Exhibit 4.1
EXECUTION VERSION
VERISK ANALYTICS, INC.
as the Company
and
the Guarantors named herein
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
Senior Notes Indenture
Dated as of April 6, 2011
TABLE OF CONTENTS
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Page
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ARTICLE 1
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Definitions and Incorporation by Reference
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Section 1.01
. Definitions
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1
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Section 1.02
. Other Definitions
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7
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Section 1.03
. Incorporation by Reference of Trust Indenture Act
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7
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Section 1.04
. Rules of Construction
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8
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ARTICLE 2
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The Securities
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Section 2.01
. Form and Dating
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8
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Section 2.02
. Execution and Authentication
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9
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Section 2.03
. Amount Unlimited; Issuable in Series
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11
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Section 2.04
. Denomination and Date of Securities; Payments of Interest
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14
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Section 2.05
. Registrar and Paying Agent; Agents Generally
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14
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Section 2.06
. Paying Agent to Hold Money in Trust
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15
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Section 2.07
. Transfer and Exchange
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15
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Section 2.08
. Replacement Securities
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19
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Section 2.09
. Outstanding Securities
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20
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Section 2.10
. Temporary Securities
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21
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Section 2.11
. Cancellation
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21
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Section 2.12
. CUSIP Numbers
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21
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Section 2.13
. Defaulted Interest
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21
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Section 2.14
. Series May Include Tranches
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22
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ARTICLE 3
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Redemption
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Section 3.01
. Applicability of Article
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22
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Section 3.02
. Notice of Redemption; Partial Redemptions
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22
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Section 3.03
. Payment of Securities Called for Redemption
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24
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Section 3.04
. Exclusion of Certain Securities From Eligibility for Redemption
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25
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Section 3.05
. Mandatory and Optional Sinking Funds
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26
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ARTICLE 4
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Covenants
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Section 4.01
. Payment of Securities
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28
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Section 4.02
. Maintenance of Office or Agency
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29
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Section 4.03
. Securityholders Lists
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30
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Section 4.04
. Certificate to Trustee
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30
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i
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Page
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Section 4.05
. Reports by the Company
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30
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Section 4.06
. Additional Amounts
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31
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Section 4.07
. Calculation of Original Issue Discount
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31
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ARTICLE 5
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Successor Corporation
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Section 5.01
. When Company May Merge, Etc.
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32
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Section 5.02
. Successor Substituted
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32
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ARTICLE 6
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Default and Remedies
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Section 6.01
. Events of Default
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33
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Section 6.02
. Acceleration
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34
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Section 6.03
. Other Remedies
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35
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Section 6.04
. Waiver of Past Defaults
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35
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Section 6.05
. Control by Majority
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36
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Section 6.06
. Limitation on Suits
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36
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Section 6.07
. Rights of Holders to Receive Payment
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37
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Section 6.08
. Collection Suit by Trustee
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37
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Section 6.09
. Trustee May File Proofs of Claim
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37
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Section 6.10
. Application of Proceeds
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37
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Section 6.11
. Restoration of Rights and Remedies
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38
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Section 6.12
. Undertaking for Costs
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39
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Section 6.13
. Rights and Remedies Cumulative
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39
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Section 6.14
. Delay or Omission not Waiver
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39
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ARTICLE 7
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Trustee
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Section 7.01
. General
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39
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Section 7.02
. Certain Rights of Trustee
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40
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Section 7.03
. Individual Rights of Trustee
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42
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Section 7.04
. Trustees Disclaimer
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42
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Section 7.05
. Notice of Default
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42
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Section 7.06
. Reports by Trustee to Holders
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43
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Section 7.07
. Compensation and Indemnity
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43
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Section 7.08
. Replacement of Trustee
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44
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Section 7.09
. Acceptance of Appointment by Successor
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45
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Section 7.10
. Successor Trustee by Merger, Etc.
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46
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Section 7.11
. Eligibility
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46
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Section 7.12
. Money Held in Trust
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46
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ARTICLE 8
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Satisfaction and Discharge of Indenture; Unclaimed Moneys
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Section 8.01
. Satisfaction and Discharge of Indenture
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46
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ii
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Page
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Section 8.02
. Application by Trustee of Funds Deposited for
Payment of Securities
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47
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Section 8.03
. Repayment of Moneys Held by Paying Agent
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48
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Section 8.04
. Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Year
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48
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Section 8.05
. Defeasance and Discharge of Indenture
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48
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Section 8.06
. Defeasance of Certain Obligations
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50
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Section 8.07
. Reinstatement
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51
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Section 8.08
. Indemnity
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52
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Section 8.09
. Excess Funds
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52
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Section 8.10
. Qualifying Trustee
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52
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ARTICLE 9
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Amendments, Supplements and Waivers
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Section 9.01
. Without Consent of Holders
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52
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Section 9.02
. With Consent of Holders
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53
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Section 9.03
. Revocation and Effect of Consent
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54
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Section 9.04
. Notation on or Exchange of Securities
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55
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Section 9.05
. Trustee to Sign Amendments, Etc.
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55
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Section 9.06
. Conformity with Trust Indenture Act.
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55
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ARTICLE 10
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Guarantees
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Section 10.01
. The Guarantees
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55
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Section 10.02
. Guarantees Unconditional, Etc.
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56
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Section 10.03
. Discharge; Reinstatement
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56
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Section 10.04
. Waiver by the Guarantors
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57
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Section 10.05
. Subrogation and Contribution
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57
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Section 10.06
. Stay of Acceleration
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57
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Section 10.07.
Limitation on Amount of Guarantee
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57
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Section 10.08
. Execution and Delivery of Guarantees
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57
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Section 10.09.
Release of Guarantee
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58
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Section 10.10.
Additional Guarantors
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58
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ARTICLE 11
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Miscellaneous
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Section 11.01
. Trust Indenture Act of 1939
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58
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Section 11.02
. Notices
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58
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Section 11.03
. Certificate and Opinion as to Conditions Precedent
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59
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Section 11.04
. Statements Required in Certificate or Opinion
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60
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Section 11.05
. Evidence of Ownership
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60
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Section 11.06
. Rules by Trustee, Paying Agent or Registrar
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61
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Section 11.07
. Payment Date Other Than a Business Day
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61
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Section 11.08
. Governing Law; Waiver of Jury Trial
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61
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iii
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Page
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Section 11.09
. No Adverse Interpretation of Other Agreements
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62
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Section 11.10
. Successors
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62
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Section 11.11
. Duplicate Originals
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62
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Section 11.12
. Separability
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62
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Section 11.13
. Table of Contents, Headings, Etc.
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62
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Section 11.14
. Incorporators, Stockholders, Officers and Directors of
Company Exempt From Individual Liability
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62
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Section 11.15
. Judgment Currency
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62
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Section 11.16
. Force Majeure
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63
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Section 11.17
. U.S.A. Patriot Act
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63
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iv
SENIOR NOTES INDENTURE, dated as of April 6, 2011, among Verisk Analytics, Inc., a
Delaware corporation, as the Company (the
Company
) , Insurance Services Office, Inc., a Delaware
corporation, ISO Staff Services, Inc., a Delaware corporation, Xactware Solutions, Inc., a Delaware
corporation, ISO Services, Inc., a Delaware corporation, ISO Claims Services, Inc., a Delaware
corporation, AIR Worldwide Corporation, a Delaware corporation, Interthinx, Inc., a California
corporation, Verisk Health, Inc., a Massachusetts corporation, and D2Hawkeye, Inc., a Delaware
corporation, together with such other guarantors as may be added from time to time (each a
Guarantor
and collectively, the
Guarantors
) and Wells Fargo Bank, National Association, a
national banking association, as Trustee (the
Trustee
).
RECITALS
WHEREAS, the Company has duly authorized the issuance from time to time of its senior notes 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, each of the Guarantors has duly authorized, on a joint and several basis, the full
and unconditional guarantee of any Security of any series (the
Guarantees
);
WHEREAS, each of the Company and the Guarantors has duly authorized, among other things, the
authentication, execution, delivery and administration of this Indenture, and the Securities and
the Guarantees; 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 together with the
Guarantees by the holders thereof, the Company, the Guarantors and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders from time to time of
the Securities and the Guarantees or of any and all series thereof and of the coupons, if any,
appertaining thereto as follows:
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01
. Definitions.
Affiliate
of any Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such Person. For the purposes of
this definition, control (including, with correlative
meanings, the terms controlling, controlled by and under common control with) when used
with respect to any Person means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
Agent
means any Registrar, Paying Agent, transfer agent or Authenticating Agent.
Authorized Newspaper
means a newspaper (which, in the case of The City of New York, will, if
practicable, be
The Wall Street Journal
(Eastern Edition) and in the case of London, will, if
practicable, be the
Financial Times
(London Edition) and published in an official language of the
country of publication customarily published at least once a day for at least five days in each
calendar week and of general circulation in The City of New York or London, as applicable. If it
shall be impractical in the opinion of the Trustee to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication of such notice.
Bank Credit Agreement
means the Credit Agreement, dated July 2, 2009, among Insurance
Services Office, Inc., Bank of America, N.A., as administrative agent, swing line lender and L/C
issuer, and the lenders party thereto, as such agreement has been and may be amended, restated,
supplemented or otherwise modified from time to time (including, but not limited to, the inclusion
of additional parties thereunder, including the Company and parties that are Subsidiaries of the
Company and whose obligations are guaranteed by the Company thereunder), including all or any
portion of the indebtedness under such Credit Agreement or any successor agreements and includes
any agreement with one or more banks or other lending institutions which may be entered into by the Company or Insurance Services Office, Inc. refinancing all or any portion
of the indebtedness under such Credit Agreement or any successor agreements.
Board of Directors
means:
(a) 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;
(b) with respect to a partnership, the board of directors of the general partner of the
partnership;
(c) with respect to a limited liability company, the managing member or members or any
controlling committee of managers or members thereof or any board or committee serving a similar
management function; and
(d) with respect to any other Person, the individual or board or committee of such Person
serving a management function similar to those described in clauses (a), (b) or (c) of this
definition.
2
Board Resolution
means one or more resolutions of the Board of Directors of the Company or
any authorized committee thereof or, as the case may be, one or more resolutions of the Board of
Directors of the Guarantors or any authorized committee thereof, certified by the secretary or an
assistant secretary to have been duly adopted and to be in full force and effect on the date of
certification, and delivered to the Trustee.
Business Day
means any day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which banking institutions are authorized or required by law or regulation to close in
The City of New York, with respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits in London, or with respect to
Securities denominated in a specified currency other than United States dollars, in the principal
financial center of the country of the specified currency.
Capital Lease
means, with respect to any Person, any lease of any property which, in
conformity with GAAP, is required to be capitalized on the balance sheet of such Person.
Commission
means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
Company
means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to Article 5 of this Indenture and thereafter means the successor.
Corporate Trust Office
means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be administered, which office is, at the date of this
Indenture, located at 45 Broadway, 14
th
Floor, New York, New York 10006, Attention:
Corporate Trust Services.
Default
means any event that is, or after notice or passage of time or both would be, an
Event of Default.
Depositary
means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as Depositary by the
Company pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter
Depositary
shall mean or include each
Person who is then a Depositary hereunder, and if at any time there is more than one such Person,
Depositary
as used with respect to the Securities of any such series shall mean the Depositary
with respect to the Registered Global Securities of that series.
3
Exchange Act
means the Securities Exchange Act of 1934, as amended.
GAAP
means with respect to any computations required or permitted hereunder, generally
accepted accounting principles in effect in the United Sates as in effect from time to time;
provided, however
if the Company is required by the SEC to adopt (or is permitted to adopt and so
adopts) a different accounting framework, including but not limited to the International Financial
Reporting Standards, GAAP shall mean such new accounting framework as in effect from time to
time, including, without limitation, in each case, those accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved by a significant
segment of the accounting profession.
Guarantee
shall have the meaning set forth in the recitals of this Indenture.
Guarantors
means the Persons named as Guarantors in the first paragraph of this Indenture
and any additional Persons added as guarantors pursuant to Section 10.10, until a successor
replaces any such Guarantor and, thereafter, Guarantors shall mean the Guarantors not so
replaced together with any such successors.
Holder
or
Securityholder
means the registered holder of any Security with respect to
Registered Securities and the bearer of any Unregistered Security or any coupon appertaining
thereto, as the case may be.
indebtedness
means, with respect to any Person, obligations (other than Nonrecourse
Obligations) of such Person for borrowed money or evidenced by bonds, debentures, notes or similar
instruments.
Indenture
means this Indenture as originally executed and delivered or as it may be amended
or supplemented from time to time by one or more indentures supplemental to this Indenture entered
into pursuant to the applicable provisions of this Indenture and shall include the forms and terms
of the Securities of each series established as contemplated pursuant to Sections 2.01 and Section
2.03 and the terms of the Guarantees of each such series of Securities set forth in Article 10.
Nonrecourse Obligation
means indebtedness or other obligations substantially related to (a)
the acquisition of assets not previously owned by the Company or any of its subsidiaries or (b) the
financing of a project involving the development or expansion of its properties or those of any of
our subsidiaries, as to which the obligee with respect to such indebtedness or obligation has no
recourse to the Company or any of its subsidiaries, or any of our assets or those of any of our
subsidiaries other than the assets that were acquired with the proceeds
4
of such transaction or the project financed with the proceeds of such transaction (and the
proceeds thereof).
Officer
means, with respect to the Company, the chairman of the Board of Directors, the
president or chief executive officer, any executive vice president, any senior vice president, any
vice president, the chief financial officer, the treasurer or any assistant treasurer, or the
secretary or any assistant secretary.
Officers Certificate
means, with respect to the Company or the Guarantors, a certificate
signed in the name of the Company or the Guarantors, as the case may be, (i) by the chairman of the
Board of Directors, the president or chief executive officer, an executive vice president, a senior
vice president or a vice president, and (ii) by the chief financial officer, the treasurer or any
assistant treasurer, or the secretary or any assistant secretary, and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act, if applicable, and
include (except as otherwise expressly provided in this Indenture) the statements provided in
Section 11.04, if applicable.
Opinion of Counsel
means a written opinion signed by legal counsel, who may be an employee
of or counsel to the Company or the Guarantors, as the case may be, satisfactory to the Trustee.
Each such opinion shall comply with Section 314 of the Trust Indenture Act, if applicable, and
include the statements provided in Section 11.04, if and to the extent required thereby.
original issue date
of any Security (or portion thereof) means the earlier of (a) the date
of authentication of such Security or (b) the date of any Security (or portion thereof) for which
such Security was issued (directly or indirectly) on registration of transfer, exchange or
substitution.
Original Issue Discount Security
means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 6.02.
Periodic Offering
means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the issuance of such
Securities.
Person
means an individual, a corporation, a partnership, a limited liability company, an
association, a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
Principal
of a Security means the principal amount of, and, unless the context indicates
otherwise, includes any premium payable on, the Security.
5
Registered Global Security
means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance with Section 2.02,
and bearing the legend prescribed in Section 2.02.
Registered Security
means any Security registered on the Security Register (as defined in
Section 2.05).
Responsible Officer
when used with respect to the Trustee, shall mean an officer of the
Trustee in the Corporate Trust Office, having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer to whom such matter is
referred because of such officers knowledge of and familiarity with the particular subject.
Securities
means any of the securities, as defined in the first paragraph of the recitals
hereof, that are authenticated and delivered under this Indenture and, unless the context indicates
otherwise, shall include any coupon appertaining thereto.
Securities Act
means the Securities Act of 1933, as amended.
Subsidiary
means, with respect to any Person, any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of shares of capital stock
or other interests (including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more
subsidiaries of such Person or (c) one or more subsidiaries of such Person.
Trustee
means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of Article 7 and thereafter shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is more than one such
Person, Trustee as used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.
Trust Indenture Act
means the Trust Indenture Act of 1939, as amended (15 U.S. Code §§
77aaa-77bbbb), as it may be amended from time to time.
Unregistered Security
means any Security other than a Registered Security.
U.S. Government Obligations
means securities that are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of an agency or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of America,
and shall also
6
include a depository receipt issued by a bank or trust company as custodian with respect to
any such U.S. Government Obligation or a specific payment of interest on or principal of any such
U.S. Government Obligation held by such custodian for the account of the holder of a depository
receipt;
provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such depository receipt.
Yield to Maturity
means, as the context may require, the yield to maturity (i) on a series
of Securities or (ii) if the Securities of a series are issuable from time to time, on a Security
of such series, calculated at the time of issuance of such series in the case of clause (i) or at
the time of issuance of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent redetermination of interest on such series or on such Security, and calculated
in accordance with the constant interest method or such other accepted financial practice as is
specified in the terms of such Security.
Section 1.02
. Other Definitions.
Each of the following terms is defined in the section set
forth opposite such term:
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Term
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Section
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Authenticating Agent
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2.02
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Cash Transaction
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7.03
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Dollars
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4.02
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Event of Default
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6.01
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Judgment Currency
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11.15
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(a)
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mandatory sinking fund payment
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3.05
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optional sinking fund payment
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3.05
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Paying Agent
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2.05
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record date
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2.04
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Registrar
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2.05
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Required Currency
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11.15
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(a)
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Security Register
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2.05
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self-liquidating paper
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7.03
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sinking fund payment date
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3.05
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tranche
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2.14
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Section 1.03
. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture
refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in,
and made a part of, this Indenture. The following terms used in this Indenture that are defined by
the Trust Indenture Act have the following meanings:
indenture securities
means the Securities;
7
indenture security holder
means a Holder or a Securityholder;
indenture to be qualified
means this Indenture;
indenture trustee
or
institutional trustee
means the Trustee; and
obligor
on the indenture securities means the Company or any other obligor on the
Securities.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by
reference in the Trust Indenture Act to another statute or defined by a rule of the Commission and
not otherwise defined herein have the meanings assigned to them therein.
Section 1.04
. Rules of Construction.
Unless the context otherwise requires:
(a) an accounting term not otherwise defined has the meaning assigned to it in accordance with
GAAP;
(b) words in the singular include the plural, and words in the plural include the singular;
(c) herein, hereof and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision;
(d) all references to Sections or Articles refer to Sections or Articles of this Indenture
unless otherwise indicated; and
(e) use of masculine, feminine or neuter pronouns should not be deemed a limitation, and the
use of any such pronouns should be construed to include, where appropriate, the other pronouns.
ARTICLE 2
The Securities
Section 2.01
. Form and Dating.
The Securities of each series shall be substantially in such
form or forms (not inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply
with any law, or with any rules of any securities exchange or usage, all as may be determined by
the officers executing such
8
Securities as evidenced by their execution of the Securities. Unless otherwise so
established, Unregistered Securities shall have coupons attached.
Section 2.02
. Execution and Authentication.
Two Officers shall execute the Securities and
one Officer shall execute the coupons appertaining thereto for the Company by facsimile or manual
signature in the name and on behalf of the Company. The seal of the Company, if any, shall be
reproduced on the Securities. If an Officer whose signature is on a Security or coupon
appertaining thereto no longer holds that office at the time the Security is authenticated, the
Security and such coupon shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an authenticating agent (the
Authenticating Agent
) to authenticate Securities. The 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 Authenticating Agent.
A Security and the coupons appertaining thereto shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on the Security or on the
Security to which such coupon appertains by an authorized officer. The signature shall be
conclusive evidence that the Security or the Security to which the coupon appertains has been
authenticated under this Indenture.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series having attached thereto appropriate coupons, if any,
executed by the Company to the Trustee for authentication together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Company. In authenticating any Securities of a
series, the Trustee shall receive prior to the authentication of any Securities of such series, and
(subject to Article 7) shall be fully protected in conclusively relying upon, unless and until such
documents have been superseded or revoked:
(a) any Board Resolution and/or executed supplemental indenture referred to in Sections 2.01
and 2.03 by or pursuant to which the forms and terms of the Securities of that series were
established;
(b) an Officers Certificate setting forth the form or forms and terms of the Securities,
stating that the form or forms and terms of the Securities of such series have been, or, in the
case of a Periodic Offering, will be when established in accordance with such procedures as shall
be referred to therein, established in compliance with this Indenture; and
(c) an Opinion of Counsel substantially to the effect that the form or forms and terms of the
Securities of such series have been, or, in the case of a Periodic Offering, will be when
established in accordance with such procedures as
9
shall be referred to therein, established in compliance with this Indenture and that the
supplemental indenture, to the extent applicable, and Securities have been duly authorized and, if
executed and authenticated in accordance with the provisions of this Indenture and delivered to and
duly paid for by the purchasers thereof on the date of such opinion, would be entitled to the
benefits of this Indenture and would be valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting creditors rights
generally, general principles of equity, and that all laws and requirements in respect of the
execution and delivery by the Company of such Securities have been complied with, and covering such
other matters as shall be specified therein and as shall be reasonably requested by the Trustee.
The Trustee shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustees own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
Notwithstanding the provisions of Sections 2.01 and 2.02, if, in connection with a Periodic
Offering, all Securities of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Board Resolution otherwise required pursuant to Section 2.01 or the
written order, Officers Certificate and Opinion of Counsel otherwise required pursuant to Section
2.02 at or prior to the authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first Security of such
series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the Trustee may
conclusively rely, as to the authorization by the Company of any of such Securities, the forms and
terms thereof and the legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel and the other documents delivered pursuant to Sections 2.01 and 2.02, as
applicable, in connection with the first authentication of Securities of such series.
If the Company shall establish pursuant to Section 2.03 that the Securities of a series or a
portion thereof are to be issued in the form of one or more Registered Global Securities, then the
Company shall execute and the Trustee shall authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued in such form and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or its custodian or pursuant to such Depositarys instructions and (iv) shall bear a
legend substantially to the following effect: Unless and until it is exchanged in whole or in
part for Securities in definitive registered form, this Security may not be transferred
10
except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.
The execution and delivery of the Guarantees by the Guarantors shall be evidenced by the
execution and delivery of this Indenture by each of the Guarantors as set forth in Section 10.08.
The terms of the Guarantees and obligations of the Guarantors are set forth in Article 10.
Section 2.03
. Amount Unlimited; Issuable in Series.
The aggregate principal amount of
Securities which 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 or one or more indentures supplemental hereto, prior to the initial issuance
of Securities of any series, subject to the last sentence of this Section 2.03,
(a) the designation of the Securities of the series, which shall distinguish the Securities of
the series from the Securities of all other series;
(b) whether the Securities are entitled to the benefit of any Guarantee by any Guarantor;
(c) any limit upon the aggregate principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial issuance of the Securities of that
series (except for Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities of the series pursuant
hereto);
(d) the date or dates on which the principal of the Securities of the series is payable (which
date or dates may be fixed or extendible);
(e) the rate or rates (which may be fixed or variable) per annum at which the Securities of
the series shall bear interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered Securities) on which a record
shall be taken for the determination of Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be determined;
(f) if other than as provided in Section 4.02, the place or places where the principal of and
any interest on Securities of the series shall be payable, any Registered Securities of the series
may be surrendered for exchange, notices, demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and notice to Holders may be published;
11
(g) the right, if any, of the Company to redeem Securities of the series, in whole or in part,
at its option and the period or periods within which, the price or prices at which and any terms
and conditions upon which Securities of the series may be so redeemed, pursuant to any sinking fund
or otherwise;
(h) the obligation, if any, of the Company to redeem, purchase or repay Securities of the
series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option
of a Holder thereof and the price or prices at which and the period or periods within which and any
of 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;
(i) if other than denominations of $2,000 and any integral multiple of $1,000 in excess
thereof, the denominations in which Securities of the series shall be issuable;
(j) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof;
(k) if other than the coin or currency in which the Securities of the series are denominated,
the coin or currency in which payment of the principal of or interest on the Securities of the
series shall be payable or if the amount of payments of principal of and/or interest on the
Securities of the series may be determined with reference to an index based on a coin or currency
other than that in which the Securities of the series are denominated, the manner in which such
amounts shall be determined;
(l) if other than the currency of the United States of America, the currency or currencies,
including composite currencies, in which payment of the Principal of and interest on the Securities
of the series shall be payable, and the manner in which any such currencies shall be valued against
other currencies in which any other Securities shall be payable;
(m) whether the Securities of the series or any portion thereof will be issuable as Registered
Securities (and if so, whether such Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons) (and if so, whether such Securities will be
issued in temporary or permanent global form), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of Unregistered Securities or the payment of
interest thereon and, if other than as provided herein, the terms upon which Unregistered
Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(n) whether the Securities of the series may be exchangeable for and/or convertible into the
common stock of the Company or any other security;
12
(o) whether and under what circumstances the Company will pay additional amounts on the
Securities of the series held by a person who is not a U.S. person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional amounts;
(p) if the Securities of the series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, the form and terms of
such certificates, documents or conditions;
(q) any trustees, depositaries, authenticating or paying agents, transfer agents or the
registrar or any other agents with respect to the Securities of the series;
(r) provisions, if any, for the defeasance of the Securities of the series (including
provisions permitting defeasance of less than all Securities of the series), which provisions may
be in addition to, in substitution for, or in modification of (or any combination of the foregoing)
the provisions of Article 8;
(s) if the Securities of the series are issuable in whole or in part as one or more Registered
Global Securities or Unregistered Securities in global form, the identity of the Depositary or
common Depositary for such Registered Global Security or Securities or Unregistered Securities in
global form;
(t) any other Events of Default or covenants with respect to the Securities of the series; and
(u) any other terms of the Securities of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining thereto shall be
substantially identical, except in the case of Registered Securities as to date and denomination,
except in the case of any Periodic Offering and except as may otherwise be provided by or pursuant
to the Board Resolution referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time and may be issued
from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to
such Board Resolution or in any such indenture supplemental hereto and any forms and terms of
Securities to be issued from time to time may be completed and established from time to time prior
to the issuance thereof by procedures described in such Board Resolution or supplemental indenture.
Unless otherwise expressly provided with respect to a series of Securities, the aggregate
principal amount of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized with respect to such
series as increased.
13
Section 2.04
. Denomination and Date of Securities; Payments of Interest.
The Securities of
each series shall be issuable as Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.03 or, if not so established with respect to Securities of
any series, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. The
Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or
in accordance with such plan as the Officers of the Company executing the same may determine, as
evidenced by their execution thereof.
Unless otherwise specified with respect to a series of Securities, each Security shall be
dated the date of its authentication. The Securities of each series shall bear interest, if any,
from the date, and such interest and shall be payable on the dates, established as contemplated by
Section 2.03.
The person in whose name any Registered Security of any series is registered at the close of
business on any record date applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except if and to the extent the Company shall
default in the payment of the interest due on such interest payment date for such series, in which
case the provisions of Section 2.13 shall apply. The term
record date
as used with respect to
any interest payment date (except a date for payment of defaulted interest) for the Securities of
any series shall mean the date specified as such in the terms of the Registered Securities of such
series established as contemplated by Section 2.03, or, if no such date is so established, the
fifteenth day next preceding such interest payment date, whether or not such record date is a
Business Day.
Section 2.05
. Registrar and Paying Agent; Agents Generally.
The Company shall maintain an
office or agency where Securities may be presented for registration, registration of transfer or
for exchange (the
Registrar
) and an office or agency where Securities may be presented for
payment (the
Paying Agent
), which shall be in the Borough of Manhattan, The City of New York.
The Company shall cause the Registrar to keep a register of the Registered Securities and of their
registration, transfer and exchange (the
Security Register
). The Company may have one or more
additional Paying Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture and the Trust
Indenture Act that relate to such Agent. The Company shall give prompt written notice to the
Trustee of the name and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such. The
Company may remove any Agent upon written notice to such Agent
14
and the Trustee;
provided
that no such removal shall become effective until (i) the acceptance
of an appointment by a successor Agent to such Agent as evidenced by an appropriate agency
agreement entered into by the Company and such successor Agent and delivered to the Trustee or (ii)
notification to the Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company or any affiliate of the
Company may act as Paying Agent or Registrar;
provided
that neither the Company, any Guarantor nor
an affiliate of the Company or any Guarantor shall act as Paying Agent in connection with the
defeasance of the Securities or the Guarantees or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying Agent and Authenticating
Agent. If, at any time, the Trustee is not the Registrar, the Registrar shall make available to
the Trustee ten days prior to each interest payment date and at such other times as the Trustee may
reasonably request the names and addresses of the Holders as they appear in the Security Register.
Section 2.06
. Paying Agent to Hold Money in Trust.
Not later than 10:00 a.m. New York City
time on each due date or, in the case of Unregistered Securities, 10:00 a.m. New York City time on
the Business Day prior to the due date, of any Principal or interest on any Securities, the Company
shall deposit with the Paying Agent money in immediately available funds sufficient to pay such
Principal or interest. 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 Holders of such
Securities or the Trustee all money held by the Paying Agent for the payment of Principal of and
interest on such Securities and shall promptly notify the Trustee of any default by the Company in
making any such payment. The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee and account for any funds disbursed, and the Trustee may at any time during
the continuance of any payment default, upon written request to a Paying Agent, require such Paying
Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon
doing so, the Paying Agent shall have no further liability for the money so paid over to the
Trustee. If the Company or any affiliate of the Company acts as Paying Agent, it will, on or
before each due date of any Principal of or interest on any Securities, segregate and hold in a
separate trust fund for the benefit of the Holders thereof a sum of money sufficient to pay such
Principal or interest so becoming due until such sum of money shall be paid to such Holders or
otherwise disposed of as provided in this Indenture, and will promptly notify the Trustee in
writing of its action or failure to act as required by this Section.
Section 2.07
. Transfer and Exchange.
Unregistered Securities (except for any temporary
global Unregistered Securities) and coupons (except for coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
15
At the option of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a Registered Security
or Registered Securities of such series and tenor having authorized denominations and an equal
aggregate principal amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance with Section 2.05 and
upon payment, if the Company shall so require, of the charges hereinafter provided. If the
Securities of any series are issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.03, at the option of the Holder thereof, Unregistered Securities
of any series may be exchanged for Registered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.02, with, in the case of Unregistered Securities that have coupons
attached, all unmatured coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided. At the option of
the Holder thereof, if Unregistered Securities of any series, maturity date, interest rate and
original issue date are issued in more than one authorized denomination, except as otherwise
established pursuant to Section 2.03, such Unregistered Securities may be exchanged for
Unregistered Securities of such series and tenor having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance with Section 4.02,
with, in the case of Unregistered Securities that have coupons attached, all unmatured coupons and
all matured coupons in default thereto appertaining, and upon payment, if the Company shall so
require, of the charges hereinafter provided. Registered Securities of any series may not be
exchanged for Unregistered Securities of such series. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Upon surrender for registration of transfer of any Registered Security of a series at the
agency of the Company that shall be maintained for that purpose in accordance with Section 2.05 and
upon payment, if the Company shall so require, of the charges hereinafter provided, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal amount.
All Registered Securities presented for registration of transfer, exchange, redemption or
payment shall be duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee duly executed by, the holder or his
attorney duly authorized in writing.
16
The Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any exchange or registration of transfer
of Securities. No service charge shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.07, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of any series notifies the
Company that it is unwilling or unable to continue as Depositary for such Registered Global
Securities or if at any time the Depositary for such Registered Global Securities shall no longer
be eligible under applicable law, the Company shall appoint a successor Depositary eligible under
applicable law with respect to such Registered Global Securities. If a successor Depositary
eligible under applicable law for such Registered Global Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of the Companys order for the authentication
and delivery of definitive Registered Securities of such series and tenor, will authenticate and
deliver Registered Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered Global Securities, in
exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion and subject to the procedures of the
Depositary determine that any Registered Global Securities of any series shall no longer be
maintained in global form. In such event the Company will execute, and the Trustee, upon receipt
of the Companys order for the authentication and delivery of definitive Registered Securities of
such series and tenor, will authenticate and deliver, Registered Securities of such series and
tenor in any authorized denominations, in an aggregate principal amount equal to the principal
amount of such Registered Global Securities, in exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the form of Registered Global
Securities pursuant to the preceding two paragraphs, the Company agrees to supply the Trustee with
a reasonable supply of certificated Registered Securities without the legend required by Section
2.02 and the Trustee agrees to hold such Registered Securities in safekeeping until authenticated
and delivered pursuant to the terms of this Indenture.
17
If established by the Company pursuant to Section 2.03 with respect to any Registered Global
Security, the Depositary for such Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(a) to the Person specified by such Depositary new Registered Securities of the same
series and tenor, of any authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such Persons beneficial interest
in the Registered Global Security; and
(b) to such Depositary a new Registered Global Security in a denomination equal to
the difference, if any, between the principal amount of the surrendered Registered Global
Security and the aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (a) above.
Registered Securities issued in exchange for a Registered Global Security pursuant to this
Section 2.07 shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Persons
in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations
of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such transfer or exchange.
Neither the Trustee nor any Agent shall have any responsibility or liability for any actions
taken or not taken by the Depositary.
Notwithstanding anything herein or in the forms or terms of any Securities to the contrary,
none of the Company, the Trustee or any agent of the Company or the Trustee shall be required to
exchange any Unregistered Security for a Registered Security if such exchange would result in
adverse federal income tax consequences to the Company (such as, for example, the inability of the
Company to deduct from its income, as computed for federal income tax purposes, the interest
payable on the Unregistered Securities) under then applicable United States federal income tax
laws. The Trustee and any such agent shall be entitled to conclusively rely on an Officers
Certificate or an Opinion of Counsel in determining such result.
18
The Registrar shall not be required (i) to issue, authenticate, register the transfer of or
exchange Securities of any series for a period of 15 days before the mailing of a notice of
redemption of such Securities to be redeemed or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part.
Section 2.08
. Replacement Securities.
If any mutilated Security or a Security with a
mutilated coupon appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver, in exchange for such mutilated Security or in exchange
for the Security to which a mutilated coupon appertains, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such mutilated Security or to the
Security to which such mutilated coupon appertains.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as
may be required by them to save each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security or coupon (without surrender thereof except in the case of a mutilated
Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them and any agent of any of
them harmless, and in the case of destruction, loss or theft, evidence satisfactory to the Company
and the Trustee and any agent of them of the destruction, loss or theft of such Security and the
ownership thereof;
provided
,
however
, that the Principal of and any interest on Unregistered
Securities shall, except as otherwise provided in Section 4.02, be payable only at an office or
agency located outside the United States of America.
Upon the issuance of any new Security under this Section, the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
19
Every new Security of any series, with its coupons, if any, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security or in exchange for any mutilated Security, or in
exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and any such new Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) any
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities or coupons.
Section 2.09
. Outstanding Securities.
Securities outstanding at any time are all Securities
that have been authenticated by the Trustee except for those cancelled by it, those delivered to it
for cancellation, those paid pursuant to Section 2.08, those described in this Section 2.09 as not
outstanding and those that have been defeased pursuant to Section 8.05.
If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless and
until the Trustee and the Company receive proof satisfactory to them that the replaced Security is
held by a holder in due course.
If the Paying Agent (other than the Company or an affiliate of the Company) holds on the
maturity date or any redemption date or date for repurchase of the Securities money sufficient to
pay Securities payable or to be redeemed or repurchased on that date, then on and after that date
such Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one of its affiliates holds
such Security,
provided
,
however
, that, in determining whether the Holders of the requisite
principal amount of the outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company or any affiliate of
the Company shall be disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities as to which a Responsible Officer of the
Trustee has received written notice to be so owned shall be so disregarded. Any Securities so
owned which are pledged by the Company, or by any affiliate of the Company, as security for loans
or other obligations, otherwise than to another such affiliate of the Company, shall be deemed to
be outstanding, if the pledgee is entitled pursuant to the terms of its pledge agreement and is
free to exercise in its or his discretion the right to vote such securities, uncontrolled by the
Company or by any such affiliate.
20
Section 2.10
. 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 of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Securities, as evidenced by
their execution of such temporary Securities. If temporary Securities of any series are issued,
the Company will cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of any series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series and tenor upon surrender
of such temporary Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of definitive Securities of
such series and tenor and authorized denominations. Until so exchanged, the temporary Securities
of any series shall be entitled to the same benefits under this Indenture as definitive Securities
of such series.
Section 2.11
. Cancellation.
The Company at any time may deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued and sold. The
Registrar, any transfer agent and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment. The Trustee shall cancel and dispose of in
accordance with its customary procedures all Securities surrendered for transfer, exchange, payment
or cancellation and shall, upon written request of the Company, deliver a certificate of
disposition to the Company. The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.
Section 2.12
. CUSIP Numbers.
The Company in issuing the Securities may use CUSIP and
CINS numbers (if then generally in use), and the Trustee shall use CUSIP numbers or CINS numbers,
as the case may be, in notices of redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange. The Company will promptly
notify the Trustee in writing of any change in the CUSIP or CINS numbers.
Section 2.13
. Defaulted Interest.
If the Company defaults in a payment of interest on the
Registered Securities, it shall pay, or shall deposit with the Paying Agent money in immediately
available funds sufficient to pay, the defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest (as may be specified in the terms thereof, established pursuant
to Section 2.03) to
21
the Persons who are Holders on a subsequent special record date, which shall mean the 15th day
next preceding the date fixed by the Company for the payment of defaulted interest, whether or not
such day is a Business Day. At least 15 days before such special record date, the Company shall
mail to each Holder of such Registered Securities and to the Trustee a notice that states the
special record date, the payment date and the amount of defaulted interest to be paid.
Section 2.14
. Series May Include Tranches.
A series of Securities may include one or more
tranches (each a
tranche
) of Securities, including Securities issued in a Periodic Offering. The
Securities of different tranches may have one or more different terms, including authentication
dates and public offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price. Notwithstanding any
other provision of this Indenture, with respect to Sections 2.02 (other than the fourth, sixth and
seventh paragraphs thereof) through 2.04, 2.07, 2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through
6.14, 8.01 through 8.07, 9.02 and Section 11.07, if any series of Securities includes more than one
tranche, all provisions of such sections applicable to any series of Securities shall be deemed
equally applicable to each tranche of any series of Securities in the same manner as though
originally designated a series unless otherwise provided with respect to such series or tranche
pursuant to Section 2.03. In particular, and without limiting the scope of the next preceding
sentence, any of the provisions of such sections which provide for or permit action to be taken
with respect to a series of Securities shall also be deemed to provide for and permit such action
to be taken instead only with respect to Securities of one or more tranches within that series (and
such provisions shall be deemed satisfied thereby), even if no comparable action is taken with
respect to Securities in the remaining tranches of that series.
ARTICLE 3
Redemption
Section 3.01
. Applicability of Article.
The provisions of this Article 3 shall be applicable
to the Securities of any series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified as contemplated by
Section 2.03 for Securities of such series.
Section 3.02
. Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders
of Registered Securities of any series to be redeemed as a whole or in part at the option of the
Company shall be given by mailing notice of such redemption by first class mail, postage prepaid,
at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders
of Registered Securities of such series at their last addresses as they shall appear upon the
registry books. Notice of redemption to the Holders of Unregistered Securities of any series to be
redeemed as a whole or in part who have filed their names and addresses with the Trustee pursuant
to Section 313(c)(2) of the Trust
22
Indenture Act, shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption,
to such Holders at such addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Company, the Trustee shall make such information available to the Company for
such purpose). Notice of redemption to all other Holders of Unregistered Securities of any series
to be redeemed as a whole or in part shall be published in an Authorized Newspaper in The City of
New York or with respect to any Security the interest on which is based on the offered quotations
in the interbank Eurodollar market for dollar deposits in an Authorized Newspaper in London, in
each case, once in each of three successive calendar weeks, the first publication to be not less
than 30 days nor more than 60 days prior to the date fixed for redemption. Any notice which is
mailed or published in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption of any other
Security of such series.
The notice of redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the CUSIP numbers of the Securities to
be redeemed, the date fixed for redemption, the redemption price, or if not then ascertainable, the
manner of calculation thereof, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities and, in the case of Securities with coupons attached
thereto, of all coupons appertaining thereto maturing after the date fixed for redemption, that
such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the
case, that interest accrued to the date fixed for redemption will be paid as specified in such
notice and that on and after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed in part only, the notice
of redemption shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series and tenor in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option of the
Company shall be given by the Company or, at the Companys written request at least 10 days prior
to the last date on which notice of redemption may be given to Holders pursuant to the first
paragraph of this Section 3.02 (or such shorter period as shall be acceptable to the Trustee) if
all of the outstanding Securities are to be redeemed, or at least 15 days prior to the last date on
which notice of redemption may be given to Holders pursuant to the first paragraph of this Section
3.02 (or such shorter period as shall be acceptable to the Trustee) if less than all the
outstanding Securities of a series are to be redeemed, by the Trustee in the name and at the
expense of the Company.
23
On or before 10:00 a.m. New York City time on the redemption date or, in the case of
Unregistered Securities, on or before 10:00 a.m. New York City time on the Business Day prior to
the redemption date specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if the Company is
acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 2.06)
an amount of money sufficient to redeem on the redemption date all the Securities of such series so
called for redemption at the appropriate redemption price, together with accrued interest to the
date fixed for redemption. If all of the outstanding Securities of a series are to be redeemed,
the Company will deliver to the Trustee at least 10 days prior to the last date on which notice of
redemption may be given to Holders pursuant to the first paragraph of this Section 3.02 (or such
shorter period as shall be acceptable to the Trustee) an Officers Certificate stating that all
such Securities are to be redeemed. If less than all the outstanding Securities of a series are to
be redeemed, the Company will deliver to the Trustee at least 15 days prior to the last date on
which notice of redemption may be given to Holders pursuant to the first paragraph of this Section
3.02 (or such shorter period as shall be acceptable to the Trustee) an Officers Certificate
stating the aggregate principal amount of such Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of any restriction on such redemption provided
in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of
the Company which is subject to a condition specified in the terms of such Securities or elsewhere
in this Indenture, the Company shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officers Certificate evidencing compliance with
such restriction or condition.
If less than all the Securities of a series are to be redeemed, the Trustee shall select in such manner as it shall deem appropriate and fair, and in accordance with the
procedures of the Depositary, Securities of such series to be redeemed in whole or in part.
Securities may be redeemed in part in principal amounts equal to authorized denominations for
Securities of such series. The Trustee shall promptly notify the Company in writing of the
Securities of such series selected for redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be redeemed.
Section 3.03
. Payment of Securities Called for Redemption.
If notice of redemption has been
given as above provided, the Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after
such date (unless the Company shall default in the payment of such Securities at the redemption
price, together with interest accrued to such date) interest on the
24
Securities or portions of Securities so called for redemption shall cease to accrue, and the
unmatured coupons, if any, appertaining thereto shall be void and, except as provided in Sections
7.12 and 8.02, such Securities shall cease from and after the date fixed for redemption to be
entitled to any benefit under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, together with all coupons, if any, appertaining thereto
maturing after the date fixed for redemption, said Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in the case of
Securities with coupons attached thereto, to the Holders of the coupons for such interest upon
surrender thereof, and in the case of Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date subject to the terms and provisions of
Sections 2.04 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for redemption and is not
accompanied by all appurtenant coupons maturing after the date fixed for redemption, the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security of any series redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at
the expense of the Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
Section 3.04
. Exclusion of Certain Securities From Eligibility for Redemption.
Securities
shall be excluded from eligibility for selection for redemption if they are identified by
registration and certificate number in a written statement signed by an authorized officer of the
Company and delivered to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) the Company or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company.
25
Section 3.05
. Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein referred to as a
mandatory
sinking fund payment
, and any payment in excess of such minimum amount provided for by the terms
of the Securities of any series is herein referred to as an
optional sinking fund payment
. The
date on which a sinking fund payment is to be made is herein referred to as the
sinking fund
payment date
.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities
of such series theretofore purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and
delivered to the Trustee for cancellation pursuant to Section 2.11, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by the Company at the
option of the Company pursuant to the terms of such Securities or through any optional sinking fund
payment. Securities so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date for any series, or
such shorter period as shall be acceptable to the Trustee, the Company will deliver to the Trustee
an Officers Certificate (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of specified Securities of
such series and the basis for such credit, (b) stating that none of the specified Securities of
such series has theretofore been so credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company intends to exercise its
right to make an optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Company intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Company to be entitled to credit therefor
as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.11 to the Trustee with such Officers Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers Certificate shall be irrevocable
and upon its receipt by the Trustee the Company shall become unconditionally obligated to make all
the cash payments or delivery of Securities therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any such sixtieth day,
to deliver such Officers Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such
26
series due on the next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect thereof and (ii) that
the Company will make no optional sinking fund payment with respect to such series as provided in
this Section.
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking fund redemption
price thereof together with accrued interest thereon to the date fixed for redemption. If such
amount shall be $50,000 (or such lesser sum) or less and the Company makes no such request then it
shall be carried over until a sum in excess of $50,000 (or such lesser sum) is available. The
Trustee shall select, in the manner provided in Section 3.02, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date as being owned of record and beneficially by, and
not pledged or hypothecated by either (a) the Company or (b) an entity specifically identified in
such Officers Certificate as directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the manner provided in
Section 3.02 (and with the effect provided in Section 3.03) for the redemption of Securities of
such series in part at the option of the Company. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be applied in
accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular Securities of such
series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to
the payment of the Principal of, and interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund payment date or, in the case
of Unregistered Securities, 10:00 a.m. New York City time on the Business Day prior to the sinking
fund payment date, the Company shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on
the next following sinking fund payment date.
27
The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or mail any notice of redemption of Securities of such series by operation of the
sinking fund during the continuance of a Default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such Default or
Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such Default or Event of Default, be deemed to have been collected under Article
6 and held for the payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 6.04 or the Default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the redemption of such
Securities.
ARTICLE 4
Covenants
Section 4.01
. Payment of Securities.
The Company shall pay the Principal of and interest on
the Securities on the dates and in the manner provided in the Securities and this Indenture. The
interest on Securities with coupons attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they severally mature.
The interest on any temporary Unregistered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be paid, as to the installments of interest
evidenced by coupons attached thereto, if any, only upon presentation and surrender thereof, and,
as to the other installments of interest, if any, only upon presentation of such Unregistered
Securities for notation thereon of the payment of such interest. The interest on Registered
Securities (together with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof (subject to Section 2.04) and at the option of the
Company may be paid by mailing checks for such interest payable to or upon the written order of
such Holders at their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of any series to the
contrary, if the Company and a Holder of any Registered Security so agree, payments of interest on,
and any portion of the Principal of, such Holders Registered Security (other than interest payable
at maturity or on any redemption or repayment date or the final payment of Principal on such
Security) shall be made by the Paying Agent, upon receipt from the Company of immediately available
funds by 11:00 A.M., New York City time (or such other time as may be agreed to between the Company
and the Paying Agent), directly to the Holder of
28
such Security (by Federal funds wire transfer or otherwise) if the Holder has delivered
written instructions to the Trustee 15 days prior to such payment date requesting that such payment
will be so made and designating the bank account to which such payments shall be so made and in the
case of payments of Principal, surrenders the same to the Trustee in exchange for a Security or
Securities aggregating the same principal amount as the unredeemed principal amount of the
Securities surrendered. The Trustee shall be entitled to conclusively rely on the last instruction
delivered by the Holder pursuant to this Section 4.01 unless a new instruction is delivered 15 days
prior to a payment date. The Company will indemnify and hold each of the Trustee and any Paying
Agent harmless against any loss, liability or expense (including attorneys fees and expenses)
resulting from any act or omission to act on the part of the Company or any such Holder in
connection with any such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue Principal, and interest on overdue installments of
interest, to the extent lawful, at the rate per annum specified in the Securities.
Section 4.02
. Maintenance of Office or Agency.
The Company will maintain in the United
States of America, an office or agency where Securities may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The Company hereby
initially designates the Corporate Trust Office of the Trustee, located in New York, New York, as
such office or agency of the Company. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in Section 11.02.
The Company will maintain one or more agencies in a city or cities located outside the United
States of America (including any city in which such an agency is required to be maintained under
the rules of any stock exchange on which the Securities of any series are listed) where the
Unregistered Securities, if any, of each series and coupons, if any, appertaining thereto may be
presented for payment. No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the Company within the United
States of America nor will any payment be made by transfer to an account in, or by mail to an
address in, the United States of America unless, pursuant to applicable United States laws and
regulations then in effect, such payment can be made without adverse tax consequences to the
Company. Notwithstanding the foregoing, if full payment in United States Dollars (
Dollars
) at
each agency maintained by the Company outside the United States of America for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or effectively precluded by
exchange controls or other similar
29
restrictions, payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars may be made at an agency of the Company
maintained in the United States of America.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of any series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations;
provided
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 of any change in the location of any such other office or
agency.
Each of the Guarantors will maintain in the United States of America, an office or agency
where notices and demands to or upon any Guarantor in respect of the Guarantees and this Indenture
may be served. Each of the Guarantors hereby initially designates the Corporate Trust Office of
the Trustee, located in New York, New York, as such office or agency of each such Guarantor. Each
of the Guarantors will give prompt written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time any Guarantor 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 address of the Trustee
set forth in Section 11.02.
Section 4.03
. Securityholders Lists.
The Company will furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of
the holders of the Securities pursuant to Section 312 of the Trust Indenture Act of 1939 (a)
semi-annually not more than 15 days after each record date for the payment of semi-annual interest
on the Securities, as hereinabove specified, as of such record date, and (b) at such other times as
the Trustee may request in writing, within thirty days after receipt by the Company of any such
request as of a date not more than 15 days prior to the time such information is furnished.
Section 4.04
. Certificate to Trustee.
The Company will furnish to the Trustee annually, on
or before a date not more than 120 days after the end of its fiscal year (which, on the date
hereof, is a calendar year), a brief certificate (which need not contain the statements required by
Section 11.04) from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants under this Indenture
(such compliance to be determined without regard to any period of grace or requirement of notice
provided under this Indenture) which certificate shall comply with the requirements of the Trust
Indenture Act.
Section 4.05
. Reports by the Company.
The Company covenants to file with the Trustee, within
15 days after the Company files the same with the
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Commission, copies of the annual reports and of the information, documents, and other reports
which the Company may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act. Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustees receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein,
including the Companys compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers Certificates).
Section 4.06
. Additional Amounts.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first interest payment date with respect to that
series of Securities and at least 10 days prior to each date of payment of Principal of or interest
on the Securities of that series if there has been a change with respect to the matters set forth
in the below-mentioned Officers Certificate, the Company shall furnish to the Trustee and the
principal paying agent, if other than the Trustee, an Officers Certificate instructing the Trustee
and such paying agent whether such payment of Principal of or interest on the Securities of that
series shall be made to Holders of the Securities of that series without withholding or deduction
for or on account of any tax, assessment or other governmental charge described in the Securities
of that series. If any such withholding or deduction shall be required, then such Officers
Certificate shall specify by country the amount, if any, required to be withheld or deducted on
such payments to such Holders and shall certify the fact that additional amounts will be payable
and the amounts so payable to each Holder, and the Company shall pay to the Trustee or such paying
agent the additional amounts required to be paid 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 willful misconduct 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.
Whenever in this Indenture there is mentioned, in any context, the payment of the Principal of
or interest or any other amounts on, or in respect of, any Security of any series, such mention
shall be deemed to include mention of the payment of additional amounts provided by the terms of
such series established hereby or pursuant hereto to the extent that, in such context, additional
amounts are, were or would be payable in respect thereof pursuant to such terms, and express
mention of the payment of additional amounts (if applicable) in any provision hereof shall not be
construed as excluding the payment of additional amounts in those provisions hereof where such
express mention is not made.
Section 4.07
. Calculation of Original Issue Discount.
The Company shall file with the
Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on outstanding
Securities as of the end of such year and (ii) such
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other specific information relating to such original issue discount as may then be relevant
under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE 5
Successor Corporation
Section 5.01
. When Company May Merge, Etc.
Neither the Company nor any Guarantor shall
consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of all
or substantially all of its property and assets (in one transaction or a series of related
transactions) to, any Person unless:
(a) (i) the Company or such Guarantor, as the case may be, shall be the continuing Person or
(ii) the Person (if other than the Company or such Guarantor, as the case may be,) formed by such
consolidation or into which the Company or such Guarantor, as the case may be, is merged or to
which properties and assets of the Company or such Guarantor, as the case may be, shall be sold,
conveyed, transferred or leased shall be a Person organized and validly existing under the laws of
the United States of America or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of the obligations of the
Company or such Guarantor, as the case may be, on all of the Securities or the Guarantees, as the
case may be, and under this Indenture and the Company or such Guarantor, as the case may be;
(b) immediately after giving effect to the transaction, no Default shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee (A) an Opinion of Counsel stating that
such consolidation, merger or sale, conveyance, transfer or lease and such supplemental indenture
(if any) complies with this provision and that all conditions precedent provided for herein
relating to such transaction have been complied with and that such supplemental indenture (if any)
constitutes the legal, valid and binding obligation of the Company or such Guarantor, as the case
may be, and any such successor enforceable against such entity in accordance with its terms,
subject to customary exceptions and (B) an Officers Certificate to the effect that immediately
after giving effect to such transaction, no Default shall have occurred and be continuing.
Section 5.02
. Successor Substituted.
Upon any consolidation or merger, or any sale,
conveyance, transfer, lease or other disposition of all or substantially all of the property and
assets of the Company or any Guarantor in accordance with Section 5.01 of this Indenture, the
successor Person formed by such consolidation or into which the Company or such Guarantor, as the
case may be, is merged or to which such sale, conveyance, transfer, lease or other disposition is
made shall succeed to, and be substituted for, and may exercise every right and power of, the
Company or such Guarantor, as the case may be, under this Indenture with the same effect as if such
successor Person had been named as the
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Company or a Guarantor, as the case may be, herein and thereafter the predecessor Person,
except in the case of a lease, shall be relieved of all obligations and covenants under this
Indenture, the Securities and the Guarantees, as applicable.
ARTICLE 6
Default and Remedies
Section 6.01
. Events of Default.
An
Event of Default
shall occur with respect to the
Securities of any series if:
(a) the Company defaults in the payment of the Principal of any Security of such series when
the same becomes due and payable at maturity, upon acceleration, redemption or mandatory
repurchase, including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of interest on any Security of such series when the
same becomes due and payable, and such default continues for a period of 30 days;
(c) a failure by the Company or any Guarantor to comply with its agreements contained in this
Indenture (other than those referenced in clauses (a) and (b) above) and such failure continues for
90 days after written notice to the Company or any such Guarantor, as applicable, by the Trustee or
to the Company or any such Guarantor, as applicable, and the Trustee by the Holders of 25% or more
in aggregate principal amount of the outstanding Securities of each series affected thereby (acting
as a separate series) specifying such default or breach and requiring it to be remedied and stating
that such notice is a Notice of Default hereunder;
(d) a court having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days;
(e) the Company (i) commences a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company
or for all or substantially all of the property and assets of the Company or (iii) effects any
general assignment for the benefit of creditors;
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(f) any Guarantee ceases to be in full force and effect (except as contemplated by the terms
of this Indenture) or is declared null and void in a judicial proceeding or the applicable
Guarantor denies or disaffirms its obligations under this Indenture or Guarantee; or
(g) any other Event of Default established pursuant to Section 2.03 with respect to the
Securities of such series occurs.
No Event of Default with respect to a single series of Securities issued hereunder (and under
or pursuant to any supplemental indenture, Officers Certificate or Board Resolution) specific to
such series shall constitute an Event of Default with respect to any other series of Securities
unless otherwise provided in this Indenture or any supplemental indenture, Officers Certificate or
Board Resolution with respect to any other series of Securities.
Section 6.02
. Acceleration.
(a) If an Event of Default other than as described in clauses
(d) or (e) of Section 6.01 with respect to the Securities of any series then outstanding occurs and
is continuing, then, and in each and every such case, except for any series of Securities the
principal of which shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Securities of any such series then
outstanding hereunder by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of any such series are
Original Issue Discount Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.03) of all Securities of such series, and
the interest accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
(b) If an Event of Default described in clauses (d) or (e) of Section 6.01 occurs and is
continuing, then the principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms thereof established
pursuant to Section 2.03) of all the Securities then outstanding and interest accrued thereon, if
any, shall be and become immediately due and payable, without any notice or other action by any
Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition that if, at any time after the
principal (or, if the Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to Section 2.03) of the
Securities of any series (or of all the Securities, as the case may be) shall have been so declared
or become due and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest upon all the
Securities of each such series (or of all the Securities, as the case may be) and the principal of
any and all Securities of each
34
such series (or of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of each such series to the date of such payment or deposit)
and such amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07,
and if any and all Events of Default under this Indenture, other than the non-payment of the
principal of Securities which shall have become due by acceleration, shall have been cured, waived
or otherwise remedied as provided herein, then and in every such case the Holders of a majority in
aggregate principal amount of all the then outstanding Securities of all such series that have been
accelerated (voting as a single class), by written notice to the Company and to the Trustee, may
waive all defaults with respect to all such series (or with respect to all the Securities, as the
case may be) and rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default or shall impair any
right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared or become due and payable pursuant to
the provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section 6.03
. Other Remedies.
If a payment default or an Event of Default with respect to
the Securities of any series occurs and is continuing, the Trustee may pursue, in its own name or
as trustee of an express trust, any available remedy by proceeding at law or in equity to collect
the payment of Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.
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.
Section 6.04
. Waiver of Past Defaults.
Subject to Sections 6.02, 6.07 and 9.02, the Holders
of at least a majority in principal amount (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as is then accelerable under Section 6.02) of the
outstanding Securities of all series affected (voting as a single class), by notice to the Company
and the Trustee, may waive an existing Default or Event of Default with respect to the Securities
of such series and its consequences, except a Default in the payment of Principal of or
35
interest on any Security as specified in clauses (a) or (b) of Section 6.01 or in respect of a
covenant or provision of this Indenture which cannot be modified or amended without the consent of
the Holder of each outstanding Security affected. Upon any such waiver, such Default shall cease
to exist, and any Event of Default with respect to the Securities of such series arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any right consequent
thereto.
Section 6.05
. Control by Majority.
Subject to Sections 7.01 and 7.02(e), the Holders of at
least a majority in aggregate principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as is then accelerable under Section 6.02) of the
outstanding Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
provided
, that the
Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may
involve the Trustee in personal liability or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders not joining in the giving of such direction; and
provided further
, that the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities pursuant to this Section 6.05.
Section 6.06
. Limitation on Suits.
No Holder of any Security of any series may institute any
proceeding, judicial or otherwise, with respect to this Indenture or the Securities of any series,
or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice of a continuing Event of
Default with respect to the Securities of such series;
(b) the Holders of at least 25% in aggregate principal amount of outstanding Securities of
such series shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to
the Trustee against any costs, liabilities or expenses to be incurred in compliance with such
request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and
(e) during such 60-day period, the Holders of a majority in aggregate principal amount of the
outstanding Securities of such series have not given the Trustee a direction that is inconsistent
with such written request.
36
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder (it being understood that the Trustee does not have
an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial
to such Holders).
Section 6.07
. Rights of Holders to Receive Payment.
Notwithstanding any other provision of
this Indenture, the right of any Holder of a Security to receive payment of Principal of or
interest, if any, on such Holders Security on or after the respective due dates expressed on such
Security, 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 6.08
. Collection Suit by Trustee.
If an Event of Default with respect to the
Securities of any series in payment of Principal or interest specified in clause (a) or (b) of
Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount (or such portion thereof as
specified in the terms established pursuant to Section 2.03 of Original Issue Discount Securities)
of Principal of, and accrued interest remaining unpaid on, together with interest on overdue
Principal of, and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest on, the Securities of such series, in each case at the rate or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in such Securities, and such
further amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07.
Section 6.09
. 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 (including any claim for amounts due the Trustee under Section 7.07) and the Holders
allowed in any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered to collect and
receive any moneys, securities or other property payable or deliverable upon conversion or exchange
of the Securities or upon any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it under Section 7.07. Nothing herein contained shall be deemed
to empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 6.10
. Application of Proceeds.
Any moneys collected by the Trustee pursuant to this
Article in respect of the Securities of any series shall be applied in the following order at the
date or dates fixed by the Trustee and, in case
37
of the distribution of such moneys on account of Principal or interest, upon presentation of
the several Securities and coupons appertaining to such Securities in respect of which moneys have
been collected and noting thereon the payment, or issuing Securities of such series and tenor in
reduced principal amounts in exchange for the presented Securities of such series and tenor if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 7.07 applicable
to the Securities of such series in respect of which moneys have been collected;
SECOND: In case the principal of the Securities of such series in respect of which
moneys have been collected shall not have become and be then due and payable, to the
payment of interest on the Securities of such series in default in the order of the
maturity of the installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in respect of which
moneys have been collected shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the Securities of such series
for Principal and interest, with interest upon the overdue Principal, and (to the extent
that such interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such series; and in
case such moneys shall be insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such series, then to the payment of such Principal and interest or
Yield to Maturity, without preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over Principal, or of any installment of
interest over any other installment of interest, or of any Security of such series over
any other Security of such series, ratably to the aggregate of such Principal and accrued
and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company or any other person
lawfully entitled thereto.
Section 6.11
. Restoration of Rights and Remedies.
If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then, and in every such case, subject to any determination in such proceeding,
the
38
Company, the Guarantors, the Trustee and the Holders shall be restored to their former
positions hereunder and thereafter all rights and remedies of the Company, the Guarantors, the
Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.12
. 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, in either case in respect to the Securities of any series, a court may require any party
litigant in such suit (other than the Trustee) to file an undertaking to pay the costs of the suit,
and the court may assess reasonable costs, including reasonable attorneys fees and expenses,
against any party litigant (other than the Trustee) in the suit having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section 6.12 does not apply
to a suit by a Holder pursuant to Section 6.07, a suit instituted by the Trustee or a suit by
Holders of more than 10% in principal amount of the outstanding Securities of such series.
Section 6.13
. Rights and Remedies Cumulative.
Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities in Section
2.08, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.14
. Delay or Omission not Waiver.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
ARTICLE 7
Trustee
Section 7.01
. General.
The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act and as set forth herein. Notwithstanding the foregoing, no provision of
this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, unless it receives indemnity satisfactory to it against any loss, liability
or expense. Whether or not therein expressly so provided, every
39
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 Article 7.
Section 7.02
. Certain Rights of Trustee.
Subject to Trust Indenture Act Sections 315(a)
through (d):
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, Officers Certificate, Opinion of Counsel (or both),
statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper person or persons. The Trustee need not
investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;
(b) before the Trustee acts or refrains from acting, it may require an Officers Certificate
and/or an Opinion of Counsel, which shall conform to Section 11.04 and shall cover such other
matters as the Trustee may reasonably request. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion. Subject to
Sections 7.01 and 7.02, whenever in the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by an Officers Certificate
delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted
by it under the provisions of this Indenture upon the faith thereof;
(c) the Trustee may act through its attorneys and agents not regularly in its employ and shall
not be responsible for the misconduct or negligence of any agent or attorney appointed with due
care;
(d) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
40
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within its rights or powers or for any action it takes or
omits to take in accordance with the direction of the Holders in accordance with Section 6.05
relating to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(g) the Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(h) prior to the occurrence of an Event of Default hereunder and after the curing or waiving
of all Events of Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, Officers Certificate, Opinion of Counsel, Board
Resolution, statement, instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in
writing so to do by the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then outstanding;
provided
that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require
indemnity satisfactory to it against such expenses or liabilities as a condition to proceeding;
(i) in no event shall the Trustee be responsible or liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;
(j) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
(k) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended
41
to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each
agent, custodian and other Person employed to act hereunder;
(l) the Trustee shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder; and
(m) the Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized to take specified actions pursuant to this
Indenture.
Section 7.03
. 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 the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and
311. For purposes of Trust Indenture Act Section 311(b)(4) and (6), the following terms shall
mean:
(a)
cash transaction
means any transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand; and
(b)
self-liquidating paper
means any draft, bill of exchange, acceptance or obligation which
is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
Section 7.04
. Trustees Disclaimer.
The recitals contained herein and in the Securities
(except the Trustees certificate of authentication) shall be taken as statements of the Company
and not of the Trustee and the Trustee assumes no responsibility for the correctness of the same.
Neither the Trustee nor any of its agents (a) makes any representation as to the validity or
adequacy of this Indenture, the Guarantees or the Securities and (b) shall be accountable for the
Companys use or application of the proceeds from the Securities.
Section 7.05
. Notice of Default.
If any Default with respect to the Securities of any series
occurs and is continuing and if such Default is known to the actual knowledge of a Responsible
Officer with the corporate trust department of the Trustee, the Trustee shall give to each Holder
of Securities of such series notice of such Default within 90 days after it occurs (a) if any
Unregistered
42
Securities of such series are then outstanding, to the Holders thereof, by publication at
least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London and (b) to all Holders of Securities of such series
in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing or publication of such notice;
provided
,
however
, that, except in the case of a Default in the payment of the Principal of or interest on
any Security, the Trustee shall be protected in withholding such notice if the Trustee in good
faith determines that the withholding of such notice is in the interests of the Holders.
Section 7.06
. Reports by Trustee to Holders.
The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each July 15
following the date of this Indenture, deliver to Holders a brief report, dated as of such July 15,
which complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will promptly notify the Trustee in writing when any Securities are listed
on any stock exchange and of any delisting thereof.
Section 7.07
. Compensation and Indemnity.
The Company shall pay to the Trustee such
compensation as shall be agreed upon in writing from time to time for its services. The
compensation of the Trustee shall not be limited by any law on compensation of a Trustee of an
express trust. The Company shall reimburse the Trustee and any predecessor Trustee upon request
for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee or such predecessor Trustee. Such expenses shall include the reasonable compensation and
expenses of the Trustees or such predecessor Trustees agents, counsel and other persons not
regularly in their employ.
The Company shall indemnify the Trustee and any predecessor Trustee for, and hold them
harmless against, any loss, damage, claim, cost, liability or expense incurred by them without
negligence or bad faith on their part arising out of or in connection with the acceptance or
administration of this Indenture and the Securities or the issuance of the Securities or of series
thereof or the trusts hereunder and the performance of duties under this Indenture and the
Securities, including the costs and expenses of defending themselves against or investigating any
claim (whether asserted by the Company, a Guarantor, a Holder or any other Person) or liability and
of complying with any process served upon them or any of their officers in connection with the
exercise or performance of any of their powers or duties under this Indenture and the Securities.
43
To secure the Companys payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, in its
capacity as Trustee, except money or property held in trust to pay Principal of, and interest on
particular Securities.
The obligations of the Company under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the rejection or termination of this
Indenture under bankruptcy law. Such additional indebtedness shall be a senior claim to that of
the Securities upon all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities or coupons, and the
Securities are hereby subordinated to such senior claim. Without prejudice to any other rights
available to the Trustee under applicable law, if the Trustee renders services and incurs expenses
following an Event of Default under Section 6.01(d) or Section 6.01(e) hereof, the parties hereto
and the holders by their acceptance of the Securities hereby agree that such expenses are intended
to constitute expenses of administration under any bankruptcy law.
Section 7.08
. Replacement of Trustee.
A resignation or removal of the Trustee as Trustee
with respect to the Securities of any series and appointment of a successor Trustee as Trustee with
respect to the Securities of any series shall become effective only upon the successor Trustees
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the Securities of any series at any time by
so notifying the Company in writing. The Holders of a majority in principal amount of the
outstanding Securities of any series may remove the Trustee as Trustee with respect to the
Securities of such series by so notifying the Trustee in writing and may appoint a successor
Trustee with respect thereto with the consent of the Company. The Company may remove the Trustee
as Trustee with respect to the Securities of any series if: (i) the Trustee is no longer eligible
under Section 7.11 of this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the Securities of any series,
or if a vacancy exists in the office of Trustee with respect to the Securities of any series for
any reason, the Company shall promptly appoint a successor Trustee with respect thereto. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of
the outstanding Securities of such series may appoint a successor Trustee in respect of such
Securities to replace the successor Trustee appointed by the Company. If the successor Trustee
with respect to the Securities of any series does not deliver its written acceptance required by
Section 7.09 within 30 days after the retiring
44
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority
in principal amount of the outstanding Securities of such series may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor Trustee with respect
thereto.
The Company shall give notice of any resignation and any removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee in respect of the
Securities of such series to all Holders of Securities of such series. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the Securities of any series
pursuant to this Section 7.08 and Section 7.09, the Companys obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.
Section 7.09
. Acceptance of Appointment by Successor.
In case of the appointment hereunder
of a successor Trustee with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its
charges and subject to the lien provided for in Section 7.07, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts
45
hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee; and 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, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be eligible under this Article and qualified under Section 310(b) of the
Trust Indenture Act.
Section 7.10
. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or transferee corporation or
national banking association without any further act shall be the successor Trustee with the same
effect as if the successor Trustee had been named as the Trustee herein.
Section 7.11
. Eligibility.
This Indenture shall always have a Trustee who satisfies the
requirements of Trust Indenture Act Section 310(a). The Trustee shall have a combined capital and
surplus of at least $25,000,000 as set forth in its most recent published annual report of
condition.
Section 7.12
. Money Held in Trust.
The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent required by law and except
for money held in trust under Article 8 of this Indenture.
ARTICLE 8
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 8.01
. Satisfaction and Discharge of Indenture.
If at any time (a) the Company shall
have paid or caused to be paid the Principal of and interest on all the Securities of any series
outstanding hereunder (other than Securities of such series which have been destroyed, lost or
stolen and which have been
46
replaced or paid as provided in Section 2.08) as and when the same shall have become due and
payable, (b) the Company shall have delivered to the Trustee for cancellation all Securities of any
series theretofore authenticated (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08)
or (c) (i) all the securities of such series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and (ii) the Company shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash
(other than moneys repaid by the Trustee or any paying agent to the Company in accordance with
Section 8.04) or U.S. Government Obligations, maturing as to principal and interest in such amounts
and at such times as will insure (without consideration of the reinvestment of such interest) the
availability of cash, or a combination thereof, sufficient to pay at maturity or upon redemption
all Securities of such series (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08)
not theretofore delivered to the Trustee for cancellation, including principal and interest due or
to become due on or prior to such date of maturity or redemption as the case may be, and if, in any
such case, the Company shall also pay or cause to be paid all other sums payable hereunder by the
Company with respect to Securities of such series, then this Indenture shall cease to be of further
effect with respect to Securities of such series (except as to (1) rights of registration of
transfer and exchange of securities of such series, and the Companys right of optional redemption,
if any, (2) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of
Holders to receive payments of principal thereof and interest thereon, upon the original stated due
dates therefor (but not upon acceleration) and remaining rights of Holders to receive mandatory
sinking fund payments, if any, (4) the rights, obligations and immunities of the Trustee hereunder
and (5) the rights of Holders of such series as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them), and the Trustee, on demand of the
Company accompanied by an Officers Certificate and an Opinion of Counsel and at the cost and
expense of the Company, shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such series;
provided
, that the rights of Holders of the
Securities to receive amounts in respect of Principal of and interest on the Securities held by
them shall not be delayed longer than required by then-applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed. The Company agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection
with this Indenture or the Securities of such series.
Section 8.02
. Application by Trustee of Funds Deposited for Payment of Securities.
Subject
to Section 8.04, all moneys (including U.S. Government
47
Obligations and the proceeds thereof) deposited with the Trustee pursuant to Section 8.01,
8.05 or 8.06 shall be held in trust and applied by it to the payment, either directly or through
any paying agent to the Holders of the particular Securities of such series for the payment or
redemption of which such moneys have been deposited with the Trustee, of all sums due and to become
due thereon for Principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
Section 8.03
. Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction
and discharge of this Indenture with respect to Securities of any series, all moneys then held by
any paying agent under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
Section 8.04
. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years.
Any
moneys deposited with or paid to the Trustee or any paying agent for the payment of the Principal
of or interest on any Security of any series and not applied but remaining unclaimed for two years
after the date upon which such Principal or interest shall have become due and payable, shall, upon
the written request of the Company and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the Company by the Trustee
for such series or such paying agent, and the Holder of the Security of such series shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Company for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease.
Section 8.05
. Defeasance and Discharge of Indenture.
The Company shall be deemed to have
paid and shall be discharged from any and all obligations in respect of the Securities of any
series, on the 123rd day after the deposit referred to in clause (i) hereof has been made, and the
provisions of this Indenture shall no longer be in effect with respect to the Securities of such
series (and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except as to: (a) rights of registration of transfer and exchange, and the
Companys right of optional redemption, if any, (b) the substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (c) rights of Holders to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but not upon
acceleration) and remaining rights of Holders to receive mandatory sinking fund payments, if any,
(d) the rights, obligations and immunities of the Trustee hereunder and (e) the rights of Holders
of such series as beneficiaries hereof with respect to the property deposited with the Trustee
payable to all or any of them;
provided
that the following conditions shall have been satisfied:
48
(i) with reference to this provision the Company has deposited or caused to be
irrevocably deposited with the Trustee (or another qualifying trustee satisfying the
requirements of Section 7.11) as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Securities of such series,
(A) money in an amount, or (B) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will provide not
later than one day before the due date of any payment referred to in subclause (x) or (y)
of this clause (i) money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge without
consideration of the reinvestment of such interest and after payment of all federal, state
and local taxes or other charges and assessments in respect thereof payable by the Trustee
(x) the principal of, premium, if any, and each installment of interest on the outstanding
Securities of such series on the due dates thereof and (y) any mandatory sinking fund
payments or analogous payments applicable to the Securities of such series on the day on
which such payments are due and payable in accordance with the terms of Securities of such
series and the Indenture with respect to the Securities of such series;
(ii) the Company has delivered to the Trustee (A) either (x) an Opinion of Counsel to
the effect that Holders of Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of the Companys exercise of its option
under this Section 8.05 and will be subject to federal income tax on the same amount and
in the same manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred, which Opinion of Counsel must be based upon a
ruling of the Internal Revenue Service to the same effect or a change in applicable
federal income tax law or related treasury regulations after the date of this Indenture or
(y) a ruling directed to the Trustee received from the Internal Revenue Service to the
same effect as the aforementioned Opinion of Counsel and (B) an Opinion of Counsel to the
effect that the creation of the defeasance trust does not violate the Investment Company
Act of 1940 and after the passage of 123 days following the deposit, the trust fund will
not be subject to the effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of
the New York Debtor and Creditor Law;
(iii) immediately after giving effect to such deposit on a pro forma basis, no Event
of Default, or event that after the giving of notice or lapse of time or both would become
an Event of Default, shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such deposit, and such deposit
shall not result in a breach or violation of, or constitute a default
49
under any Guarantees or, any other agreement or instrument to which the Company is a
party or by which the Company is bound;
(iv) if at such time the Securities of such series are listed on a national
securities exchange, the Company has delivered to the Trustee an Opinion of Counsel to the
effect that the Securities of such series will not be delisted as a result of such
deposit, defeasance and discharge;
(v) the Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance and
discharge under this Section have been complied with; and
(vi) if the Securities of such series are to be redeemed prior to the final maturity
thereof (other than from mandatory sinking fund payments or analogous payments), notice of
such redemption shall have been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee shall have been made.
Section 8.06
. Defeasance of Certain Obligations.
The Company may omit to comply with any
term, provision or condition set forth in, and this Indenture will no longer be in effect with
respect to, any covenant established pursuant to Section 2.03(t) and clause (c) (with respect to
any covenants established pursuant to Section 2.03(s)) and clause (g) of Section 6.01 shall be
deemed not to be an Event of Default with respect to Securities of any series, if
(a) with reference to this Section 8.06, the Company has deposited or caused to be irrevocably
deposited with the Trustee (or another qualifying trustee satisfying the requirements of Section
7.11) as trust funds in trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series and the Indenture with respect to the
Securities of such series, (i) money in an amount or (ii) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance with their terms will
provide not later than one day before the due dates thereof or earlier redemption (irrevocably
provided for under agreements satisfactory to the Trustee), as the case may be, of any payment
referred to in subclause (x) or (y) of this clause (a) money in an amount, or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and
discharge without consideration of the reinvestment of such interest and after payment of all
federal, state and local taxes or other charges and assessments in respect thereof payable by the
Trustee (x) the principal of, premium, if any, and each installment of interest on the outstanding
Securities of such series on the due date thereof or earlier redemption (irrevocably provided for
under arrangements satisfactory to the Trustee), as the case may be, and (y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of such series and the Indenture
with respect to the Securities of such series on the day on which
50
such payments are due and payable in accordance with the terms of this Indenture and of
Securities of such series and the Indenture with respect to the Securities of such series;
(b) the Company has delivered to the Trustee (i) an Opinion of Counsel to the effect that
Holders of Securities of such series will not recognize income, gain or loss for federal income tax
purposes as a result of the Companys exercise of its option under this Section 8.06 and will be
subject to federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not occurred and (ii) an Opinion of
Counsel to the effect that the creation of the defeasance trust does not violate the Investment
Company Act of 1940 and after the passage of 123 days following the deposit, the trust fund will
not be subject to the effect of Section 547 of the U.S. Bankruptcy Code or Section 15 of the New
York Debtor and Creditor Law;
(c) immediately after giving effect to such deposit on a pro forma basis, no Event of Default,
or event that after the giving of notice or lapse of time or both would become an Event of Default,
shall have occurred and be continuing on the date of such deposit or during the period ending on
the 123rd day after the date of such deposit, and such deposit shall not result in a breach or
violation of, or constitute a default under any other agreement or instrument to which the Company
is a party or by which the Company is bound;
(d) if at such time the Securities of such series are listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of Counsel to the effect that the
Securities of such series will not be delisted as a result of such deposit, defeasance and
discharge; and
(e) the Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance under this Section have been
complied with.
Section 8.07
. Reinstatement.
If the Trustee or paying agent is unable to apply any monies or
U.S. Government Obligations in accordance with Article 8 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Companys obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred pursuant to this
Article until such time as the Trustee or paying agent is permitted to apply all such monies or
U.S. Government Obligations in accordance with Article 8;
provided
,
however
, that if the Company
has made any payment of Principal of or interest on any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the monies or U.S. Government Obligations held by the Trustee or paying
agent.
51
Section 8.08
. Indemnity.
The Company shall pay and indemnify the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.08 and Section 8.02, the Trustee)
against any tax, fee or other charge, imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.01, 8.05 or 8.06 or the principal or 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 Securities and any coupons appertaining thereto.
Section 8.09
. Excess Funds.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon written request of the Company,
any money or U.S. Government Obligations (or other property and any proceeds therefrom) held by it
as provided in Section 8.01, 8.05 or 8.06 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be deposited to effect
a discharge or defeasance, as applicable, in accordance with this Article 8.
Section 8.10
. Qualifying Trustee.
Any trustee appointed pursuant to Section 8.05 or 8.06 for
the purpose of holding money or U.S. Government Obligations deposited pursuant to such Sections
shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the
Trustee a certificate, upon which certificate the Trustee shall be entitled to conclusively rely,
that all conditions precedent provided for herein to the related defeasance have been complied
with. In no event shall the Trustee be liable for any acts or omissions of said trustee.
ARTICLE 9
Amendments, Supplements and Waivers
Section 9.01
. Without Consent of Holders.
The Company and the Trustee may amend or
supplement this Indenture or the Securities of any series without notice to or the consent of any
Holder:
(a) to cure any ambiguity, defect or inconsistency in this Indenture;
provided
that such
amendments or supplements shall not materially and adversely affect the interests of the Holders;
(b) to comply with Article 5;
(c) to comply with any requirements of the Commission in connection with the qualification of
this Indenture under the Trust Indenture Act;
(d) to evidence and provide for the acceptance of appointment hereunder with respect to the
Securities of any or all series by a successor Trustee and to add to or change any of the
provisions of this Indenture as shall be
52
necessary to provide for or facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 7.09;
(e) to establish the form or forms or terms of Securities of any series or of the coupons
appertaining to such Securities as permitted by Section 2.03;
(f) to provide for uncertificated or Unregistered Securities and to make all appropriate
changes for such purpose;
(g) to add any additional guarantors on the terms set forth in Article 10; and
(h) to make any change that does not materially and adversely affect the rights of any Holder.
Section 9.02
. With Consent of Holders.
Subject to Sections 6.04 and 6.07, without prior
notice to any Holders, the Company and the Trustee may amend this Indenture and the Securities of
any series with the written consent of the Holders of a majority in principal amount of the
outstanding Securities of each series affected by such amendment, and the Holders of a majority in
principal amount of the outstanding Securities of each series affected thereby by written notice to
the Trustee may waive future compliance by the Company with any provision of this Indenture or the
Securities of such series.
Notwithstanding the provisions of this Section 9.02, without the consent of each Holder
affected thereby, an amendment or waiver, including a waiver pursuant to Section 6.04, may not:
(a) change the stated maturity of the Principal of, or any sinking fund obligation or any
installment of interest on, such Holders Security or the times at which it may be redeemed or
repurchased;
(b) reduce the Principal amount thereof or the rate of interest thereon (including any amount
in respect of original issue discount);
(c) change the coin or currency in which any Security or any premium or interest thereon is
payable;
(d) impair the right to institute suit for the enforcement of any such payment on or after the
maturity thereof (or, in the case of redemption, on or after the redemption date);
(e) make any changes that would affect the ranking for the Securities in a manner adverse to
the Holders;
(f) reduce the above stated percentage of outstanding Securities the consent of whose holders
is necessary to modify or amend the Indenture with respect to the Securities of the relevant
series;
53
(g) reduce the percentage in principal amount of outstanding Securities of the relevant series
the consent of whose Holders is required for any supplemental indenture or for any waiver of
compliance with certain provisions of this Indenture or certain Defaults and their consequences
provided for in this Indenture;
(h) release any Guarantor from its Guarantee, except as provided in Section 10.09 or in the
terms (as set forth on the original issue date) of the series of Securities of such Holders
affected thereby; and
(i) make any changes to this paragraph of Section 9.02.
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 Holders of Securities of such series with respect to
such covenant or provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under this Section 9.02 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall give to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company will mail supplemental indentures to Holders upon request. Any
failure of the Company to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
Section 9.03
. Revocation and Effect of Consent.
Until an amendment or waiver becomes
effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to its Security or portion of its Security.
Such revocation shall be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver
shall become effective with respect to any Securities affected thereby on receipt by the Trustee of
written consents from the requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date (which may be not less than
five nor more than 60 days prior to the solicitation of consents) for the purpose of determining
the Holders of the Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the immediately preceding
paragraph,
54
those Persons who were such Holders at such record date (or their duly designated proxies) and
only those Persons shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue to be such Holders after
such record date. No such consent shall be valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver becomes effective with respect to the Securities of
any series affected thereby, it shall bind every Holder of such Securities unless it is of the type
described in any of clauses (a) through (i) of Section 9.02. In case of an amendment or waiver of
the type described in clauses (a) through (i) of Section 9.02, the amendment or waiver shall bind
each such Holder who has consented to it and every subsequent Holder of a Security that evidences
the same indebtedness as the Security of the consenting Holder.
Section 9.04
. Notation on or Exchange of Securities.
If an amendment, supplement or waiver
changes the terms of any Security, the Trustee may require the Holder thereof to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on any Security of such
series thereafter authenticated. 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
of the same series and tenor that reflects the changed terms.
Section 9.05
. Trustee to Sign Amendments, Etc.
The Trustee shall receive, and shall be fully
protected in conclusively relying upon, an (i) an Officers Certificate and (ii) an Opinion of Counsel.
The Opinion of Counsel shall state that the execution of any
amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by
this Indenture, that all requisite consents have been obtained or that no consents are
required and that such supplemental indenture constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, subject to
customary exceptions. The Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustees own rights, duties or immunities under this
Indenture or otherwise.
Section 9.06
. Conformity with Trust Indenture Act.
Every supplemental indenture executed
pursuant to this Article 9 shall conform to the requirements of the Trust Indenture Act as then in
effect.
ARTICLE 10
Guarantees
Section 10.01
. The Guarantees.
Subject to the provisions of this Article 10, each of the
Guarantors hereby irrevocably, jointly and severally, fully and unconditionally guarantees on an
unsecured and unsubordinated basis, the full and punctual payment (whether at stated maturity, upon
redemption, purchase
55
pursuant to an offer to purchase or acceleration, or otherwise) of the Principal of, premium,
if any, and interest on, and all other amounts payable under, each Security of any series, and the
full and punctual payment of all other amounts payable by the Company under this Indenture. Upon
failure by the Company to pay punctually any such amount, each Guarantor shall forthwith on demand
pay the amount not so paid at the place and in the manner specified in this Indenture.
Section 10.02
. Guarantees Unconditional, Etc.
The obligations of each of the Guarantors
hereunder are unconditional and absolute and, without limiting the generality of the foregoing,
will not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release in respect of any
obligation of the Company under this Indenture or any Security of any series, by operation of law
or otherwise;
(b) any modification or amendment of or supplement to this Indenture or any Security of any
series;
(c) any change in the corporate existence, structure or ownership of the Company, or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company or its
assets or any resulting release or discharge of any obligation of the Company contained in this
Indenture or any Security of any series;
(d) the existence of any claim, set-off or other rights which any Guarantor may have at any
time against the Company, the Trustee or any other Person, whether in connection with this
Indenture or any unrelated transactions,
provided
that nothing herein prevents the assertion of any
such claim by separate suit or compulsory counterclaim;
(e) any invalidity or unenforceability relating to or against the Company for any reason of
this Indenture or any Security of any series, or any provision of applicable law or regulation
purporting to prohibit the payment by the Company of the Principal of, premium, if any, or interest
on any Security of any series or any other amount payable by the Company under this Indenture; or
(f) any other act or omission to act or delay of any kind by the Company, the Trustee or any
other Person or any other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to such Guarantors obligations
hereunder.
Section 10.03
. Discharge; Reinstatement.
The Guarantors obligations hereunder will remain
in full force and effect until the Principal of, premium, if any, and interest on the Securities
and all other amounts payable by the Company under this Indenture have been paid in full. If at any
time any payment of the Principal of, premium, if any, or interest on any Security of any series or
any other amount payable by the Company under this Indenture is rescinded or must
56
be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the
Company or otherwise, the Guarantors obligations hereunder with respect to such payment will be
reinstated as though such payment had been due but not made at such time.
Section 10.04
. Waiver by the Guarantors.
Each Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as well as any
requirement that at any time any action be taken by any Person against the Company or any other
Person.
Section 10.05
. Subrogation and Contribution.
Upon making any payment with respect to any
obligation of the Company under this Article 10, any Guarantor making such payment will be
subrogated to the rights of the payee against the Company with respect to such obligation,
provided
that any such Guarantor may not enforce either any right of subrogation, or any right to receive
payment in the nature of contribution, or otherwise, from any other Person who guarantees the
Securities, with respect to such payment so long as any amount payable by the Company hereunder or
under the Securities remains unpaid.
Section 10.06
. Stay of Acceleration.
If acceleration of the time for payment of any amount
payable by the Company under this Indenture or the Securities is stayed upon the insolvency,
bankruptcy or reorganization of the Company, all such amounts otherwise subject to acceleration
under the terms of this Indenture are nonetheless payable by the Guarantors hereunder forthwith on
demand by the Trustee or the Holders.
Section 10.07.
Limitation on Amount of Guarantee
. Notwithstanding anything to the contrary
in this Article 10, each Guarantor, and by its acceptance of Securities, each Holder, hereby
confirms that it is the intention of all such parties that the Guarantees of such Guarantors not
constitute a fraudulent conveyance under applicable fraudulent conveyance provisions of the United
States Bankruptcy Code or any comparable provision of other U.S. and non-U.S. law. To effectuate
that intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of each Guarantor under its Guarantee are limited to the maximum amount that would not
render the Guarantors obligations subject to avoidance under applicable fraudulent conveyance
provisions of the United States Bankruptcy Code or any comparable provision of other U.S. and
non-U.S. law.
Section 10.08
. Execution and Delivery of Guarantees.
(a) The execution by each of the
Guarantors of this Indenture evidences each Guarantee of each such Guarantor, whether or not the
person signing as an Officer of each such Guarantor still holds that office at the time of
authentication of any Security of any series and (b) the delivery of any Security of any series by
the Trustee after authentication constitutes due delivery of the Guarantees as set forth in this
Indenture on behalf of the Guarantors, except in the case of clauses (a) and (b) as otherwise
provided by an indenture supplemental hereto with respect to any such
57
Security of any series executed and delivered to the Trustee in accordance with the provisions
of Article 9.
Section 10.09.
Release of Guarantee
. This Guarantee of a Guarantor will terminate:
(a) Upon a sale or other disposition (including by way of consolidation or merger) of the
Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in
each case other than to the Company or a Guarantor or a Person who, prior to such sale or other
disposition, is an affiliate of the Company or a Guarantor); or
(b) Upon defeasance or discharge of the Securities, as provided in Article 8.
Upon delivery by the Company to the Trustee of an Officers Certificate and an Opinion of
Counsel to the foregoing effect, the Trustee will execute any documents reasonably required in
order to evidence the release of the Guarantor from its obligations under its Guarantee.
Section 10.10.
Additional Guarantors
. If any Subsidiary of the Company shall become a
guarantor under the Bank Credit Agreement, then the Company shall promptly cause such Subsidiary to
become a Guarantor by causing such Subsidiary to execute and deliver an indenture supplemental
hereto to the Trustee in accordance with the provisions of Article 9, which such supplemental
indenture, pursuant to Section 10.08, shall evidence the Guarantee of such additional Guarantor
under this Indenture.
ARTICLE 11
Miscellaneous
Section 11.01
. Trust Indenture Act of 1939.
This Indenture shall incorporate and be governed
by the provisions of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act.
Section 11.02
. Notices.
Any notice or communication shall be sufficiently given if written
and (a) if delivered in person when received or (b) if mailed by first class mail 5 days after
mailing, or (c) as between the Company, any Guarantor and the Trustee if sent by facsimile
transmission, when transmission is confirmed, in each case addressed as follows:
if to the Company or to any Guarantor:
Verisk Analytics, Inc.
545 Washington Boulevard
58
Jersey City, NJ 07310-1686
Telecopy: (201) 748-1429
Attention: General Counsel
if to the Trustee:
Wells Fargo Bank, National Association
45 Broadway, 14
th
Floor
New York, NY 10006
Attention: Corporate Trust Services
The Company, the Guarantors or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication shall be sufficiently given to Holders of any Unregistered
Securities, by publication at least once in an Authorized Newspaper in The City of New York, or
with respect to any Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits at least once in an Authorized Newspaper in London,
and by mailing to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to
the Trustee and to Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Security Register. Notice mailed shall be sufficiently given if so
mailed within the time prescribed. Copies of any such communication or notice to a Holder shall
also be mailed to the Trustee and each Agent at the same time.
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. Except as otherwise provided in this Indenture, if a
notice or communication is mailed in the manner provided in this Section 11.02, it is duly given,
whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case it shall be impracticable to give notice as herein contemplated, then such
notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Section 11.03
. Certificate and Opinion as to Conditions Precedent.
Upon any request or
application by the Company or by any Guarantor to the Trustee to
59
take any action under this Indenture, the Company or any such Guarantor shall furnish to the
Trustee:
(a) an Officers Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Section 11.04
. Statements Required in Certificate or Opinion.
Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than
the certificate required by Section 4.04) shall include:
(a) a statement that each person signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon
which the statement or opinion contained in such certificate or opinion is based;
(c) a statement that, in the opinion of each such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each such person, such condition or
covenant has been complied with;
provided
,
however
, that, with respect to matters of fact, an
Opinion of Counsel may rely on an Officers Certificate or certificates of public officials.
Section 11.05
. Evidence of Ownership.
The Company, the Guarantors, the Trustee and any agent
of the Company, any Guarantor or the Trustee may deem and treat the Holder of any Unregistered
Security and the Holder of any coupon as the absolute owner of such Unregistered Security or coupon
(whether or not such Unregistered Security or coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes, and neither the Company, any
Guarantor, the Trustee, nor any agent of the Company, any Guarantor or the Trustee shall be
affected by any notice to the contrary. The fact of the holding by any Holder of an Unregistered
Security, and the identifying number of such Security and the date of his holding the same, may be
proved by the production of such Security or by a certificate executed by any trust company, bank,
banker or recognized securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such certificate shall be
dated and shall state that on the date thereof a Security bearing a specified identifying number
was deposited with or exhibited to such trust company, bank, banker or recognized securities dealer
by the person named
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in such certificate. Any such certificate may be issued in respect of one or more
Unregistered Securities specified therein. The holding by the person named in any such certificate
of any Unregistered Securities specified therein shall be presumed to continue for a period of one
year from the date of such certificate unless at the time of any determination of such holding (1)
another certificate bearing a later date issued in respect of the same Securities shall be produced
or (2) the Security specified in such certificate shall be produced by some other Person, or (3)
the Security specified in such certificate shall have ceased to be outstanding. Subject to Article
7, the fact and date of the execution of any such instrument and the amount and numbers of
Securities held by the Person so executing such instrument may also be proven in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in any other manner
which the Trustee may deem sufficient.
The Company, the Guarantors, the Trustee and any agent of the Company, any Guarantor or the
Trustee may deem and treat the person in whose name any Registered Security shall be registered
upon the Security Register for such series as the absolute owner of such Registered Security
(whether or not such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture, interest on such Registered Security
and for all other purposes; and neither the Company, any Guarantor nor the Trustee nor any agent of
the Company, any Guarantor or the Trustee shall be affected by any notice to the contrary.
Section 11.06
. Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make reasonable
rules for its functions.
Section 11.07
. Payment Date Other Than a Business Day.
Except as otherwise provided with
respect to a series of Securities, if any date for payment of Principal or interest on any Security
shall not be a Business Day at any place of payment, then payment of Principal of or interest on
such Security, as the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect as if made on such
date and no interest shall accrue in respect of such payment for the period from and after such
date.
Section 11.08
. Governing Law; Waiver of Jury Trial.
The laws of the State of New York shall
govern this Indenture and the Securities, without regard to conflicts of laws principles thereof.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
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Section 11.09
. No Adverse Interpretation of Other Agreements.
This Indenture may not be used
to interpret another indenture or loan or debt agreement of the Company or any Subsidiary of the
Company. Any such indenture or agreement may not be used to interpret this Indenture.
Section 11.10
. Successors.
All agreements of the Company and the Guarantors in this
Indenture, the Securities and the Guarantees, as applicable, shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its successors.
Section 11.11
. Duplicate 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. The exchange of copies of this Indenture and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of this Indenture as to the parties
hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the
parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for
all purposes.
Section 11.12
. Separability.
In case any provision in this Indenture, in the Securities or
in the Guarantees shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 11.13
. Table of Contents, Headings, Etc.
The Table of Contents and headings of the
Articles and Sections of this Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.
Section 11.14
. Incorporators, Stockholders, Officers and Directors of Company Exempt From
Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained in
this Indenture or any indenture supplemental hereto, or in any Security or any coupons appertaining
thereto or in any Guarantee, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder, officer, director or
employee, as such, of the Company or any Guarantor or of any successor thereof, either directly or
through the Company or any Guarantor or of any successor thereof, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released by the acceptance
of the Securities and the coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining thereto.
Section 11.15
. Judgment Currency.
Each of the Company and the Guarantors agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of
obtaining judgment in any court it is
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necessary to convert the sum due in respect of the Principal of or interest on the Securities
of any series (the
Required Currency
) into a currency in which a judgment will be rendered (the
Judgment Currency
), the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of New York the Required Currency
with the Judgment Currency on the day on which final unappealable judgment is entered, unless such
day is not a Business Day, then, to the extent permitted by applicable law, the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment Currency on the Business
Day preceding the day on which final unappealable judgment is entered and (b) its obligations under
this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as
an alternative or additional cause of action for the purpose of recovering in the Required Currency
the amount, if any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture.
Section 11.16
. Force Majeure.
In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
Section 11.17
. U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance with
Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to
help fight the funding of terrorism and money laundering, is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a relationship or opens an
account with the Trustee. The parties to this Indenture agree that they will provide the Trustee
with such information as it may request in order for the Trustee to satisfy the requirements of the
U.S.A. Patriot Act.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the date first written above.
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Attest:
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VERISK ANALYTICS, INC., as the Company
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Executive Vice
President,
General Counsel and
Corporate Secretary
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Attest:
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INSURANCE SERVICES OFFICE, INC., as Guarantor
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Executive Vice
President,
General Counsel and
Corporate Secretary
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Attest:
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ISO STAFF SERVICES, INC., as Guarantor
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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Attest:
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XACTWARE SOLUTIONS, INC., as Guarantor
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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S-1
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Attest:
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ISO SERVICES, INC., as Guarantor
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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Attest:
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ISO CLAIMS SERVICES, INC., as Guarantor
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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Attest:
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AIR WORLDWIDE CORPORATION, as Guarantor
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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Attest:
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INTERTHINX, INC., as Guarantor
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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S-2
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Attest:
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VERISK HEALTH, INC., as Guarantor
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Vice President, General
Counsel
and Secretary
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Attest:
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D2HAWKEYE, INC., as Guarantor
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Senior Vice President, General
Counsel
and Secretary
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S-3
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as
the Trustee
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By:
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/s/ Raymond Delli Colli
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Name:
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Raymond Delli Colli
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Title:
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Vice President
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S-4
Exhibit 4.2
Execution
Version
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 6, 2011
To
INDENTURE
Dated as of April 6, 2011
5.800% SENIOR NOTES DUE 2021
VERISK ANALYTICS, INC.
As the Company
INSURANCE SERVICES OFFICE, INC.
ISO STAFF SERVICES, INC.
ISO CLAIMS SERVICES, INC.
AIR WORLDWIDE CORPORATION
ISO SERVICES, INC.
XACTWARE SOLUTIONS, INC.
VERISK HEALTH, INC.
INTERTHINX, INC.
D2HAWKEYE, INC.
Together with Such Other Guarantors as may be Added from Time to Time
As Guarantors
WELLS FARGO BANK, NATIONAL ASSOCIATION
As Trustee
TABLE OF CONTENTS
ARTICLE I
Definitions and Incorporation
by Reference
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|
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Section 1.01
Relationship with Base Indenture
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1
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Section 1.02
Definitions
|
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2
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ARTICLE II
The Notes
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Section 2.01
Form and Dating
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7
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Section 2.02
Issuance of Additional Notes
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9
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ARTICLE III
Redemption and Prepayment
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Section 3.01
Notice of Redemption; Selection of Securities
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9
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Section 3.02
Notes Redeemed in Part
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9
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Section 3.03
Optional Redemption
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9
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Section 3.04
Mandatory Redemption
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10
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ARTICLE IV
Particular Covenants
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Section 4.01
Limitation on Liens
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10
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Section 4.02
Limitation on Sale/Leaseback Transactions
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11
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Section 4.03
Offer to Purchase Upon Change of Control Repurchase Event
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12
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ARTICLE V
Defaults
ARTICLE VI
Guarantees
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Section 6.01
Guarantees of the Notes
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14
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Section 6.02
Effect of Guarantees; Guarantors to be bound by Indenture
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14
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Section 6.03
Execution and Delivery of the Guarantees
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15
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i
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Section 6.04
Termination of Guarantees
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15
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ARTICLE VII
Miscellaneous
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Section 7.01
Trust Indenture Act Controls
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15
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Section 7.02
Governing Law
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15
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Section 7.03
Successors
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15
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Section 7.04
Severability
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15
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Section 7.05
Counterpart Originals
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15
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Section 7.06
Table of Contents, Headings, Etc
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16
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Section 7.07
Validity or Sufficiency of Supplemental Indenture
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16
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Section 7.08
Waiver of Jury Trial
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16
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ii
FIRST SUPPLEMENTAL INDENTURE (this
Supplemental Indenture
), dated as of April 6, 2011,
among Verisk Analytics, Inc., a Delaware corporation, as the Company (the
Company
), Insurance
Services Office, Inc., a Delaware corporation (
ISO
), ISO Staff Services, Inc., a Delaware
corporation, Xactware Solutions, Inc., a Delaware corporation, ISO Services, Inc., a Delaware
corporation, ISO Claims Services, Inc., a Delaware corporation, AIR Worldwide Corporation, a
Delaware corporation, Interthinx, Inc., a California corporation, Verisk Health, Inc., a
Massachusetts corporation, and D2Hawkeye, Inc., a Delaware corporation, together with such other
guarantors as may be added from time to time (each a
Guarantor
and collectively, the
Guarantors
) and Wells Fargo Bank, National Association, a national banking association, as
Trustee (the
Trustee
).
WHEREAS, the Company and the Guarantors have heretofore executed and delivered to the Trustee
an indenture dated as of April 6, 2011 (the
Base
Indenture
), providing for the issuance from time
to time of one or more series of the Companys senior notes and guarantees thereof by the
Guarantors.
WHEREAS, the Company and the Guarantors desire and have requested the Trustee pursuant to
Section 9.01 of the Base Indenture to join with it in the execution and delivery of this
Supplemental Indenture in order to supplement the Base Indenture as and to the extent set forth
herein to provide for the issuance and the terms of the Notes (as defined below).
WHEREAS, the execution and delivery of this Supplemental Indenture has been duly authorized by
a resolution of the Finance and Investment Committee, a duly authorized committee of the Board of
Directors of the Company and ISO, and by resolutions of the Board of Directors of each other
Guarantor.
WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a
valid, binding and legal instrument in accordance with its terms have been performed and fulfilled
by the parties hereto and the execution and delivery thereof have been in all respects duly
authorized by the parties hereto.
NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders (as defined herein) of the
5.800% Senior Notes due 2021 (the
Notes
):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01
Relationship with Base Indenture
. The terms and provisions contained in the
Base Indenture will constitute, and are hereby expressly made, a part of this Supplemental
Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this
Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of the Base Indenture conflicts with the express
provisions of this Supplemental Indenture, the provisions of this Supplemental Indenture will
govern and be controlling in respect of the Notes.
The Trustee accepts the amendment of the Base Indenture effected by this Supplemental
Indenture and agrees to execute the trust created by the Base Indenture as hereby amended, but only
upon the terms and conditions set forth in this Supplemental Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the Trustee in the
performance of the trust created by the Base Indenture.
Section 1.02
Definitions
. Capitalized terms used herein without definition shall have the
respective meanings set forth in the Base Indenture. The following terms have the meanings given to
them in this Section 1.02:
Additional Notes
has the meaning assigned to such term in Section 2.02 hereof.
Attributable Debt
means, when used in connection with a Sale/Leaseback Transaction, at the
time of determination, the lesser of:
(1) the fair value of such property (as determined in good faith by the Board of Directors of
the Company), and
(2) the present value of the total net amount of rent required to be paid under the lease
related to such property during the remaining term thereof (including any renewal term or period
for which such lease has been extended), discounted at the rate of interest set forth or implicit
in the terms of such lease, compounded semi-annually as determined by the Companys principal
accounting or financial officer.
Base Indenture
has the meaning set forth in the preamble to this Supplemental Indenture, as
amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.
Business Day
means any day that is not a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York.
Change of Control
means the occurrence of any one or more of the following events:
(1) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any Person or group of related Persons (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that such Person or group shall be deemed to have beneficial ownership of all shares that
any such Person or group has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 50% of the total voting power
of the Companys Voting Stock (for the purposes of this clause, such Person or group shall be
deemed to beneficially own any of the Companys Voting Stock held by a parent entity if such Person
or group is the beneficial owner, directly or indirectly, of a majority of the voting power of
the Voting Stock of such parent entity);
2
(2) the Company consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merge with or into the Company, in any such event pursuant to a transaction
in which any the Companys outstanding Voting Stock or the outstanding Voting
Stock of such other Person is converted into or exchanged for cash, securities or other
property, other than any such transaction where the shares of the Companys Voting Stock
outstanding immediately prior to such transaction constitute, or are converted into or exchanged
for, a majority of the Voting Stock of the surviving Person immediately after giving effect to such
transaction;
(3) the first day on which a majority of the members of the Companys Board of Directors, as
applicable, cease to be Continuing Directors;
(4) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the Companys assets and the assets of the Companys subsidiaries taken as a
whole to any Person (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934) other than to the Company or one of its subsidiaries; or
(5) the adoption by the Companys stockholders of a plan or proposal for the Companys
liquidation or dissolution.
Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control if
(a) the Company becomes a direct or indirect wholly-owned subsidiary of a holding company and (b)
immediately following that transaction, (1) the direct or indirect holders of the Voting Stock of
the holding company are substantially the same as the holders of the Companys Voting Stock
immediately prior to that transaction or (2) no Person or group is the beneficial owner, directly
or indirectly, of more than a majority of the Voting Stock of the holding company.
Change of Control Offer
has the meaning assigned to such term in Section 4.03 hereof.
Change of Control Payment
has the meaning assigned to such term in Section 4.03 hereof.
Change of Control Payment Date
has the meaning assigned to such term in Section 4.03 hereof.
Change of Control Purchase Price
has the meaning assigned to such term in Section 4.03
hereof.
Change of Control Repurchase Event
means the occurrence of both a Change of Control and a
Rating Decline.
Common Stock
of any Person means any and all shares, interests or other participations in,
and other equivalents (however designated and whether voting or non-voting) of, such Persons
common stock, and includes, without limitation, all series and classes of such Common Stock.
3
Comparable Treasury Issue
means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to
be redeemed that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes.
Comparable Treasury Price
means, with respect to any date of redemption, the Reference
Treasury Dealer Quotations for that date of redemption.
Consolidated Total Assets
means the total assets of the Company and its consolidated
subsidiaries, as set forth on the Companys most recent consolidated balance sheet, as determined
by GAAP.
Continuing Director
means, as of any date of determination, any member of the Companys
Board of Directors who (a) was a member of the Companys Board of Directors on the date of this
Supplemental Indenture or (b) was nominated for election or elected to the Companys board of
directors with the approval of a majority of the Continuing Directors who were members of the
Companys Board of Directors at the time of such nomination or election (either by a specific vote
or by approval of the Companys proxy statement in which such member was named as a nominee for
election as a director, without objection to such nomination).
default
means any event that is, or after notice or passage of time or both would be, an
Event of Default under the Indenture.
Depositary
means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.01 hereof as the Depositary with respect to the Notes, and
any and all successors thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Supplemental Indenture.
DTC
has the meaning assigned to such term in Section 2.01 hereof.
Fitch
means Fitch Inc., a subsidiary of Fimalac, S.A., and its successors.
GAAP
means with respect to any computations required or permitted under the Indenture,
generally accepted accounting principles in effect in the United Sates as in effect from time to
time;
provided
,
however
if the Company is required by the SEC to adopt (or is permitted to adopt
and so adopts) a different accounting framework, including but not limited to the International
Financial Reporting Standards, GAAP shall mean such new accounting framework as in effect from
time to time, including, without limitation, in each case, those accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved by a significant
segment of the accounting profession.
Global Note Legend
means the legend set forth in Section 2.01(e) hereof, which is required
to be placed on all Global Notes issued under this Supplemental Indenture.
4
Global Notes
means, individually and collectively, each of the Global Notes, in the form of
Exhibit A hereto issued in accordance with Section 2.01 hereof.
Guarantor
means the Persons named as Guarantors in the first paragraph of this Indenture
and any additional Persons added as guarantors pursuant to Section 6.03 hereof, until a successor
replaces any such Guarantor and, thereafter, Guarantors shall mean the Guarantors not so replaced
together with any such successors.
Holder
means a Person in whose name a Note is registered.
Indenture
means the Base Indenture, as supplemented by this Supplemental Indenture,
governing the Notes, together, as amended, supplemented or restated from time to time.
Independent Investment Banker
means the Reference Treasury Dealer appointed by the Company.
Indirect Participant
means a Person who holds a beneficial interest in a Global Note through
a Participant.
Initial Notes
means the first $450,000,000 aggregate principal amount of Notes issued under
this Supplemental Indenture on the date hereof.
Investment Grade
means BBB- or higher by S&P and Baa3 or higher by Moodys, BBB- or higher
by Fitch and BBB- or the equivalent of such ratings by S&P, Fitch or Moodys, if S&P, Fitch or
Moodys shall not make a rating on the Notes publicly available, another Rating Agency.
ISO
has the meaning assigned to it in the preamble to this Supplemental Indenture.
Lien
means a mortgage, security interest, pledge, lien, charge or other encumbrance.
Moodys
means Moodys Investors Service, Inc., a subsidiary of Moodys Corporation, and its
successors.
Notes
has the meaning assigned to it in the preamble to this Supplemental Indenture.
Participant
means, with respect to the Depositary, a Person who has an account with the
Depositary.
Permitted Liens
has the meaning assigned to it in Section 4.01 hereof.
Permitted Subsidiary Acquisition Indebtedness
means indebtedness of any subsidiary of the
Company which is:
(a) owed by any Person at the time (i) such Person becomes a subsidiary of or is merged with
or into the Company or a subsidiary of the Company or (ii) a subsidiary acquires any property from
such Person and which indebtedness is expressly assumed by such subsidiary at the time of such
acquisition; provided that (A) such indebtedness was not created, incurred, or
5
assumed by such Person or such subsidiary in contemplation of such acquisition, (B) in the
event such indebtedness shall be guaranteed, such guarantee shall be unsecured and shall be given
by ISO and/or the Company, and (C) the principal amount of such indebtedness shall not be
increased at any time after it is first acquired or assumed, as applicable, or
(b) incurred by such subsidiary to finance or to refinance such acquisition; provided that (i)
such indebtedness shall be incurred substantially simultaneously with the consummation of such
acquisition, (ii) the principal amount of such indebtedness incurred in connection with such
acquisition shall not be increased at any time after it is first incurred, (iii) the principal
amount of such indebtedness (together with any accrued interest thereon and closing costs relating
thereto) shall at no time exceed one hundred percent (100%) of the original purchase price of such
acquisition, and (iv) in the event such indebtedness shall be guaranteed, such guarantee shall be
unsecured and shall be given by ISO and/or the Company.
Property
means any property or asset, whether real, personal or mixed, or tangible or
intangible, including shares of capital stock.
Rating Agency
means each of S&P, Fitch and Moodys or, to the extent S&P, Fitch or Moodys
do not make a rating on the Notes publicly available, a nationally recognized statistical rating
organization (as such term is defined in Rule 15c3-1(c)(2)(vi)(F) of the Exchange Act) or
organizations, as the case may be, selected by the Company (as certified by a resolution of the
Companys board of directors), which shall be substituted for S&P, Fitch or Moodys, as the case
may be.
Rating Decline
means the Notes are rated below Investment Grade by all of the Rating
Agencies on any date during the period from the date 60 days prior to the first public notice of an
arrangement that could result in a Change of Control until the end of the 60 day period following
the consummation of such Change of Control (which period will be extended following the
consummation of such Change of Control for so long as any Rating Agency has publicly announced that
it is considering a possible downgrade in its rating of the Notes).
Reference Treasury Dealer
means each of J.P. Morgan Securities LLC and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and their respective successors and two other nationally
recognized investment banking firms that are primary U.S. Government securities dealers specified
from time to time by the Company so long as the entity is a primary U.S. Government securities
dealer.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer
and any date of redemption, the average, as determined by the Company, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding that date of redemption, after excluding the highest and
lowest of such quotations, unless the Company obtains fewer than four such quotations, in which
case the average of all of such quotations.
Remaining Scheduled Payments
means, with respect to each Note to be redeemed,
the remaining scheduled payments of the principal thereof and interest thereon that would be
due
6
after the related date of redemption therefor;
provided
,
however
, that, if that date of
redemption is not an interest payment date with respect to such Note, the amount of the next
succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon
to that date of redemption.
S&P
means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and its successors.
Sale/Leaseback Transaction
means an arrangement relating to property now owned or hereafter
acquired whereby either the Company transfers, or any of its subsidiaries transfers, such property
to a Person and either the Company or any of its subsidiaries leases it back from such Person.
subsidiary
means, with respect to any Person, any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of shares of capital stock
or other interests (including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more
subsidiaries of such Person or (c) one or more subsidiaries of such Person.
Supplemental Indenture
means this First Supplemental Indenture, dated as of the date hereof,
by and among the Company, the Guarantors and the Trustee, governing the Notes, as amended,
supplemented or otherwise modified from time to time in accordance with the Base Indenture and the
terms hereof.
Treasury Rate
means, with respect to any date of redemption, the rate per annum equal to the
semi-annual equivalent yield to maturity, computed as of the third Business Day immediately
preceding that date of redemption, of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for that date of redemption.
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 generally in the election of the board of directors of such
Person. With respect to the Company, references to Voting Stock shall refer to the Companys
Class A Common Stock and Class B Common Stock, in each case par value $0.001 per share, taken
together as a single class.
ARTICLE II
THE NOTES
Section 2.01
Form and Dating
. (a) The Notes and the Trustees certificate of authentication
included thereon will be substantially in the form of
Exhibit A
hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be
dated the date of its authentication. The Notes will initially be issued in the form of one or more
Registered Global Securities, without coupons, in minimum denominations of $2,000 with integral
multiples of $1,000 in excess thereof.
7
The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Supplemental Indenture, and the Company, the Guarantors and the Trustee,
by their execution and delivery of this Supplemental Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of this Supplemental
Indenture or any Note conflicts with the express provisions of the Base Indenture, the provisions
of this Supplemental Indenture or the Notes, as the case may be, will govern and be controlling.
(b) Notes issued in global form will be substantially in the form of
Exhibit A
attached hereto (including the Global Note Legend thereon). Each Global Note will represent such of
the outstanding Notes as will be specified therein and each will provide that it will represent the
aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the custodian of the Notes, at
the direction of the Trustee, in accordance with written instructions given by the Holder thereof
as required by Section 2.02 hereof. The Company initially appoints The Depository Trust Company
(
DTC
) to act as Depositary with respect to the Global Notes.
(c) The Notes shall not be exchangeable for nor convertible into the common stock of the
Company or any other security.
(d) The Company will not pay additional amounts on Notes held by a person who is not a U.S.
person in respect of any tax, assessment or governmental charge withheld or deducted.
(e) The following legends will appear on the face of all Global Notes issued under this
Supplemental Indenture.
THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH
MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
8
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Section 2.02
Issuance of Additional Notes
. The Company will be entitled, upon delivery of an Officers
Certificate and an Opinion of Counsel, to issue Additional Notes under this Supplemental Indenture
which will have identical terms as the Initial Notes issued on the date hereof, other than with
respect to the date of issuance, the issue price and, in some cases, the first interest payment
date (
Additional Notes
), provided that the Company and the Guarantors are in compliance with the
covenants contained in this Supplemental Indenture and the Base Indenture. The Initial Notes issued
on the date hereof and any Additional Notes issued will be treated as a single class for all
purposes under this Supplemental Indenture.
With respect to any Additional Notes, the Company will set forth in a resolution of its Board
of Directors and an Officers Certificate, a copy of each which will be delivered to the Trustee,
the following information:
(a) the aggregate principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Supplemental Indenture; and
(b) the issue price, the issue date, the initial interest payment date and the CUSIP number of
such Additional Notes.
ARTICLE III
REDEMPTION AND PREPAYMENT
Section 3.01
Notice of Redemption; Selection of Securities
. The Company will send by first class mail
notice of any redemption at least 30 days but not more than 60 days before the date of redemption
to each Holder of the Notes to be redeemed setting forth the information to be stated in such
notice as provided in Article 3 of the Base Indenture. If less than all of the Notes are to be
redeemed, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee
deems to be fair and appropriate and in accordance with the procedures of the Depositary.
Section 3.02
Notes Redeemed in Part
. No Notes of principal amount of $2,000 or less may be redeemed in
part.
Section 3.03
Optional Redemption
. The Company may, at its option, on any one or more occasions, redeem,
in whole or in part, at a redemption price equal to the greater of the following amounts, plus, in
each case, accrued and unpaid interest, if any, on the principal amount of the Notes being redeemed
to, but excluding, the date of redemption (subject to the right of the holders of record on the
relevant record date to receive interest due on the relevant interest payment date):
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(i) 100% of the principal amount of the Notes to be redeemed; and
(ii) the sum of the present values of the Remaining Scheduled Payments (as defined below) of
the Notes to be redeemed, discounted to the date of redemption on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 40
basis points,
provided that
the principal amount of a Note remaining outstanding after redemption
in part will be $2,000 or an integral multiple of $1,000 in excess thereof.
If the date of redemption is on or after an interest record date and on or before the related
interest payment date, the accrued and unpaid interest, if any, will be paid to the Person in whose
name the Note is registered at the close of business on such interest record date, and no
additional interest will be payable to Holders whose Notes will be subject to redemption by the
Company. Unless the Company defaults in payment of the redemption price, on and after the date of
redemption, interest shall cease to accrue on the Notes or the portions thereof called for
redemption.
Section 3.04
Mandatory Redemption
. The Company is not required to make any mandatory redemption or
sinking fund payments with respect to the Notes.
ARTICLE IV
PARTICULAR COVENANTS
Section 4.01
Limitation on Liens
. (a) The Company will not, and will not permit any of its subsidiaries
to create, assume, incur or permit to exist any Lien on any of its or such subsidiaries property
or assets, whether owned on the date of issuance of the Notes or thereafter acquired, or upon any
income or profits therefrom, in order to secure any of its indebtedness or that of its
subsidiaries, unless the Notes are at least equally and ratably secured with such secured
indebtedness (together with, if the Company so determines, any other Indebtedness of or guaranty by
the Company or such subsidiary then existing or thereafter created that is not subordinated to the
Notes) for so long as such other indebtedness is so secured;
provided
,
however
, that the above
restrictions shall not apply to the following (the
Permitted Liens
):
(i) Liens on property or other assets of any Person existing at the time such Person
becomes a subsidiary,
provided that
such Lien was not incurred in anticipation of such
Person becoming a subsidiary;
(ii) Liens in respect of Permitted Subsidiary Acquisition Indebtedness; provided that
(i) each such Lien (A) shall be created substantially simultaneously with the acquisition of
the related property or properties or (B) shall have existed on any property of a Person (1)
at the time such Person becomes a subsidiary of or is merged with or into the Company or its
subsidiary or (2) at the time a subsidiary acquires such property from such Person, and, in
the case of each of the foregoing clauses (1) and (2), such Lien shall not have been created
in contemplation of such acquisition, and (ii) no such Lien at any time shall encumber any
property or properties other than the related property or properties financed by such
Permitted Subsidiary Acquisition Indebtedness and the proceeds thereof;
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(iii) Liens on property or assets to secure any indebtedness incurred prior to, at the
time of, or within 270 days after, the acquisition of such property or in the case of real
property, the completion of construction, the completion of improvements or the beginning of
substantial commercial operation of such real property for the purpose of financing all or
any part of the purchase price of such real property, the construction thereof or the making
of improvements thereto;
(iv) Liens in the Companys favor or in favor of any Guarantor of the Notes;
(v) Liens existing on the date of issuance of the Notes;
(vi) Liens on property or other assets of a Person existing at the time the Person is
merged into or consolidated with the Company or any of its subsidiaries or at the time of a
sale, lease or other disposition of the properties of a Person as an entirety or
substantially as an entirety to either the Company or any of its subsidiaries
provided that
such Lien was not incurred in anticipation of the merger or consolidation or sale, lease or
other disposition;
(vii) extensions, renewals or replacements (or successive extensions, renewals or
replacements) in whole or in part of any Lien referred to above without increase of the
principal of the indebtedness (plus any premium or fee payable in connection with any such
extension, renewal or replacement) secured by the Lien;
provided
,
however
, that any
Permitted Liens shall not extend to or cover any of the Companys or its subsidiaries
property, as the case may be, other than the property specified in the foregoing clauses and
improvements to this property; and
(viii) Liens arising in connection with trade letters of credit issued for the
Companys account or the account of a subsidiary securing the reimbursement obligations in
respect of such letters of credit, provided, that such Liens encumber only the property
being acquired through payments made under such letters of credit or the documents of title
and shipping and insurance documents relating to such property.
(b) Notwithstanding Section 4.01(a), the Company and any of its subsidiaries may create,
assume, incur or guarantee indebtedness secured by a Lien without equally and ratably securing the
Notes;
provided that
at the time of such creation, assumption, incurrence or guarantee, after
giving effect thereto and to the retirement of any indebtedness that is concurrently being retired,
the sum of (a) the aggregate amount of all outstanding indebtedness secured by Liens other than
Permitted Liens, and (b) the Attributable Debt of all of the Companys and its subsidiaries
Sale/Leaseback Transactions permitted by Section 4.02(b)(v) does not at such time exceed 7.5% of
Consolidated Total Assets.
Section 4.02
Limitation on Sale/Leaseback Transactions
. (a) The Company will not, and will not permit
any of its subsidiaries to, enter into any Sale/Leaseback Transaction with respect to any real or
personal property, whether now owned or hereafter acquired by the Company or any of its
subsidiaries, unless:
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(i) The Company or such subsidiary would, at the time of entering into such
arrangement, be able to incur indebtedness secured by a Lien on the property involved in the
transaction at least equal in amount to the Attributable Debt with respect to such
Sale/Leaseback Transaction, without equally and ratably securing the Notes under Section
4.01 above; or
(ii) the net proceeds of the sale of the property to be leased are at least equal to
such propertys fair market value, as determined by the Companys Board of Directors, and
the proceeds are applied within 270 days of the effective date of the Sale/Leaseback
Transaction to the purchase, construction, development or acquisition of assets or to the
repayment of any of the Companys indebtedness that ranks equally with the Notes or any
indebtedness of the Companys subsidiaries.
(b) Notwithstanding Section 4.02(a), the Company shall be permitted to enter to Sale/Leaseback
Transactions, without complying with the requirements of Section 4.02(a) above, if:
(i) the Sale/Leaseback Transaction was entered into prior to the date of issuance of
the Notes;
(ii) the Sale/Leaseback Transaction is between the Company and any wholly-owned
subsidiary of the Company, or between wholly-owned subsidiaries of the Company;
(iii) the Sale/Leaseback Transaction involves leases for a period of no longer than
three years;
(iv) the Sale/Leaseback Transaction is one in which the lease for the property or asset
is entered into within 180 days after the date of acquisition, completion of construction or
commencement of full operations of such property or asset, whichever is latest; or
(v) after giving effect thereto, the aggregate amount of all Attributable Debt with
respect to Sale/Leaseback Transactions existing at such time that could not have been
entered into except for the provisions described in this paragraph, together with the
aggregate amount of all outstanding indebtedness secured by Liens permitted under Section
4.01(b) above, does not exceed 7.5% of Consolidated Total Assets.
Section 4.03
Offer to Purchase Upon Change of Control Repurchase Event
. (a) Upon the occurrence of a
Change of Control Repurchase Event, each Holder shall have the right to require the Company to
purchase such Holders Notes in whole or in part (equal to $2,000 or an integral multiple of $1,000
in excess thereof) at a purchase price (the
Change of Control Purchase Price
) equal to 101% of
the principal amount of such Notes, plus accrued and unpaid interest, if any, to the date of
repurchase (subject to the rights of Holders of record on the relevant interest record date to
receive interest due on the relevant interest payment date), pursuant to and in accordance with the
offer described in this Section 4.03, provided that after giving effect to the purchase, any Notes
that remain outstanding shall have a denomination of $2,000 or integral multiples of $1,000 in
excess thereof.
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(b) Within 30 days following any Change of Control Repurchase Event, unless the Company has
exercised its right to redeem all of the Notes pursuant to Section 3.03 hereof, the Company shall
send by first class mail a notice (the
Change of Control Offer
) to each Holder, with a copy to
the Trustee, which notice shall state:
(i) that such Change of Control Repurchase Event has occurred and that such Holder has
the right to require the Company to repurchase such Holders Notes at a purchase price in
cash equal to 101% of the principal amount of the Notes plus accrued and unpaid interest, if
any, to the date of repurchase (subject to the rights of Holders of records on the relevant
interest record date to receive interest due on the relevant interest payment date) (the
Change of Control Payment
);
(ii) the Change of Control Purchase Price and the Change of Control Purchase Date,
which shall be a Business Day that is no earlier than 30 days nor later than 60 days from
the date such notice is sent, other than as may be required by law (the
Change of Control
Payment Date
);
(iii) the procedures determined by the Company, consistent with the Indenture, that a
Holder must follow in order to have its Notes repurchased; and
(iv) if the notice is mailed prior to the date of consummation of the Change of
Control, that the Change of Control Offer is conditioned upon the Change of Control being
consummated on or prior to the Change of Control Payment Date.
(c) On the Change of Control Payment Date, the Company shall, to the extent lawful, accept for
payment, all Notes or portions thereof validly tendered and not withdrawn pursuant to the Change of
Control Offer, and shall deposit with the Paying Agent an amount equal to the Change of Control
Payment in respect of all Notes or portions of Notes so tendered. The Company shall also deliver or
cause to be delivered to the Trustee the Notes so accepted together with an Officers Certificate
stating the aggregate principal amount of Notes or portions of Notes being repurchased by the
Company. The Paying Agent shall promptly mail to each tendering Holder the Change of Control
Payment for the Notes tendered by such Holder and accepted by the Company for purchase, and the
Trustee, upon receipt of a Company Order, shall promptly authenticate and mail (or cause to be
transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Note surrendered, if any, provided that each such new Note shall be in a principal
amount of $2,000 and integral multiples of $1,000 in excess thereof.
(d) If the Change of Control Payment Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest, if any, shall be paid to
the Person in whose name a Note is registered at the close of business on such interest record
date, and no additional interest will be payable to Holders who tender pursuant to the Change of
Control Offer.
(e) Holders of Notes electing to have Notes purchased pursuant to a Change of Control Offer
will be required to surrender their Notes, with the form entitled Option of Holder to Elect
Purchase on the reverse of the Note completed, to the Paying Agent at the
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address specified in the notice, or transfer their Notes to the Paying Agent by book-entry
transfer pursuant to the applicable procedures of the Paying Agent, prior to the close of business
on the third Business Day prior to the Change of Control Payment Date.
(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act in
connection with the repurchase of Notes pursuant to a Change of Control Offer hereunder. To the
extent the provisions of any securities laws or regulations conflict with the provisions of the
Indenture, the Company shall comply with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations under the Indenture by virtue of such conflict.
(g) The Company shall not be required to make a Change of Control Offer if a third party makes
such an offer in the manner and at the times required and otherwise in compliance with the
requirements for such an offer made by the Company, and such third party purchases all Notes
validly tendered and not withdrawn under its offer.
ARTICLE V
DEFAULTS
Section 5.01
Defaults
. In addition to the Events of Default described in the Base Indenture, the
following shall constitute an Event of Default under this Supplemental Indenture:
(a) (i) a failure to make any payment at maturity, including any applicable grace period, on
any of the Companys or a Guarantors indebtedness in an amount in excess of $25 million and
continuance of this failure to pay or (ii) a default on any of the Companys or any Guarantors
indebtedness, which default results in the acceleration of indebtedness in an amount in excess of
$25 million without such indebtedness having been discharged or the acceleration having been cured,
waived, rescinded or annulled, for a period of, in the case of clause (i) or (ii) above, 30 days or
more after written notice thereof to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the outstanding Securities of such
series;
provided, however
, that if the failure, default or acceleration referred to in clause (i)
or (ii) above shall cease or be cured, waived, rescinded or annulled, then the Event of Default
shall be deemed cured.
ARTICLE VI
GUARANTEES
Section 6.01
Guarantees of the Notes
. Article 10 of the Base Indenture provides for a Guarantee by the
Guarantors (as defined in the Base Indenture) of selected series of Securities. Article 10 of the
Base Indenture is expressly made applicable to the Notes.
Section 6.02
Effect of Guarantees; Guarantors to be Bound by Indenture
. The Guarantors hereby
irrevocably, fully and unconditionally Guarantee, on a joint and several basis, to each Holder of
the Notes and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Notes or the obligations of the Company under
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the Indenture or the Notes, the obligations of the Company with respect to payment and performance
of the Notes and the other obligations of the Company under the Indenture with respect to the Notes
on the terms, and subject to the conditions, contained in Article 10 of the Base Indenture and
agree to be bound by all other terms of the Indenture applicable to Guarantors thereunder.
Section 6.03
Execution and Delivery of the Guarantees
. The execution and delivery of the Guarantees by
the Guarantors shall be evidenced by the execution and delivery of this Supplemental Indenture by
each of the Guarantors as set forth in Section 10.08 of the Base Indenture. The terms of the
Guarantees and obligations of the Guarantors are set forth in Article 10 of the Base Indenture.
Section 6.04
Termination of Guarantees
. Guarantees of any Guarantor pursuant to this Article VI shall be
released only as provided in Section 10.09 of the Base Indenture or at such time as such Guarantor
shall cease to guarantee any of the indebtedness under the Bank Credit Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.01
Trust Indenture Act Controls
. This Supplemental Indenture shall incorporate and be governed
by the provisions of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act.
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Section 7.02
Governing Law
. The laws of the State of New York shall govern this Supplemental Indenture
and the Securities, without regard to conflicts of laws principles thereof.
Section 7.03
Successors
. All agreements of the Company and the Guarantors in this Supplemental Indenture
and the Notes will bind their respective successors. All agreements of the Trustee in this
Supplemental Indenture will bind its successors.
Section 7.04
Severability
. In case any provision in this Supplemental Indenture or in the Notes will be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
Section 7.05
Counterpart Originals
. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy will be an original, but all of them together represent the same
agreement. The exchange of copies of this Supplemental Indenture and of signature pages by
facsimile or PDF transmission shall constitute effective execution and delivery of this
Supplemental Indenture as to the parties hereto and may be used in lieu of the original
Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile
or PDF shall be deemed to be their original signatures for all purposes.
Section 7.06
Table of Contents, Headings, Etc
. The Table of Contents and Headings of the Articles and
Sections of this Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Supplemental Indenture and will in no way modify or restrict
any of the terms or provisions hereof.
Section 7.07
Validity or Sufficiency of Supplemental Indenture
. The Trustee is not responsible for the
validity or sufficiency of this Supplemental Indenture, or for the recitals contained herein.
Section 7.08
Waiver of Jury Trial
. EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE
NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Signatures on following page]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the date first written above.
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VERISK ANALYTICS, INC., as the Company
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Attest:
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Executive Vice President,
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General Counsel and
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Corporate Secretary
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INSURANCE SERVICES OFFICE, INC., as Guarantor
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Attest:
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Executive Vice President,
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General Counsel and
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Corporate Secretary
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ISO STAFF SERVICES, INC., as Guarantor
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Attest:
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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XACTWARE SOLUTIONS, INC., as Guarantor
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Attest:
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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ISO SERVICES, INC., as Guarantor
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Attest:
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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ISO CLAIMS SERVICES, INC., as Guarantor
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Attest:
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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AIR WORLDWIDE CORPORATION, as Guarantor
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Attest:
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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INTERTHINX, INC., as Guarantor
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Attest:
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name:
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Kenneth E. Thompson
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Title:
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Secretary
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Attest:
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VERISK HEALTH, INC., as Guarantor
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name: Kenneth E. Thompson
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Title: Vice President,
General
Counsel and Secretary
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Attest:
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D2HAWKEYE, INC., as Guarantor
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/s/ Mark V. Anquillare
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By:
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/s/ Kenneth E. Thompson
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Mark V. Anquillare
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Name: Kenneth E. Thompson
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Title: Senior Vice President,
General Counsel and Secretary
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as the Trustee
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By:
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/s/ Raymond Delli Colli
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Name:
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Raymond Delli Colli
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Title:
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Vice President
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EXHIBIT A
FORM OF FACE OF SECURITY
[GLOBAL SECURITY LEGEND]
THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH
MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Verisk Analytics, Inc.
5.800% SENIOR NOTES DUE 2021
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No. ___
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$_________
As revised by the
Schedule of Increases
or Decreases
attached hereto
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Interest
. Verisk Analytics, Inc., a Delaware corporation, (herein called the Company), for
value received, hereby promises to pay to or registered assigns, the principal sum of
United States dollars (U.S.$
), as revised by the Schedule of Increases or Decreases attached
hereto, on May 1, 2021 and to pay interest thereon from or from the most recent
interest payment date to which interest has been paid or duly provided for, semi-annually in
arrears on May 1 and November 1 in each year, commencing , at the rate of 5.800% per
annum, until the principal hereof is paid or made available for payment. Interest shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
Method of Payment
. The interest so payable, and punctually paid or duly provided for, on any
interest payment date will, as provided in the Indenture (as defined on the reverse hereof), be
paid to the Person in whose name this Security (or one or more predecessor Securities) is
registered at the close of business on the relevant record date for such interest, which shall be
April 15 or October 15, as the case may be, next preceding such interest payment date.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Authentication
. Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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VERISK ANALYTICS, INC.
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By:
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Name:
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Title:
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TRUSTEES CERTIFICATE OF AUTHENTICATION
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This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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Date of authentication:
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WELLS FARGO BANK, NATIONAL ASSOCIATION as Trustee
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By:
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Authorized Signatory
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FORM OF REVERSE OF SECURITY
Indenture
. This Security is one of a duly authorized issue of securities of the Company
(herein called the Securities), issued and to be issued in one or more series under an Indenture,
dated as of April 6, 2011, as supplemented by a Supplemental Indenture dated April 6, 2011 (as so
supplemented, herein called the Indenture), between the Company, the guarantors thereto (the
Guarantors) and Wells Fargo Bank, National Association, as Trustee (herein called the Trustee,
which term includes any successor trustee under the Indenture), to which Indenture reference is
hereby made for a statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Guarantors, the Trustee and the holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, initially limited in aggregate principal amount to
$450,000,000.
Guarantees
. The Securities are guaranteed by the Guarantors as set forth in the Indenture,
which guarantees may be released under certain circumstances as set forth in the Indenture.
Optional Redemption
. The Securities of this series are subject to redemption at the Companys
option, at any time and from time to time, in whole or in part, upon not less than 30 nor more than
60 days notice, at a redemption price equal to the greater of: (i) 100% of the principal amount of
the Securities to be redeemed and (ii) the sum of the present values of the Remaining Scheduled
Payments (as defined below) of the Securities to be redeemed, discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate (as defined below) plus 40 basis points,
provided that
the principal amount of a Security
remaining outstanding after redemption in part will be $2,000 or an integral multiple of $1,000 in
excess thereof; in each case, plus accrued interest thereon to the date of, but excluding,
redemption. If the date of redemption is on or after an interest record date and on or before the
related interest payment date, the accrued and unpaid interest, if any, will be paid to the Person
in whose name the Security is registered at the close of business on such interest record date, and
no additional interest will be payable to Holders whose Securities will be subject to redemption by
the Company. Unless the Company defaults in payment of the redemption price, on and after the date
of redemption, interest shall cease to accrue on the Securities or the portions thereof called for
redemption.
For purposes of determining the optional redemption price, the following definitions are
applicable:
Business Day
means any day that is not a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York.
Comparable Treasury Issue
means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Securities.
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Comparable Treasury Price
means, with respect to any date of redemption, the Reference
Treasury Dealer Quotations for that date of redemption.
Independent Investment Banker
means the Reference Treasury Dealer appointed by the Company.
Reference Treasury Dealer
means each of J.P. Morgan Securities LLC and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and their respective successors and two other nationally
recognized investment banking firms that are primary U.S. Government securities dealers specified
from time to time by the Company so long as the entity is a primary U.S. Government securities
dealer.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer
and any date of redemption, the average, as determined by the Company, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding that date of redemption, after excluding the highest and
lowest of such quotations, unless the Company obtains fewer than four such quotations, in which
case the average of all of such quotations.
Remaining Scheduled Payments
means, with respect to each Security to be redeemed, the
remaining scheduled payments of the principal thereof and interest thereon that would be due after
the related date of redemption therefor;
provided
,
however
, that, if that date of redemption is not
an interest payment date with respect to such Security, the amount of the next succeeding scheduled
interest payment thereon will be reduced by the amount of interest accrued thereon to that date of
redemption.
Treasury Rate
means, with respect to any date of redemption, the rate per annum equal to the
semi-annual equivalent yield to maturity, computed as of the third Business Day immediately
preceding that date of redemption, of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for that date of redemption.
Notice of any redemption will be mailed by first-class mail at least 30 days but not more than
60 days before the date of redemption to each holder of Securities to be redeemed. If less than all
the Securities are to be redeemed, the Securities to be redeemed shall be selected by the Trustee
not more than 60 days before the date of redemption by such method as the Trustee deems fair and
appropriate and in accordance with the procedures of the Depositary.
Except as set forth above, the Securities will not be redeemable by the Company prior to
maturity and will not be entitled to the benefit of any sinking fund.
Defaults and Remedies
. If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture.
Amendment, Modification and Waiver
. The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and obligations of the
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Company and the rights of the holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the holders of a
majority in aggregate principal amount of the Securities at the time outstanding of each series to
be affected. The Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Securities of each affected series at the time outstanding, on
behalf of the holders of all Securities of such affected series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Security shall be conclusive and
binding upon such holder and upon all future holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
Restrictive Covenants
. The Indenture contains customary limitations that restrict the
Companys, and in certain circumstances the Guarantors, ability to merge, consolidate or sell
substantially all of its or their assets, place liens on its or their property or assets and engage
in sale/leaseback transactions. Upon a Change of Control Repurchase Event (as defined in the
Indenture), a holder of Securities will have the right, subject to certain terms and conditions
specified in the Indenture, to cause the Company to repurchase all or any part of the Securities of
such holder at a purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest, if any, to the date of repurchase.
Denominations, Transfer and Exchange
. The Securities of this series are issuable only in
registered form without coupons in denominations of $2,000 and in integral multiples of $1,000 in
excess thereof. As provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount of Securities of
like tenor of a different authorized denomination, as requested by the holder surrendering the
same.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registerable in the Security Register, upon surrender of this Security
for registration of transfer at the Registrar accompanied by a written request for transfer in form
satisfactory to the Company and the Registrar duly executed by, the holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Persons Deemed Owners
. Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose
name this Security is registered as the owner hereof for all purposes, whether or not this Security
be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
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Miscellaneous
. The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the conflicts of law rules
thereof.
All terms used in this Security and not defined herein shall have the meanings assigned to
them in the Indenture.
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SCHEDULE OF INCREASES OR DECREASES
The following increases or decreases in this Security have been made:
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Principal Amount of
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this Security
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Signature of
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Amount of increase
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Amount of decrease
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following each
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authorized
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Date of
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in Principal Amount
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in Principal Amount
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decrease or
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signatory of
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Exchange
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of this Security
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of this Security
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increase
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Trustee
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FORM OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 4.03
(Change of Control) of the Supplemental Indenture, check the box:
o
If you want to elect to have only part of this Security purchased by the Company pursuant to
Section 4.03 of the Supplemental Indenture, state the amount:
$
Date:_______________ Your Signature:__________________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:_________________________
Signature must be guaranteed by a participant in a recognized signature guaranty medallion program
or other signature guarantor acceptable to the Trustee.