SM » Topics » SATISFACTION AND DISCHARGE OF INDENTURE

This excerpt taken from the SM 8-K filed Apr 4, 2007.

SATISFACTION AND DISCHARGE OF INDENTURE

Section 9.01. Satisfaction and Discharge of Indenture.

This Indenture shall be discharged and shall cease to be of further effect (except as to surviving rights of registration of transfer or exchange of Securities as expressly provided for herein) as to all Outstanding Securities hereunder, and the Trustee, upon Company Request and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:

 

(a)

either

(1)           all such Securities previously authenticated and delivered (except (A) lost, stolen or destroyed Securities which have been replaced or paid as provided in Section 2.08 or (B) all Securities whose payment has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust as provided in Sections 2.04 and 2.05) have been delivered to the Trustee for cancellation; or

(2)           all such Securities not theretofore delivered to the Trustee for cancellation, have become due and payable, whether at the Final Maturity Date or any Redemption Date, or any Put Right Purchase Date, or a Fundamental Change Purchase Date, or upon conversion or otherwise; and

 

 

 

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(A)          the Company has deposited with the Trustee, a Paying Agent or a Conversion Agent, if applicable (other than the Company or any of its Affiliates) as trust funds in trust for the benefit of the Holders an amount in United States dollars and, if applicable, shares of Common Stock or other consideration due upon conversion, sufficient to pay and discharge the entire indebtedness on such Securities, not theretofore delivered to the Trustee for cancellation, for principal and interest or shares of Common Stock or other consideration due upon conversion to the Redemption Date, Final Maturity Date, Put Right Purchase Date, Fundamental Change Purchase Date or Conversion Date, as the case may be;

(B)          the Company has paid or caused to be paid all other sums payable hereunder by the Company; and

(C)          the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee each stating that (A) all conditions precedent herein relating to the satisfaction and discharge hereof have been complied with and (B) such satisfaction and discharge will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which the Company is bound.

(b)           Notwithstanding the satisfaction and discharge hereof, the obligations of the Company to the Trustee under Section 8.07 and, if amounts shall have been deposited with the Trustee pursuant to subclause (2) of clause (a) of this Section 9.01, the obligations of the Trustee under Section 9.02 and the last paragraph of Section 2.04 shall survive.

Section 9.02. Application of Trust Money.

Subject to the provisions of the last paragraph of Section 2.04, all United States dollars and, if applicable, shares of Common Stock or other consideration due upon conversion, deposited with the Trustee pursuant to Section 9.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal of and interest on, the Securities for whose payment such amounts have been deposited with the Trustee.

Section 9.03. Reinstatement.

If the Trustee, any Paying Agent or any Conversion Agent is unable to apply any money in accordance with Section 9.02 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, then the Company’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 9.01 until such time as the Trustee, such Paying Agent or such Conversion Agent is permitted to apply all such money in accordance with Section 9.02; provided, however, that if the Company has made any payment of the 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 any such payment from the money held by the Trustee, such Paying Agent or such Conversion Agent.

 

 

 

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