any series shall be subject to defeasance or
covenant defeasance pursuant to
Section 8.2
or
8.3
, in accordance with any
applicable requirements provided pursuant to
Section 2.1
and upon compliance with the
conditions set forth in this
Article VIII
. The Company may, at its option and at any time,
elect to have either
Section 8.2
or
8.3
hereof be applied to all outstanding
Securities of any series so subject to defeasance or covenant defeasance. Any such election shall
be evidenced by a Board Resolution of the Company or in another manner specified as contemplated by
Section 2.1
for such Securities.
Section 8.2.
Legal Defeasance and Discharge
. Upon the Companys exercise under
Section 8.1
hereof of the option applicable to this
Section 8.2
with respect to Securities of any
series, the Company shall, subject to the satisfaction of the conditions set forth in
Section
8.4
hereof, be deemed to have been discharged from its Obligations with respect to all
outstanding Securities of such series on the date the conditions set forth below are satisfied
(hereinafter,
Legal Defeasance
) and each Guarantor, if applicable, shall be released and
relieved from all of its Obligations under its Security Guarantee with
respect to such series. For this purpose, Legal Defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by the outstanding Securities with
respect to such series, which shall thereafter be deemed to be outstanding only for the purposes
of
Section 8.5
hereof and the other Sections of this Indenture referred to in clauses (a)
through (e) below, and to have satisfied all its other obligations under the Securities with
respect to such series and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Securities with respect to such series to receive, solely from the trust
fund described in
Sections 8.4
and
8.5
hereof, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest and Additional
Amounts, if any, on such Securities when such
44
payments are due, (b) the Companys Obligations with
respect to such Securities under
Article II
and
Sections 3.1
hereof, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the Companys and any
Guarantors obligations in connection therewith, (d) the optional redemption provisions, if any,
with respect to such Securities, and (e) this
Article VIII
. If the Company exercises under
Section 8.1
hereof the option applicable to this
Section 8.2
, subject to the
satisfaction of the conditions set forth in
Section 8.4
hereof, payment of the Securities
with respect to such series may not be accelerated because of an Event of Default. Subject to
compliance with this
Article VIII
, the Company may exercise its option under this
Section 8.2
notwithstanding the prior exercise of its option under
Section 8.3
hereof.
Section 8.3.
Covenant Defeasance
. Upon the Companys exercise under
Section 8.1
hereof of the
option applicable to this
Section 8.3
with respect to Securities of any series, the Company
shall, with respect to such series of Securities, subject to the satisfaction of the conditions set
forth in
Section 8.4
hereof, be released from its obligations under the covenants contained
in
Sections 3.2 and 3.3
, with respect to the outstanding Securities of such series on and
after the date the conditions set forth in
Section 8.4
hereof are satisfied (hereinafter,
Covenant Defeasance
) and each Guarantor, if applicable, shall be released from all of its
obligations under its Security Guarantee with respect to such series of Securities, and the
Securities of such series shall thereafter be deemed not outstanding for the purposes of any
direction, waiver, consent or declaration or act of Holders of such series (and the consequences of
any thereof) in connection with such covenants, but shall continue to be deemed outstanding for
all other purposes hereunder (it being understood that such Securities shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Securities of such series, the Company and any Guarantors may omit to
comply with and shall have no liability in respect of any term, condition or limitation set forth
in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein
to any such covenant or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall not constitute a Default or an
Event of Default under
Section 6.1
hereof, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby. If the Company exercises under
Section 8.1
hereof the option applicable to this
Section 8.3
, subject to the
satisfaction of the conditions set forth in
Section 8.4
hereof, payment of the Securities
of such series may not be accelerated because of an Event of Default specified in
clauses (4) (with respect to
Sections 3.2 and 3.3
),
(6) and (7) of such
Section 6.1
.
Section 8.4.
Conditions to Legal or Covenant Defeasance
. The following shall be the conditions to the
application of either
Section 8.2
or
8.3
hereof to the outstanding Securities of
any series.
In order to exercise Legal Defeasance or Covenant Defeasance with respect to the Securities of
any series:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holders of the Securities of such series, cash in U.S. dollars,
non-callable Government Securities, or a combination of cash in U.S. dollars, and
non-callable Government Securities, in amounts as will be sufficient, in the
45
opinion
of a nationally recognized investment bank, appraisal firm or firm of independent
public accountants, to pay the principal of, and interest and Additional Amounts, if
any, and premium, if any, on the outstanding Securities of such series on the stated
date for payment or on the applicable Redemption Date, as the case may be, and the
Company must specify whether the Securities of such series are being defeased to
such stated date for payment or to a particular Redemption Date;
(2) in the case of Legal Defeasance, the Company must deliver to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that: (a) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling; or (b) since the date 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 will confirm that, the Holders of the
outstanding Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and shall be
subject to federal income tax in the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company must deliver to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that Holders
of the outstanding Securities of such series shall not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance and
shall be subject to federal income tax in the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance had not
occurred;
(4) no Default or Event of Default has occurred and be continuing with respect
to the Securities of such series on the date of such deposit (other than a Default
or Event of Default resulting from the borrowing of funds to be applied to such
deposit);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument
(other than this Indenture) to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers Certificate stating
that such deposit was not made by the Company with the intent of preferring the
Holders of Securities of such series over the other creditors of the Company with
the intent of defeating, hindering, delaying or defrauding creditors of the Company
or others; and
46
(7) the Company must deliver to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
Section 8.5.
Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous
Provisions
. Subject to
Section 8.6
hereof, all cash and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee), collectively for purposes of this
Section 8.5
, the
Trustee
) pursuant to
Section 8.4
hereof in respect of the outstanding Securities of such series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such Securities of such
series and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as Paying Agent) as the Trustee may determine, to the Holders of Securities of
such series of all sums due and to become due thereon in respect of principal, premium, if any,
interest and Additional Amounts, if any, but such cash and securities need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or non-callable Government Securities deposited pursuant to
Section 8.4
hereof or the principal and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders of the outstanding
Securities of such series.
Anything in this
Article VIII
to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon the request of the Company any cash or
non-callable Government Securities held by it as provided in
Section 8.4
hereof which, in
the opinion of a nationally recognized independent registered public accounting firm expressed in a
written certification thereof delivered to the Trustee (which may be the certification delivered
under clause (1) of
Section 8.4
hereof), are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.6.
Repayment to Company
. Any cash or non-callable Government Securities deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal
of, premium, if any,
on, or interest or Additional Amounts, if any, on, any Security of any series and remaining
unclaimed for one year after such principal, premium, if any, or interest or Additional Amounts, if
any, has become due and payable shall be paid to the Company on its request (unless an abandoned
property law designates another Person) or (if then held by the Company) shall be discharged from
such trust; and such Holder shall thereafter, as an unsecured creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such
cash and securities, and all liability of the Company as Trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
The New York Times
and
The Wall Street Journal
(national edition), notice that such cash and securities remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such cash and securities then remaining
shall be repaid to the Company.
47
Section 8.7.
Reinstatement
. If the Trustee or Paying Agent is unable to apply any cash or non-callable
Government Securities in accordance with
Section 8.2
,
8.3
or
8.5
hereof, as
the case may be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the Companys obligations
under this Indenture and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to
Section 8.4
hereof until such time as the Trustee or
Paying Agent is permitted to apply all such cash and securities in accordance with
Section
8.2
,
8.3
or
8.5
hereof, as the case may be;
provided
,
however
, that, if the
Company makes any payment of principal of, premium, if any, on, or interest or Additional Amounts,
if any, on, any Security of such series following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such series to receive such payment from the
cash and securities held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
Section 9.1.
Without Consent of Holders
. Except as otherwise provided as contemplated by
Section
2.1
with respect to the Securities of any series, the Company, any Guarantors and the Trustee
may amend or supplement this Indenture, the Securities or the Security Guarantees without notice to
or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(3) to provide for the assumption of the Companys or a Guarantors obligations
to Holders of Securities of any series and Security Guarantees in the case of a
merger or consolidation or sale of all or substantially all of the Companys or such
Guarantors properties or assets, as applicable;
(4) to comply with requirements of the SEC in order to maintain the
qualification of this Indenture under the Trust Indenture Act;
(5) to make any change that would provide any additional rights or benefits to the Holders of
Securities of any series and Security Guarantees or that does not adversely affect the legal rights
under this Indenture of any such Holder;
(6) to add to the covenants of the Company or any Guarantor for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series), or to surrender any
right or power herein conferred upon the Company or any Guarantor;
(7) to add any additional Events of Default with respect to all or any series
of the Securities (and, if any such Event of Default is applicable to less than
all series of Securities, specifying the series to which such Event of Default is
applicable);
(8) to change or eliminate any of the provisions of this Indenture;
provided
that any such change or elimination shall become effective only when
48
there is no
outstanding Security of any series created prior to the execution of such amendment
or supplemental indenture that is adversely affected in any material respect by such
change in or elimination of such provision;
(9) to establish the form or terms of Securities of any series as permitted by
Section 2.1
;
(10) to supplement any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge of any
series of Securities pursuant to
Section 8.1
;
provided
,
however
, that any
such action shall not adversely affect the interest of the Holders of Securities of
such series or any other series of Securities in any material respect;
(11) to add any Guarantor with respect to the Securities of any series by executing a supplemental indenture and/or a Security Guarantee with respect to such series, or release Security Guarantees of any series, in each case pursuant to the terms of this Indenture;
(12) to secure the Securities of any series;
(13) to evidence and provide for the acceptance under this Indenture of a
successor trustee; or
(14) to conform the text of this Indenture or any Securities to the description thereof in any
prospectus or prospectus supplement of the Company with respect to the offer and sale of Securities
of any series, to the extent that such provision is inconsistent with a provision of this Indenture
or the Securities.
After an amendment under this Indenture becomes effective, the Company is required to mail to
the Holders of each Security affected thereby a notice briefly describing such amendment. However,
the failure to give such notice to all the Holders of each Security affected thereof, or any defect
therein, will not impair or affect the validity of the amendment or supplemental indenture under
this
Section 9.1
.
Section 9.2.
With Consent of Holders
. Except as otherwise provided as contemplated by
Section
2.1
with respect to the Securities of any series, except as provided below in this
Section
9.2
, the Company, any Guarantors and the Trustee may amend or supplement this Indenture with
the consent (including consents obtained in connection with a tender offer or exchange offer for
Securities) of the Holders of a majority in principal amount of the then outstanding Securities of
each series affected by such amendment or supplement (acting as
separate classes).
Upon the request of the Company, accompanied by a Board Resolution, and upon the filing with
the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee
of the documents described in
Section 9.5
, the Trustee shall, subject to
Section
9.6
,
49
join with the Company and any Guarantors in the execution of such amendment or
supplemental indenture.
Except as otherwise provided as contemplated by
Section 2.1
with respect to the
Securities of any series, the Holders of a majority in principal amount of the then outstanding
Securities of one or more series or of all series affected by such
waiver (acting as separate classes) may
waive compliance in a particular instance by the Company or any Guarantor with any provision of
this Indenture with respect to Securities of such series (including waivers obtained in connection
with a tender offer or exchange offer for Securities of such series).
However, except as otherwise provided as contemplated by Section 2.1 with respect to the
Securities of any series, without the consent of each Holder affected, an amendment, supplement or
waiver may not (with respect to any Securities held by a non-consenting Holder):
(1) reduce the principal amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Security or
alter the provisions with respect to the redemption or repurchase of the Securities;
(3) reduce the rate of or change the time for payment of interest, including
default interest on any Security;
(4) waive a Default or Event of Default in the payment of principal of, or
interest or premium, or Additional Amounts, if any, on the Securities (except a
rescission of acceleration of the Securities by the Holders of at least a majority
in aggregate principal amount of the then outstanding Securities and a waiver of the
payment default that resulted from such acceleration);
(5) make any Security payable in currency other than that stated in the
Securities;
(6) make any change in the provisions of this Indenture relating to waivers of
past Defaults or the rights of Holders of Securities to receive payments of
principal of, or interest or premium, if any, on the Securities (other than as
permitted in
clause (7)
below);
(7) waive a redemption payment with respect to any Security;
(8) impair the right of a Holder of Securities to institute suit for the enforcement of any
payment on the Securities;
(9) release any Guarantor from any of its
obligations under its Security Guarantee or this Indenture, except in accordance
with the terms of this Indenture;
(10) modify the provisions of this Indenture with respect to the subordination
of any Security in a manner adverse to the Holder thereof; or
50
(11) make any change in the preceding amendment, supplement and waiver
provisions.
It shall not be necessary for the consent of the Holders under this
Section 9.2
to
approve the particular form of any proposed amendment, but it shall be sufficient if such consent
approves the substance of the proposed amendment.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the
Holders of any other series.
A consent to any amendment or waiver under this Indenture by any Holder of the Securities
given in connection with a tender of such Holders Securities will not be rendered invalid by such
tender. After an amendment under this Section becomes effective, the Company shall mail to Holders
of each Security affected thereby a notice briefly describing such amendment. The failure to give
such notice to all Holders of each Security affected thereby, or any defect therein, shall not
impair or affect the validity of an amendment, supplemental indenture or waiver under this
Section 9.2
.
Section 9.3.
Compliance with Trust Indenture Act
. Every amendment or supplement to this Indenture or
the Securities shall comply with the Trust Indenture Act of 1939 as then in effect.
Section 9.4.
Revocation and Effect of Consents and Waivers
. A consent to an amendment or a waiver by a
Holder of a Security shall be in writing and bind the Holder and every subsequent Holder of that
Security or portion of the Security that evidences
the same debt as the consenting Holders Security, even if notation of the consent or waiver is not
made on the Security. However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holders Security or portion of the Security if the Trustee receives the notice
of revocation before the date the amendment or waiver becomes effective. After an amendment or
waiver becomes effective with respect to a series of Securities, it shall bind every Holder of
Securities of such series.
For purposes of this Indenture, the written consent of the Holder of a Global Security shall
be deemed to include any consent delivered by an Agent Member by electronic means in accordance
with the Automated Tender Offer Procedures system or other customary procedures of, and pursuant to
authorization by, DTC.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. The Trustee may, but shall not be
obligated to, fix a record date for the purpose of determining the Holders of Securities of any
series entitled to join in the giving, making or taking of (i) any notice permit to
Section
6.1(4)
or otherwise of any Default, (ii) any declaration of acceleration pursuant to
Section 6.2
, (iii) any request to institute proceedings pursuant to
Section 6.6(2)
,
or (iv) any direction referred to in
Section 6.5
, in each case with respect to such series.
If a record date is so fixed, then
51
notwithstanding the second preceding paragraph, those Persons
who were Holders at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to give such consent or to revoke any consent previously given or to take any
such action, whether or not such Persons continue to be Holders after such record date. No such
consent shall become valid or effective more than 180 days after such record date.
Section 9.5.
Notation on or Exchange of Securities
. If an amendment changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for
the Security shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment.
Section 9.6.
Trustee To Sign Amendments
. The Trustee shall sign any amendment authorized pursuant to
this
Article IX
if the amendment does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to
receive, and (subject to
Sections 7.1 and
7.2
) shall be fully protected in relying
upon an Officers Certificate and an Opinion of Counsel stating
that the execution of such amendment is authorized
or permitted by this Indenture, that such amendment is the legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, subject to customary exceptions, and that such amendment
complies with the provisions hereof (including Section 9.3).
ARTICLE X
Subordination
Section 10.1.
Securities and Any Guarantees Subordinated to Senior Debt
. The Company, any Guarantors and
each Holder of a Security of a series, by his or her acceptance thereof, agree that (a) the payment
of the principal of, premium (if any) and interest on and any Additional Amounts with respect to
each and all the Securities of such series and any related Guarantees and (b) any other payment in
respect of the Securities of such series and any related Guarantees, including on account of the
acquisition or redemption of Securities of such series by the Company or any Guarantors, as the
case may be, is subordinated, to the extent and in the manner provided in this
Article X
,
to the prior payment in full of all Senior Debt of the Company, whether outstanding at the date of
this Indenture or thereafter created, incurred, assumed or guaranteed, and that these subordination
provisions are for the benefit of the holders of Senior Debt of the Company.
Each Holder of a Security, by his or her acceptance thereof, acknowledges and agrees that the
provisions of this
Article X
are, and are intended to be, an inducement and a consideration
to all Persons who, in reliance on such provisions, become holders of, or continue to hold, Senior
Debt of the Company, and such provisions are made for the benefit of the holders of Senior Debt of
the Company, and those holders are made obligees hereunder, and any one or more of them may enforce
such provisions.
52
Section 10.2.
No Payment on Securities in Certain Circumstances
.
(a) Unless otherwise specified with respect to Securities of a series as contemplated
by
Section 2.1
, no payment shall be made by or on behalf of the Company or any
Guarantors, as the case may be, on account of the principal of, premium (if any) or interest
on or any Additional Amounts with respect to the Securities of any series or any related
Guarantees or to acquire any of those Securities (including any repurchases of those
Securities pursuant to the provisions thereof at the option of the Holder of those
Securities) for cash or property (other than Junior securities of the Company), or on
account of any redemption provisions of those Securities, in the event of default in payment
of any principal of, premium (if any) or interest on any Senior Debt of the Company when the
same becomes due and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise (a
Payment Default
), unless and until
that Payment Default has been cured or waived or otherwise has ceased to exist.
(b) Unless otherwise specified with respect to Securities of a series as contemplated
by
Section 2.1
, no payment shall be made by or on behalf of the Company or the
Guarantors, as the case may be, on account of the principal of, premium (if any) or interest
on or any Additional Amounts with respect to the Securities of any series or to acquire any
of those Securities (including any repurchases of those Securities pursuant to the
provisions thereof at the option of the Holder of those Securities) for cash or property
(other than Junior securities of the Company), or on account of the redemption provisions of
those Securities, in the event of any event of default (other than a Payment Default) with
respect to any Designated Senior Debt permitting the holders of that Designated
Senior Debt (or a trustee or other representative on behalf of the holders thereof) to
declare that Designated Senior Debt due and payable prior to the date on which it would
otherwise have become due and payable, on written notice thereof to the Company and the
Trustee (and if such Designated Senior Debt is Indebtedness of a Guarantor, such Guarantor)
by any holders of Designated Senior Debt (or a trustee or other representative on behalf of
the holders thereof) (the
Payment Blocking Notice
), unless and until that event of
default shall have been cured or waived or otherwise has ceased to exist or such Designated
Senior Debt has been discharged or paid in full; provided, that such payments may not be
prevented pursuant to this
Section 10.2(b)
for more than 179 days after an
applicable Payment Blocking Notice has been received by the Trustee unless the Designated
Senior Debt in respect of which that event of default exists has been declared due and
payable in its entirety, in which case no such payment may be made until that acceleration
has been rescinded or annulled or that Designated Senior Debt has been paid in full. Unless
otherwise specified with respect to Securities of a series as contemplated by
Section
2.1
, no event of default that existed or was continuing on the date of any Payment
Blocking Notice (whether or not that event of default is on the same issue of Designated
Senior Debt) may be made the basis for the giving of a second Payment Blocking Notice, and
only one such Payment Blocking Notice may be given in any period of 365 consecutive days.
(c) In furtherance of the provisions of
Section 10.1
, in the event that,
notwithstanding the foregoing provisions of this
Section 10.2
, any payment or
53
distribution of assets of the Company or any Guarantors, as the case may be (other than
Junior securities of the Company) shall be received by the Trustee or the Holders of the
Securities of any series and any related Guarantees or any Paying Agent with respect thereto
at a time when that payment or distribution was prohibited by the provisions of this
Section 10.2
, then, unless that payment or distribution is no longer prohibited by
this
Section 10.2
, that payment or distribution (subject to the provisions of
Section 10.7
) shall be received and held in trust by the Trustee or such Holders or
Paying Agent for the benefit of the holders of Senior Debt of the Company, and shall be paid
or delivered by the Trustee or such Holders or Paying Agent, as the case may be, to the
holders of Senior Debt of the Company remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing that Senior Debt of the Company may have been
issued, ratably, according to the aggregate amounts remaining unpaid on account of that
Senior Debt of the Company held or represented by each, for application to the payment of
all Senior Debt of the Company in full after giving effect to all concurrent payments and
distributions to or for the holders of that Senior Debt.
Section 10.3.
Securities and Any Guarantees Subordinated to Prior Payment of All Senior Debt on Dissolution,
Liquidation or Reorganization
. Upon any distribution of assets of the Company or any
Guarantors, as the case may be, or upon any dissolution, winding up, total or partial liquidation
or reorganization of the Company or any Guarantors, as the case may be, whether voluntary or
involuntary, in bankruptcy, insolvency, receivership or similar proceeding or upon assignment for
the benefit of creditors:
(a) the holders of all Senior Debt of the Company shall first be entitled to receive
payments in full before the Holders of Securities of any series and any related Guarantees
are entitled to receive any payment (other than in the form of Junior securities of the
Company) on account of the principal of, premium (if any) or interest on or any Additional
Amounts with respect to those Securities and any related Guarantees (other than Junior
securities);
(b) any payment or distribution of assets of the Company or any Guarantors, as the case
may be, of any kind or character, whether in cash, property or securities (other than Junior
securities of the Company), to which the Holders of Securities of any series and any related
Guarantees or the Trustee on behalf of those Holders would be entitled, except for the
provisions of this
Article X
, shall be paid by the liquidating trustee or agent or
other Person making such a payment or distribution directly to the holders of that Senior
Debt or their representative, ratably according to the respective amounts of Senior Debt
held or represented by each, to the extent necessary to make payment in full of all that
Senior Debt remaining unpaid after giving effect to all concurrent payments and
distributions to the holders of that Senior Debt; and
(c) in the event that, notwithstanding the foregoing, any payment or distribution of
assets of the Company or any Guarantors, as the case may be, of any kind or character,
whether in cash, property or securities (other than Junior securities), shall be received by
the Trustee or the Holders of Securities of any series and any related Guarantees or any
Paying Agent with respect thereto (or, if the Company, any Guarantor
54
or any other Subsidiary
is acting as its own Paying Agent, money for any such payment or distribution shall be
segregated or held in trust) on account of the principal of, premium (if any) or interest on
or any Additional Amounts with respect to the Securities of that series and any related
Guarantees before all Senior Debt of the Company is paid in full, that payment or
distribution (subject to the provisions of
Section 10.7
) shall be received and held
in trust by the Trustee or such Holder or Paying Agent for the benefit of the holders of
that Senior Debt, or their respective representatives, ratably according to the respective
amounts of that Senior Debt held or represented by each, to the extent necessary to make
payment as provided herein of all that Senior Debt remaining unpaid after giving effect to
all concurrent payments and distributions and all provisions therefor to or for the holders
of that Senior Debt, but only to the extent that as to any holder of that Senior Debt, as
promptly as practical following notice from the Trustee to the holders of that Senior Debt
that such prohibited payment has been received by the Trustee, Holder(s) or Paying Agent (or
has been segregated as provided above), that holder (or a representative therefor) notifies
the Trustee of the amounts then due and owing on that Senior Debt, if any, held by that
holder, and only the amounts specified in those notices to the Trustee shall be paid to the
holders of that Senior Debt.
Section 10.4.
Subrogation to Rights of Holders of Senior Debt
. Subject to the payment in full of all
Senior Debt of the Company as provided herein, the Holders of the Securities of any series and any
related Guarantees shall be subrogated (to the extent of the payments or distributions made to the
holders of that Senior Debt pursuant to the provisions of this
Article X
) to the rights of
the holders of that Senior Debt to receive payments
or distributions of assets of the Company or any Guarantors, as the case may be, applicable to that
Senior Debt until all amounts owing on the Securities shall be paid in full. For the purpose of
that subrogation, no such payments or distributions to the holders of that Senior Debt by the
Company, or by or on behalf of the Holders of the Securities of such series and any related
Guarantees by virtue of this
Article X
, which otherwise would have been made to those
Holders shall, as among the Company, its creditors other than the holders of Senior Debt of the
Company and those Holders, be deemed to be payment by the Company or any Guarantors, as the case
may be, or on account of that Senior Debt, it being understood that the provisions of this
Article X
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Securities of any series and any related Guarantees, on the one hand, and the
holders of that Senior Debt, on the other hand.
If any payment or distribution to which the Holders of the Securities and any related
Guarantees would otherwise have been entitled but for the provisions of this
Article X
shall have been applied, pursuant to the provisions of this
Article X
, to the payment of
amounts payable under Senior Debt of the Company, then those Holders shall be entitled to receive
from the holders of that Senior Debt any payments or distributions received by those holders of
Senior Debt of the Company in excess of the amount sufficient to pay all amounts payable under or
in respect of that Senior Debt in full.
Section 10.5.
Obligations of the Company and Any Guarantors Unconditional
. Nothing contained in this
Article X
or elsewhere in this Indenture or in the Securities is intended to or shall
impair, as between the Company, any Guarantors, as the case may be, and the Holders of the
Securities of any series and any related Guarantees, the obligation of the Company or any
55
Guarantors, as the case may be, which is absolute and unconditional, to pay to those Holders the
principal of, premium (if any) and interest on and any Additional Amounts with respect to the
Securities of that series and any related Guarantees as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the relative rights of
those Holders and creditors of the Company or any Guarantors, as the case may be, other than the
holders of Senior Debt of the Company, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable law on default under this
Indenture, subject to the rights, if any, under this
Article X
, of the holders of Senior
Debt of the Company in respect of cash, property or securities of the Company or any Guarantors, as
the case may be, received on the exercise of any such remedy. Notwithstanding anything to the
contrary in this
Article X
or elsewhere in this Indenture or in the Securities, on any
distribution of assets of the Company or any Guarantors, as the case may be, referred to in this
Article X
, the Trustee, subject to the provisions of
Sections 7.1
and
7.2
,
and the Holders of the Securities shall be entitled to rely on any order or decree made by any
court of competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to those Holders for the purpose of
ascertaining the Persons entitled to participate in that distribution, the holders of Senior Debt
of the Company and other Debt of the Company or any Guarantors, as the case may be, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this
Article X
so long as that court has been apprised of the
provisions of, or the order, decree or certificate makes reference to, the provisions of this
Article X
.
Section 10.6.
Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice
. The Trustee shall
not at any time be charged with knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee unless and until a Responsible Officer of the Trustee or
any Paying Agent shall have received, no later than two Business Days prior to that payment,
written notice thereof from the Company or any Guarantors, as the case may be, or from one or more
holders of Senior Debt of the Company or from any representative therefor and, prior to the receipt
of any such written notice, the Trustee, subject to the provisions of
Sections 7.1 and 7.2
,
shall be entitled in all respects conclusively to assume that no such fact exists.
Section 10.7.
Application by Trustee of Amounts Deposited with It
. Amounts deposited in trust with the
Trustee pursuant to and in accordance with
Article VIII
shall be for the sole benefit of
Holders of the Securities of the series and any related Guarantees for the benefit of which those
amounts were deposited, and, to the extent allocated for the payment of Securities of that series
and any related Guarantees, shall not be subject to the subordination provisions of this
Article X
. Otherwise, any deposit of assets with the Trustee or the Paying Agent (whether
or not in trust) for the payment of principal of, premium (if any) or interest on or any Additional
Amounts with respect to any Securities of any series and any related Guarantees shall be subject to
the provisions of
Sections 10.1, 10.2, 10.3 and 10.4
; provided that if prior to two
Business Days preceding the date on which by the terms of this Indenture any such assets may become
distributable for any purpose (including, without limitation, the payment of either principal of,
premium (if any) or interest on or any Additional Amounts with respect to any Security and any
related Guarantees), the Trustee or such Paying Agent shall not have received with respect to those
assets the written notice provided for in
Section 10.6
, then the Trustee or such Paying
56
Agent shall have full power and authority to receive those assets and to apply the same to the
purpose for which they were received, and shall not be affected by any notice to the contrary that
may be received by it on or after that date; and provided further that nothing contained in this
Article X
shall prevent the Company or any Guarantors, as the case may be, from making, or
the Trustee from receiving or applying, any payment in connection with the redemption of Securities
if the first publication of notice of that redemption (whether by mail or otherwise in accordance
with this Indenture) has been made, and the Trustee has received that payment from the Company or
any Guarantors, as the case may be, prior to the occurrence of any of the contingencies specified
in
Section 10.2 or 10.3
.
Section 10.8.
Subordination Rights Not Impaired by Acts or Omissions of the Company, Any Guarantors or
Holders of Senior Debt
. No right of any present or future holders of any Senior Debt of the
Company to enforce the subordination provisions contained in this
Article X
shall at any
time in any way be prejudiced or impaired by any act or failure to act on the part of the Company
or any Guarantors, as the case may be, or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company or any Guarantors, as the case may be, with the
terms of this Indenture, regardless of any knowledge thereof that any such holder may have or be
otherwise charged with. The holders of Senior Debt of the Company may extend, renew, modify or
amend the terms of the Senior Debt or any security therefor and release, sell or exchange that
security
and otherwise deal freely with the Company or any Guarantors, as the case may be, all without
affecting the liabilities and obligations of the parties to this Indenture or the Holders of the
Securities or any Guarantors, as the case may be.
Section 10.9.
Trustee to Effectuate Subordination of Securities
. Each Holder of a Security of any series
and any related Guarantees by his acceptance thereof authorizes and expressly directs the Trustee
on his behalf to take such action as may be necessary or appropriate to effectuate the
subordination provisions contained in this
Article X
and to protect the rights of the
Holders of the Securities of such series and any related Guarantees pursuant to this Indenture, and
appoints the Trustee his attorney-in-fact for that purpose, including, in the event of any
dissolution, winding up, liquidation or reorganization of the Company or any Guarantors, as the
case may be, (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment
for the benefit of creditors of the Company or any Guarantors, as the case may be), the filing of a
claim for the unpaid balance of his Securities and any related Guarantees in the form required in
said proceedings and cause said claim to be approved. If the Trustee does not file a proper claim
or proof of debt in the form required in that proceeding prior to 30 days before the expiration of
the time to file such claim or claims, then the holders of Senior Debt of the Company or their
representative is hereby authorized to have the right to file and is hereby authorized to file an
appropriate claim for and on behalf of the Holders of said Securities and any related Guarantees.
Nothing herein contained shall be deemed to authorize the Trustee or the holders of Senior Debt of
the Company or their representative to authorize or consent to or accept or adopt on behalf of any
Holder of Securities of any series and any related Guarantees any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of such series and any related
Guarantees or the rights of any Holder thereof, or to authorize the Trustee or the holders of
Senior Debt of the Company or their representative to vote in respect of the claim of any Holder of
the Securities in any such proceeding.
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Section 10.10.
Right of Trustee to Hold Senior Debt
. The Trustee in its individual capacity shall be
entitled to all of the rights set forth in this
Article X
in respect of any Senior Debt of
the Company at any time held by it to the same extent as any other holder of Senior Debt of the
Company, and nothing in this Indenture shall be construed to deprive the Trustee of any of its
rights as such holder.
Section 10.11.
Article X Not to Prevent Events of Default
. The failure to make a payment on account of
principal of or premium (if any) or interest on or any Additional Amounts with respect to the
Securities of any series and any related Guarantees by reason of any provision of this
Article X
shall not be construed as preventing the occurrence of a Default or an Event of
Default under
Section 6.1
with respect to Securities of such series and any related
Guarantees or in any way prevent the Holders of the Securities of any series and any related
Guarantees from exercising any right hereunder other than the right to receive payment on the
Securities of any series and any related Guarantees.
Section 10.12.
No Fiduciary Duty of Trustee to Holders of Senior Debt
. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt of the
Company, and shall not be liable to any of those holders (other than for its willful misconduct or
gross negligence) if it shall in good faith mistakenly pay over or distribute to the Holders of the
Securities of any series and any related Guarantees or the Company or any Guarantors, as the case
may be, or any other Person, cash, property or securities to which any holders of Senior Debt of
the Company shall be entitled by virtue of this
Article X
or otherwise. Nothing in this
Section 10.12
shall affect the obligation of any other such Person to hold that payment for
the benefit of, and to pay that payment over to, the holders of Senior Debt of the Company or their
representative.
Section 10.13.
Article Applicable to Paying Agent
. In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then acting hereunder, the term Trustee
as used in this
Article X
shall in that case (unless the context shall otherwise require)
be construed as extending to and including that Paying Agent within its meaning as fully for all
intents and purposes as if that Paying Agent were named in this Article in addition to or in place
of the Trustee;
provided, however
, that this
Section 10.13
shall not apply to the Company,
any Guarantor or any other Subsidiary of the Company if it or that Affiliate acts as Paying Agent.
ARTICLE XI
Securities Guarantee
Section 11.1.
Securities Guarantee
. Securities of any series that are to be guaranteed by the Securities
Guarantees of any Guarantors shall be guaranteed by such Guarantors as shall be established
pursuant to
Section 2.1
as Guarantors with respect to the Securities of such series;
provided that, prior to the authentication and delivery upon original issuance of Securities of any
series that are to be guaranteed by a Person, the Company, the Trustee and such Person shall have
entered into a supplemental indenture pursuant to
Section 9.1(10)
hereof whereby such
Person shall have executed a Securities Guarantee under this Indenture with respect to any series
of Securities as to which such Person has been so established pursuant to
Section 2.1
as a
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Guarantor thereof and shall have made each of the covenants and agreements of a Guarantor hereunder
with respect to each such series.
Securities of any series that are to be guaranteed by the Securities Guarantees of any
Guarantors shall be guaranteed in accordance with the terms of such Securities Guarantees as
established pursuant to
Section 2.1
with respect to such series of Securities and such
Securities Guarantees thereof and (except as otherwise specified as contemplated by
Section
2.1
for such series of Securities and such Securities Guarantees thereof) in accordance with
this
Article X
. Notwithstanding any provision of this
Article XI
to the contrary,
the provisions of this
Article XI
relating to any Guarantor shall (i) be applicable only
to, and inure solely to the benefit of, the Securities of any series designated, pursuant to
Section 2.1
, as entitled to the benefits of the related Securities Guarantee of such
Guarantor with respect to such series and (ii) so be
applicable, and inure to the benefit of, the Securities of such series except to the extent
otherwise provided as contemplated by
Section 2.1
with respect to the Securities of such
series.
Any Guarantor shall fully, unconditionally and irrevocably guarantee, as primary obligor and
not merely as surety, jointly and severally with any other Guarantor, to each Holder of the
Securities and the Trustee the full and punctual payment when due, whether at maturity, by
acceleration, by redemption or otherwise, of the principal of, premium, if any, interest and
Additional Amounts, if any, on the Securities and all other monetary Obligations of the Company
under this Indenture. Any Guarantor shall further agree (to the extent permitted by law) that the
Obligations may be extended or renewed, in whole or in part, without notice or further assent from
it, and that it will remain bound under this
Article XI
notwithstanding any extension or
renewal of any Obligation.
Any Guarantor shall waive presentation to, demand of payment from and protest to the Company
of any of the Obligations and also shall waive notice of protest for nonpayment. Any Guarantor
shall waive notice of any default under the Securities or the Obligations. The obligations of any
Guarantor shall not be affected by (a) the failure of any Holder to assert any claim or demand or
to enforce any right or remedy against the Company or any other Person under this Indenture, the
Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c)
any rescission, waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Securities or any other agreement; (d) the release of any Security held by any
Holder or the Trustee for the Obligations of any of them; (e) the failure of any Holder to exercise
any right or remedy against any other Guarantor; or (f) any change in the ownership of the Company.
Any Guarantor shall further agree that its Security Guarantee constitutes a Guarantee of
payment when due (and not a Guarantee of collection) and shall waive any right to require that any
resort be had by any Holder to any Security held for payment of the Obligations.
Except as expressly set forth in
Article VIII
and
Section 11.3
, the
obligations of each Guarantor shall not be subject to any reduction, limitation, impairment or
termination for any reason (other than payment of the Obligations in full), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of
the
59
foregoing, the obligations of each Guarantor shall not be discharged or impaired or otherwise
affected by the failure of the Trustee or any Holder to assert any claim or demand or to enforce
any remedy under this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or
would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
Each Guarantor shall further agree that its Security Guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of
or interest or Additional Amounts, if any, on any of the Obligations is rescinded or
must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company
or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay
any of the Obligations when and as the same shall become due, whether at maturity, by acceleration,
by redemption or otherwise, each Guarantor shall, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the
unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such
Obligations then due and owing (but only to the extent not prohibited by law) and except as
provided in
Section 11.3
.
Each Guarantor shall further agree that, as between such Guarantor, on the one hand, and the
Holders, on the other hand, (x) the maturity of the Obligations Guaranteed may be accelerated as
provided in this Indenture for the purposes of its Security Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the Obligations
Guaranteed and (y) in the event of any such declaration of acceleration of such Obligations, such
Obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantor for the purposes of the Security Guarantee.
Each Guarantor also shall agree to pay any and all reasonable costs and expenses (including
reasonable attorneys fees) incurred by the Trustee or the Holders in enforcing any rights under
this
Section 11.1
.
Section 11.2.
Execution and Delivery of Securities Guarantees; Notations of Guarantees
. The Securities
Guarantee of any Guarantor with respect to Securities of any series as to which such Guarantor has
been established as a Guarantor pursuant to
Section 2.1
shall be fully evidenced by such
Guarantors execution and delivery of a supplemental indenture hereto. Anything herein to the
contrary notwithstanding, there shall be no requirement that any Security having the benefit of a
Securities Guarantee have endorsed thereon or attached thereto such Securities Guarantee or a
notation of such Securities Guarantee. Solely with respect to Securities of any series that are
entitled to the benefits of any Securities Guarantee of any Guarantor and as to which Notations of
Guarantee are to be included on such Securities as designated pursuant to
Section 2.1(9)
,
to further evidence its Securities Guarantee set forth in
Section 11.1
or otherwise
established pursuant hereto with respect to Securities of such series, each of the Guarantors with
respect to Securities of any series shall agree that a notation relating to such Securities
Guarantee
60
(the
Notation of Guarantee
), substantially in the form attached hereto as Annex
A, shall be endorsed on each Security of such series entitled to the benefits of such Securities
Guarantee authenticated and delivered by the Trustee, which Notation of Guarantee shall be executed
by either manual or facsimile signature of an Officer of such Guarantor. Each of the Guarantors
with respect to Securities of any series shall agree that its Securities Guarantee set forth in
Section 11.1
or otherwise established pursuant hereto with respect to Securities of such
series shall remain in full force and effect notwithstanding any absence of Notations of Guarantees
as to such series or any failure to endorse on any Security the Notation of Guarantee relating to
such Securities Guarantee. If any Officer of any Guarantor with respect to Securities of any
series, whose signature is on the Notation of Guarantee on any Security of such series, no longer
holds
that office at the time the Trustee authenticates any Security or at any time thereafter, the
Securities Guarantee of such Security shall be valid nevertheless. The delivery of any Security of
a series entitled to the benefits of a Securities Guarantee under this
Article XI
or
otherwise established pursuant hereto by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of such Securities Guarantee on behalf of each Guarantor.
Section 11.3.
Limitation on Liability; Termination, Release and Discharge
.
(a) The obligations of any Guarantor will be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such Guarantor and
after giving effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its Security Guarantee
or pursuant to its contribution obligations under this Indenture, result in the obligations
of such Guarantor under its Security Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law.
(b) The Security Guarantee of a Guarantor shall be automatically and unconditionally
released and discharged, without the consent of the Holders, and no further action by the
Company, any Guarantor or the Trustee shall be required for such release (unless the Company
shall notify the Trustee that no release and discharge shall occur as a result thereof)
upon:
(1) the sale or other disposition (including by way of consolidation or merger)
of such Guarantor to a Person other than the Company or any Subsidiary of the
Company as permitted by this Indenture; or
(2) upon Legal Defeasance or Covenant Defeasance as provided in
Article
VIII
or upon satisfaction and discharge of this Indenture as provided in
Article XI
.
(c) Any Guarantor not released from its obligations under its Security Guarantee shall
remain liable for the full amount of principal of and interest on the Securities and for the
other obligations of any Guarantor as provided in this Article X.
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Section 11.4.
Limitation of Guarantors Liability
. Any Guarantor, and by its acceptance thereof each
Holder, shall confirm that it is the intention of all such parties that the Guarantee by such
Guarantor pursuant to its Security Guarantee not constitute a fraudulent transfer or conveyance for
purposes of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law. To effectuate the foregoing
intention, the Holders and each Guarantor shall irrevocably agree that the obligations of such
Guarantor under its Security Guarantee will be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Security Guarantee or pursuant to
Section
11.5
hereof, result in the obligations of such Guarantor under its Security Guarantee not
constituting such a fraudulent conveyance or fraudulent transfer. This
Section 11.4
is for
the benefit of the creditors of each Guarantor.
Section 11.5.
Contribution
. In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree that in the event any payment or distribution is made by any
Guarantor (a
Funding Guarantor
) under its Security Guarantee, such Funding Guarantor will
be entitled to a contribution from each other Guarantor (if any) in a pro rata amount based on the
Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all payments, damages
and expenses incurred by that Funding Guarantor in discharging the Companys obligations with
respect to the Securities or any other Guarantors obligations with respect to its Security
Guarantee.
Section 11.6
Guarantors May Consolidate, etc., on Certain Terms.
(a) Except as otherwise provided in Section 11.3 in connection with any release and
discharge of a Guarantor, no Guarantor may consolidate or combine with or merge with or into
(whether or not such Guarantor is the surviving person) or sell or convey all or
substantially all of its assets to another Person whether or not affiliated with such
Guarantor, unless the Person formed by or surviving any such consolidation, combination or
merger or the transferee Person (in each case if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee.
In case of any such consolidation, merger, combination, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of such Security Guarantee and the due and
punctual performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall become a Guarantor (and succeed to
and be substituted for the predecessor to the extent of any release and discharge of such
predecessor pursuant to Section 11.3).
(b) Notwithstanding clause (a) above, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation, combination or merger of a Guarantor with or
into the Company or another Guarantor, or shall prevent any sale or conveyance of all or
substantially all of the assets of a Guarantor to the Company or another Guarantor.
ARTICLE XII
Satisfaction and Discharge
Section 12.1.
Satisfaction and Discharge
. This Indenture will be discharged and will cease to be of
further effect as to all Securities of any series issued hereunder (except as to surviving rights
of registration of transfer or exchange of such Securities and as otherwise specified hereunder),
when:
(1) either:
(a) all Securities of such series that have been authenticated, except
lost, stolen or destroyed Securities that have been replaced or paid
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and Securities of such series for whose payment money has been deposited in
trust and thereafter repaid to the Company, have been delivered to the
Trustee for cancellation; or
(b) all Securities of such series that have not been delivered to the
Trustee for cancellation have become due and payable or will become due and
payable within one year by reason of the mailing of a notice of redemption
or otherwise and the Company or any Guarantor has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders of Securities of such series, cash in U.S.
dollars, non-callable Government Securities, or a combination of cash in
U.S. dollars and non-callable Government Securities, in amounts as will be
sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on such Securities not delivered to the
Trustee for cancellation for principal, premium, if any, and accrued
interest and Additional Amounts, if any, to the date of maturity or
redemption;
(2) no Default or Event of Default with respect to such series has occurred and
is continuing on the date of the deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) and the deposit
will not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;
(3) the Company or any Guarantor has paid or caused to be paid all sums payable
by it hereunder with respect to such series;
(4) the Company has delivered irrevocable instructions to the Trustee hereunder
to apply the deposited money toward the payment of such Securities at fixed maturity
or the Redemption Date, as the case may be; and
(5) the Company has delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, which state that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture with respect to such
series have been satisfied.
ARTICLE XIII
Miscellaneous
Section 13.1.
Trust Indenture Act Controls
. If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this Indenture by the TIA, the
provision required by the TIA shall control. Any Guarantor in addition to performing its
obligations under its Security Guarantee shall perform such other obligations as may be imposed
upon it with respect to this Indenture under the TIA.
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Section 13.2.
Notices
. Any notice or communication shall be in writing and delivered in person, by telecopier or
overnight air courier guaranteeing next day delivery or mailed by first-class mail addressed as
follows:
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if to the Company:
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Dr Pepper Snapple Group, Inc.
5301 Legacy Drive
Plano, Texas 75024
Attention: General Counsel
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if to the Trustee:
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The Company, any Guarantors or the Trustee by notice to the others may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the
Holders address as it appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed. The Registrar shall provide the Company with
address information with respect to the Holders as promptly as practicable following the Companys
request therefor. Any notice or communication shall also be mailed to any Person described in TIA
§ 3.13(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
Section 13.3.
Communication by Holders with other Holders
. Holders may communicate pursuant to TIA §
312(b) with other Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 13.4.
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:
(1) an Officers Certificate in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in
Section 13.5 hereof) stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with; and
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(2) an Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in
Section 13.5 hereof) stating that, in the opinion of such counsel, all such conditions precedent
have been complied with.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company or any Guarantor may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such Officer knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based, and may state that
it is so based, insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company or such Guarantor stating that the
information with respect to such factual matters known to the Company or such Guarantor, unless
such counsel knows that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 13.5.
Statements Required in Certificate or Opinion
. Each certificate or opinion with respect to
compliance with a covenant or condition provided for in this Indenture (except for the Certificate
specified in
Section 3.5
) shall include:
(1) a statement that the individual making such certificate or opinion has read
such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of such individual, he has made such
examination or investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such individual, such
covenant or condition has been complied with.
Section 13.6.
When Securities Disregarded
. In determining whether the Holders of the required principal amount of Securities of any series
have concurred in any direction, waiver or consent, Securities owned by the Company or by any
Person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded
65
and deemed not to be outstanding, except that, for
the purpose of determining whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded.
Also, subject to the foregoing, only Securities outstanding at the time shall be considered in any
such determination.
Section 13.7.
Rules by Trustee, Paying Agent and Registrar
. The Trustee may make reasonable rules for
action by, or a meeting of, Holders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
Section 13.8.
Legal Holidays
. A
Legal Holiday
is a Saturday, a Sunday or other day on which
commercial banking institutions are authorized or required to be closed in New York, New York. If
a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a
Legal Holiday, 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 13.9.
GOVERNING LAW
. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13.10.
No Recourse Against Others
. No director, manager, officer, employee, incorporator, member,
partner, stockholder or other owner of Capital Stock of the Company or any Guarantor, as such, will
have any liability for any obligations of the Company or any Guarantor under the Securities, this
Indenture or the Security Guarantees or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Holder of Securities by accepting a Security waives and
releases all such liability. The waiver and release are part of the consideration for issuance of
the Securities.
Section 13.11.
Successors
. All agreements of the Company in this Indenture and the Securities shall bind
its successors. All agreements of the Trustee in this Indenture shall bind its successors.
Section 13.12.
Multiple Originals
. The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
Section 13.13.
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 13.14.
No Adverse Interpretation of Other Agreements
. This Indenture may not be used to interpret
any other indenture, loan or debt agreement of the Company or any Subsidiary or any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this Indenture or the
Security Guarantees.
Section 13.15.
Table of Contents; Headings
. The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience of reference only,
are not intended to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date
first written above.
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DR PEPPER SNAPPLE GROUP, INC.
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By:
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Name:
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Title:
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[ ], as Trustee
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By:
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Name:
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Title:
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67
ANNEX
A
FORM OF NOTATION OF GUARANTEE
Each of the Guarantors (which term includes any successor Person under the Indenture) has
fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and all other amounts due and payable under the
Indenture and the Securities by the Company.
The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to
the Securities Guarantee and the Indenture are expressly set forth in
Article XI
of the
Indenture and reference is hereby made to the Indenture for the precise terms of the Securities
Guarantee.
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[NAME OF GUARANTOR]
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By:
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Name:
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Title:
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1