EXHIBIT 4.1
XXXXXX, INC.
Issuer
AND
XXXXXX INTERNATIONAL, INC.
Guarantor
AND
LA SALLE NATIONAL BANK
Trustee
_________________________________
INDENTURE
Dated as of June 18, 1998
_________________________________
XXXXXX, INC.
_______________________________________
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
----------------- -----------------
(S) 310(a)(1) .................................. 609
(a)(2) ................................... 609
(a)(3) ................................... Not Applicable
(a)(4) ................................... Not Applicable
(b) ...................................... 608
610
(S) 311(a) ..................................... 613
(b) ...................................... 613
(S) 312(a) ..................................... 701
702(a)
(b) ...................................... 702(b)
(c) ...................................... 703(c)
(S) 313(a) ..................................... 703(a)
(b) ...................................... 703(a)
(c) ...................................... 703(a)
(d) ...................................... 703(b)
(S) 314(a) ..................................... 704
(a)(4) ................................... 101
1004
(b) ...................................... Not Applicable
(c)(1) ................................... 102
(c)(2) ................................... 102
(c)(3) ................................... Not Applicable
(d) ...................................... Not Applicable
(e) ...................................... 102
(S) 315(a) ..................................... 601
(b) ...................................... 602
(c) ...................................... 601
(d) ...................................... 601
(e) ...................................... 514
(S) 316(a) ..................................... 101
(a)(1)(A) ................................ 502
512
(a)(1)(B) ................................ 513
(a)(2) ................................... Not Applicable
i
(b) ...................................... 508
(c) ...................................... 104(c)
(S) 317(a)(1) .................................. 503
(a)(2) ................................... 504
(b) ...................................... 1003
(S) 318(a) ..................................... 107
_____________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture
ii
TABLE OF CONTENTS/1/
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Page
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RECITALS OF THE COMPANY....................................................1
ARTICLE ONE............DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION..............................1
SECTION 101......... Definitions.........................................1
Act ..................................................................2
Adjusted Treasury Rate ...............................................2
Affiliate ............................................................2
Attributable Debt ....................................................2
Authenticating Agent .................................................2
Board of Directors ...................................................3
Board Resolution .....................................................3
Business Day .........................................................3
Capital Stock ........................................................3
Commission ...........................................................3
Company ..............................................................3
Company Request ......................................................3
Company Order ........................................................3
Comparable Treasury Issue ............................................3
Comparable Treasury Price ............................................3
Consolidated Net Tangible Assets .....................................4
Corporate Trust Office ...............................................4
corporation ..........................................................4
Debt .................................................................4
Defaulted Interest ...................................................4
Depositary ...........................................................4
DTC ..................................................................4
Event of Default .....................................................4
Funded Debt ..........................................................4
Global Security ......................................................4
Guarantees ...........................................................4
Guarantor ............................................................5
Holder ...............................................................5
Indenture ............................................................5
----------------------------
/1/
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
iii
Interest Payment Date ................................................5
Maturity .............................................................5
Mortgage .............................................................5
Officers' Certificate ................................................5
Opinion of Counsel ...................................................5
Outstanding ..........................................................5
Paying Agent .........................................................6
Person ...............................................................6
Place of Payment .....................................................6
Predecessor Security .................................................6
Principal Property ...................................................6
Quotation Agent ......................................................7
Redemption Date ......................................................7
Redemption Price .....................................................7
Reference Treasury Dealer Quotations .................................7
Regular Record Date ..................................................7
Remaining Scheduled Payments .........................................7
Responsible Officer ..................................................8
Sale and Lease-Back Transaction ......................................8
Securities ...........................................................8
Security Register ....................................................8
Security Registrar ...................................................8
Significant Subsidiary ...............................................8
Special Record Date ..................................................8
Stated Maturity ......................................................8
Subsidiary ...........................................................8
Trustee ..............................................................8
Trust Indenture Act ..................................................9
U.S. Government Obligations ..........................................9
Vice President .......................................................9
Cash transaction .....................................................9
Self-liquidating paper ...............................................9
SECTION 102 ........ Compliance Certificates and Opinions .................................... 9
SECTION 103 ........ Form of Documents Delivered to Trustee .................................. 10
SECTION 104 ........ Acts of Holders; Record Dates ........................................... 10
SECTION 105 ........ Notices, Etc., to Trustee, Company and Guarantor......................... 12
SECTION 106 ........ Notice to Holders; Waiver ............................................... 12
SECTION 107 ........ Conflict with Trust Indenture Act ....................................... 13
SECTION 108 ........ Effect of Headings and Table of Contents ................................ 13
SECTION 109 ........ Successors and Assigns .................................................. 13
SECTION 110 ........ Separability Clause ..................................................... 13
SECTION 111 ........ Benefits of Indenture ................................................... 13
SECTION 112 ........ Governing Law ........................................................... 13
SECTION 113 ........ Legal Holidays .......................................................... 13
iv
ARTICLE TWO ........ SECURITY FORMS AND GUARANTEES ........................................... 14
SECTION 201 ........ Forms Generally ......................................................... 14
SECTION 202 ........ Form of Face of Security ................................................ 14
SECTION 203 ........ Form of Reverse of Security ............................................. 18
SECTION 204 ........ Form of Trustee's Certificate of Authentication ......................... 20
SECTION 205 ........ Form of Guarantee ....................................................... 20
SECTION 206 ........ Form of Assignment ...................................................... 22
ARTICLE THREE ...... THE SECURITIES .......................................................... 23
SECTION 301 ........ Title and Terms ......................................................... 23
SECTION 302 ........ Denominations ........................................................... 24
SECTION 303 ........ Execution, Authentication, Delivery and Dating .......................... 24
SECTION 304 ........ Temporary Securities .................................................... 24
SECTION 305 ........ Registration, Registration of Transfer and Exchange ..................... 25
SECTION 306 ........ Mutilated, Destroyed, Lost and Stolen Securities ........................ 27
SECTION 307 ........ Payment of Interest; Interest Rights Preserved .......................... 28
SECTION 308 ........ Persons Deemed Owners ................................................... 29
SECTION 309 ........ Cancellation ............................................................ 30
SECTION 310 ........ Computation of Interest ................................................. 30
SECTION 311 ........ Guarantee of Securities ................................................. 30
SECTION 312 ........ Execution of Guarantees ................................................. 31
ARTICLE FOUR ....... SATISFACTION AND DISCHARGE .............................................. 32
SECTION 401 ........ Satisfaction and Discharge of Indenture ................................. 32
SECTION 402 ........ Application of Trust Money .............................................. 33
ARTICLE FIVE ....... REMEDIES ................................................................ 33
SECTION 501 ........ Events of Default ....................................................... 33
SECTION 502 ........ Acceleration of Maturity; Rescission and Annulment ...................... 35
SECTION 503 ........ Collection of Indebtedness and Suits for Enforcement by Trustee ......... 37
SECTION 504 ........ Trustee May File Proofs of Claim ........................................ 37
SECTION 505 ........ Trustee May Enforce Claims Without Possession of Securities ............. 38
SECTION 506 ........ Application of Money Collected .......................................... 38
SECTION 507 ........ Limitation on Suits ..................................................... 39
SECTION 508 ........ Unconditional Right of Holders to Receive Principal, Premium and Interest 39
SECTION 509 ........ Restoration of Rights and Remedies ...................................... 39
SECTION 510 ........ Rights and Remedies Cumulative .......................................... 40
SECTION 511 ........ Delay or Omission Not Waiver ............................................ 40
SECTION 512 ........ Control by Holders ...................................................... 40
SECTION 513 ........ Waiver of Past Defaults ................................................. 41
SECTION 514 ........ Undertaking for Costs ................................................... 41
SECTION 515 ........ Waiver of Stay or Extension Laws ........................................ 41
ARTICLE SIX ........ THE TRUSTEE ............................................................. 42
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SECTION 601 ........ Certain Duties and Responsibilities ..................................... 42
SECTION 602 ........ Notice of Defaults ...................................................... 43
SECTION 603 ........ Certain Rights of Trustee ............................................... 43
SECTION 604 ........ Not Responsible for Recitals or Issuance of Securities .................. 44
SECTION 605 ........ May Hold Securities ..................................................... 44
SECTION 606 ........ Money Held in Trust ..................................................... 45
SECTION 607 ........ Compensation and Reimbursement .......................................... 45
SECTION 608 ........ Disqualification; Conflicting Interests ................................. 45
SECTION 609 ........ Corporate Trustee Required; Eligibility ................................. 46
SECTION 610 ........ Resignation and Removal; Appointment of Successor ....................... 46
SECTION 611 ........ Acceptance of Appointment by Successor .................................. 47
SECTION 612 ........ Merger, Conversion, Consolidation or Succession to Business ............. 48
SECTION 613 ........ Preferential Collection of Claims Against Company or the Guarantor ...... 48
SECTION 614 ........ Appointment of Authenticating Agent ..................................... 48
ARTICLE SEVEN ...... HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY ....................... 50
SECTION 701 ........ Company to Furnish Trustee Names and Addresses of Holders ............... 50
SECTION 702 ........ Preservation of Information; Communications to Holders .................. 50
SECTION 703 ........ Reports by Trustee ...................................................... 51
SECTION 704 ........ Reports by Company and Guarantor ........................................ 51
ARTICLE EIGHT ...... CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE .................... 52
SECTION 801 ........ Company and Guarantor May Consolidate, Etc., Only on Certain Terms ...... 52
SECTION 802 ........ Successor Substituted for the Guarantor ................................. 53
SECTION 803 ........ Successor Substituted for the Company ................................... 53
ARTICLE NINE ....... SUPPLEMENTAL INDENTURES ................................................. 54
SECTION 901 ........ Supplemental Indentures Without Consent of Holders ...................... 54
SECTION 902 ........ Supplemental Indentures With Consent of Holders ......................... 55
SECTION 903 ........ Execution of Supplemental Indentures .................................... 55
SECTION 904 ........ Effect of Supplemental Indentures ....................................... 56
SECTION 905 ........ Conformity with Trust Indenture Act ..................................... 56
SECTION 906 ........ Reference in Securities to Supplemental Indentures ...................... 56
ARTICLE TEN ........ COVENANTS ............................................................... 56
SECTION 1001 ....... Payment of Principal, Premium and Interest .............................. 56
SECTION 1002 ....... Maintenance of Office or Agency ......................................... 56
SECTION 1003 ....... Money for Securities Payments to be Held in Trust ....................... 57
SECTION 1004 ....... Statement by Officers as to Default ..................................... 58
SECTION 1005 ....... Existence ............................................................... 59
SECTION 1006 ....... Restrictions on Secured Debt ............................................ 59
SECTION 1007 ....... Restrictions on Sale and Lease-Back Transactions ........................ 60
SECTION 1008 ....... Waiver of Certain Covenants ............................................. 62
vi
ARTICLE ELEVEN ..... REDEMPTION OF SECURITIES ................................................ 62
SECTION 1101 ....... Applicability of Article ................................................ 62
SECTION 1102 ....... Election to Redeem; Notice to Trustee ................................... 62
SECTION 1103 ....... Selection by Trustee of Securities to be Redeemed ....................... 62
SECTION 1104 ....... Notice of Redemption .................................................... 63
SECTION 1105 ....... Deposit of Redemption Price ............................................. 63
SECTION 1106 ....... Securities Payable on Redemption Date ................................... 63
SECTION 1107 ....... Securities Redeemed in Part ............................................. 64
ARTICLE TWELVE ..... DEFEASANCE AND COVENANT DEFEASANCE ...................................... 64
SECTION 1201 ....... Company's Option to Effect Defeasance or Covenant Defeasance ............ 64
SECTION 1202 ....... Defeasance and Discharge ................................................ 64
SECTION 1203 ....... Covenant Defeasance ..................................................... 65
SECTION 1204 ....... Conditions to Defeasance or Covenant Defeasance ......................... 65
SECTION 1205 ....... Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions................................................ 67
SECTION 1206 ....... Reinstatement ........................................................... 67
ARTICLE THIRTEEN ... IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS ......... 68
SECTION 1301 ....... Immunity of Incorporators, Shareholders, Officers and Directors ......... 68
vii
INDENTURE, dated as of June 18, 1998 between Xxxxxx, Inc. a corporation
duly organized and existing under the laws of the State of Delaware (herein
called the "Company") and having its principal office at 0000 Xxxxxxxxx Xxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxx, 00000-0000, Xxxxxx International, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Guarantor") and having its principal office at 0000
Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000-0000, and LaSalle National Bank,
a national banking association duly organized and existing under the laws of the
United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 7% Senior Notes due June 15, 2005
(herein called the "Securities") of substantially the tenor and amount
hereinafter set forth.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the issuance of Guarantees to be endorsed on the
Securities when authenticated and delivered hereunder.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
and the Guarantees by Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of this instrument; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Adjusted Treasury Rate" means, with respect to any Redemption Date, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof (excluding any subsequent
renewal or other extension options held by the lessee), discounted from the
respective due dates thereof to such date of determination at the rate of
interest per annum implicit in the terms of such lease, as determined in good
faith by the Company, compounded annually. The net amount of rent required to
be paid under any such lease for any such period shall be the amount of the rent
payable by the lessee with respect to such period, after excluding amounts
required to be paid on account of maintenance and repairs, reconstruction,
insurance, taxes, assessments, water rates and similar charges and contingent
rents (such as those based on sales). In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities.
2
"Board of Directors" means either the board of directors of the Company or
the Guarantor, as the context requires, any duly authorized committee of that
board or any officer of the Company or the Guarantor duly authorized by the
board of directors of the Company or the Guarantor, as the case may be, to take
a specified action.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company or the Guarantor, as the case may be,
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, 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 Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Chief
Financial Officer, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee by hand or by facsimile,
courier, registered mail or otherwise.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the Securities to be redeemed that would be utilized, 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.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the Reference Treasury Dealer Quotations for such
3
Redemption Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations; or (ii) if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such Quotations.
"Consolidated Net Tangible Assets" means, with respect to any Person, on
the date on which the determination is being made, the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (i) all current liabilities (excluding current maturities of
long-term debt and capitalized lease obligations), and (ii) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent quarterly balance sheet of such
Person and its consolidated Subsidiaries and computed in accordance with
generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office at the date of execution of this Indenture is located at LaSalle National
Bank, Corporate Trust Services Division, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, Facsimile number: (000) 000-0000.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means DTC until a successor depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean such successor Depositary.
"DTC" means the Depository Trust Company, a New York corporation.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means, on the date on which the determination is being made,
any Debt maturing by its terms more than 12 months from such date, including any
Debt renewable or extendible at the option of the borrower to a date later than
12 months from such date of determination.
"Global Security" means a Security or Securities, as the case may be, in
the form prescribed in Section 202, issued to the Depositary or its nominee, and
registered in the name of such Depositary or nominee.
"Guarantees" means the guarantees of the Guarantor to be endorsed on the
Securities authenticated and delivered hereunder.
4
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or on the Redemption Date or by
declaration of acceleration or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate'" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company or the Guarantor, as
applicable, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company or the Guarantor, as
the case may be.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for, or an employee of, the Company or the Guarantor, and who shall be
reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided
5
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) Securities with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Twelve;
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 other obligor upon the Securities or any Affiliate of the
Company or of such other obligor 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 which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) and interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Place of Payment" means the place or places where the principal of (and
premium, if any) and interest on the Securities are payable as specified by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means, on any date of determination, any manufacturing
plant or manufacturing facility (i) owned by the Company, the Guarantor or any
Subsidiary of either of the foregoing, (ii) located in the continental United
States of America and (iii) having a gross book value, on such date, in excess
of (a) with respect to any such plant or facility owned as of such date by the
6
Guarantor or a Subsidiary of the Guarantor, 2% of the Consolidated Net Tangible
Assets of the Guarantor or (b) if the Company is not a Subsidiary of the
Guarantor as of such date, with respect to any such plant or facility owned by
the Company or a Subsidiary of the Company, 2% of the Consolidated Net Tangible
Assets of the Company; provided, however, that the term "Principal Property"
shall not include (x) any plant or facility described in clause (a) of this
sentence if, in the opinion of the Board of Directors of the Guarantor, or (y)
any plant or facility described in clause (b) of this sentence, if, in the
opinion of the Board of Directors of the Company, in either case, as set forth
in, and effective as of the date of, a Board Resolution, such plant or facility
is not of material importance to the business conducted by the Guarantor and its
Subsidiaries or the Company and its Subsidiaries, respectively, taken as a
whole.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed as specified therein.
"Reference Treasury Dealer" means (i) each of X.X. Xxxxxx Securities Inc.
and Salomon Brothers Inc and their respective successors; provided, however,
that if either of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Company
shall substitute therefor another Primary Treasury Dealer; and (ii) any other
Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, 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 Trustee by such
Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
"Regular Record Date" for the interest payable with respect to any Security
on any Interest Payment Date means the June 1 or December 1 (whether or not a
Business Day) next preceding the relevant Interest Payment Date.
"Remaining Scheduled Payments" means, with respect to any Security, the
remaining scheduled payments of the principal thereof to be redeemed and
interest thereon that would be due after the related Redemption Date but for
such redemption; provided, however, that, if such Redemption Date 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 such Redemption Date.
7
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Company, the Guarantor or any Subsidiary of any
Principal Property, whether owned at the date of the Indenture or thereafter
acquired (except for temporary leases for a term, including any renewal thereof,
of not more than three years and except for leases between the Company or the
Guarantor and any Subsidiary, between any Subsidiary and the Company or the
Guarantor or between Subsidiaries (in each case, including the Company)), which
Principal Property has been or is to be sold or transferred by the Guarantor or
such Subsidiary to such Person with the intention of taking back a lease of such
Principal Property.
"Securities" has the meaning stated in the first recital of this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Significant Subsidiary" means, with respect to any Person, any Subsidiary
that would be a "Significant Subsidiary" of such Person within the meaning of
Rule 1-02 under Regulation S-X promulgated by the Commission.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or interest
thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of interest is due and
payable.
"Subsidiary" means a corporation of which more than 50% of the outstanding
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote generally in the election of directors
thereof is owned, directly or indirectly, by the Company or the Guarantor, as
the context requires, or by one or more other Subsidiaries, or by the Company or
the Guarantor, as the context requires, and one or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable
8
provisions of this Indenture, and thereafter "Trustee" shall mean the Person who
is then a Trustee hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended and
in force at the date as of which this instrument was executed, except as
provided in Section 905.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America for the payment of which its full faith and credit is pledged, or
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, and the payment of which is
unconditionally guaranteed by the United States.
"Vice President", when used with respect to the Company, the Guarantor or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
For purposes of Section 311(b)(4) and (6) of the Trust Indenture Act, the
following terms shall mean:
"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
"Self-liquidating paper" means any draft, xxxx 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 receivable 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, xxxx of exchange, acceptance or obligation.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company or
the Guarantor, as the case may be, shall furnish to the Trustee 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 an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
9
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
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 a certificate of public officials.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous.
Where any Person or Persons is or are required to make, give or execute two
or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided,
10
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company and the Guarantor. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee, the Company and the Guarantor, if made in
the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including a
Depositary that is a Holder of a Global Security, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to
be made, given or taken by Holders, and a Depositary that is a Holder of a
Global Security may provide its proxy or proxies to the beneficial owners of
interests in any such Global Security.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The Company may, at its option, by Board Resolution, set a record date
for determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act, or to vote on
any action, authorized or permitted to be given or taken by Holders, but the
Company shall have no obligation to do so. If a record date is set pursuant to
this paragraph, such Act may be given or taken before or after the record date,
by only the Holders of record at the close of business on such record date who
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such Act, and for that purpose the Outstanding Securities shall be
computed as of the record date. If a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date after which no
such Act purported to be given or taken by any Holder shall be effective
hereunder unless given or taken on or prior to such expiration date by Holders
of the requisite Outstanding Securities on such record date but the Company
shall have no obligation to do so. On or prior to any expiration date set
pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such date to any later date.
(d) The ownership of Securities shall be proved by the Security Register.
11
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Company or the
Guarantor in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, Etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company or the Guarantor, as the case may be, by the Trustee
or by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid or sent by facsimile (with prompt confirmation by first-
class mail, postage prepaid), to the Company or the Guarantor, as the case
may be, addressed to it at the address of its principal office specified in
the first paragraph of this instrument, Attention: Chief Financial Officer
(with a copy to the same address, Attention: General Counsel) or at any
other address previously furnished in writing to the Trustee by the Company
or the Guarantor.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. 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 by reason of the suspension of regular mail service or by reason of
any other cause it shall be
12
impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Guarantor shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities or 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 111. Benefits of Indenture.
Nothing in this Indenture, the Securities or the Guarantees, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture, the Securities and the Guarantees shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the principles of conflicts of law thereof.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities), payment of principal (and premium, if any) or
13
interest need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date, Redemption Date or at the
Stated Maturity, provided that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS AND GUARANTEES
SECTION 201. Forms Generally.
The Securities, the Guarantees and the Trustee's certificates of
authentication shall be in substantially the form set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The Securities initially shall be issued in the form of a Global Security.
Any definitive Securities and Guarantees shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
[The following legend shall also appear on the face of each Global Security:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
REFERRED TO BELOW 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.]
[The following legend shall also appear on the face of each Global Security for
which The Depository Trust Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF
14
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 IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED
SECURITIES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERENCED
IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
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.]
15
XXXXXX, INC.
7% Senior Notes due June 15, 2005
No. _______
[ ]____________$CUSIP No. 000000XX0
Xxxxxx, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ________________________________, or
registered assigns, the principal sum of __________________________________
Dollars on June 15, 2005, and to pay interest thereon from June 18, 1998 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on June 15 and December 15 in each year, commencing
December 15, 1998 at the rate of 7% per annum, until the principal hereof is
paid or made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of 7% per annum on any
overdue principal and premium and on any overdue installment of interest. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in such Indenture, 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 Regular Record Date for such interest, which shall be
the June 1 or December 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, the City of New York or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
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.
16
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.
17
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
XXXXXX, INC.
By:_____________________________
Name:
[CORPORATE SEAL] Title:
Attest:
By:_____________________________
Name:
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company designated as its "7% Senior Notes due June 15, 2005" (herein called the
"Securities"), limited in aggregate principal amount to $150,000,000, issued
under an Indenture, dated as of June 18, 1998 (herein called the "Indenture"),
between the Company, Xxxxxx International, Inc., as Guarantor (the "Guarantor")
and LaSalle National Bank, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantor, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered.
No sinking fund is provided for the Securities.
The Securities are redeemable, in whole or in part, at the option of the
Company at any time upon not less than 30 days' nor more than 60 days' notice by
mail, at any time, at a redemption price equal to the greater of (i) 100% of the
aggregate principal amount of the such Securities or (ii) as determined by the
Quotation Agent, the sum of the present values of the Remaining Scheduled
Payments discounted to the Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate
plus 20 basis points plus, in each case, accrued but unpaid interest thereon to
the Redemption Date; provided, however, that interest installments due on an
Interest Payment Date which is on
18
or prior to the Redemption Date will be payable to Holders who are Holders of
record of such Securities as of the close of business on the fifteenth day next
preceding such Interest Payment Date.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and the related
Events of Default with respect to this Security, in each case upon compliance by
the Company with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities at any
time by the Company, the Guarantor and the Trustee with the consent of the
Holders of at least a majority in principal amount of the Securities at the time
Outstanding to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities at
the time Outstanding, on behalf of the Holders of all Securities, to waive
compliance by the Company and the Guarantor 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
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. A Holder may
transfer or exchange Securities in accordance with the Indenture.
19
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.
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.
No recourse for the payment of the principal of (premium, if any) or
interest on this Security, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor Person, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by the issue hereof, expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
laws principles as applied in such state.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication. '
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
LA SALLE NATIONAL BANK,
As Trustee
By______________________________
Authorized Officer
SECTION 205. Form of Guarantee.
20
A Guarantee substantially in the following form shall be endorsed on the
reverse of each Security:
Xxxxxx International, Inc., (the "Guarantor") hereby unconditionally and
irrevocably guarantees to the Holder of this Security the due and punctual
payment of the principal of (and premium, if any) and interest, on this
Security, when and as the same shall become due and payable, whether at maturity
or upon redemption or upon declaration of acceleration or otherwise, according
to the terms of this Security and of the Indenture. The Guarantor agrees that
in the case of default by the Company in the payment of any such principal (and
premium, if any) or interest, the Guarantor shall duly and punctually pay the
same. The Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional irrespective of any extension of the time for payment
of this Security, any modification of this Security, any invalidity,
irregularity or unenforceability of this Security or the Indenture, any failure
to enforce the same or any waiver, modification, consent or indulgence granted
to the Company with respect thereto by the Holder of this Security or the
Trustee, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or guarantor. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Company, any right to require a demand or
proceeding first against the Company, protest or notice with respect to this
Security or the indebtedness evidenced hereby and all demands whatsoever, and
covenants that this guarantee will not be discharged as to this Security except
by payment in full of the principal of (and premium, if any) and interest on
this Security.
The Guarantor shall be subrogated to all rights of the Holders against the
Company in respect of any amounts paid by the Guarantor pursuant to the
provisions of the Guarantee or this Indenture; provided, however, that the
Guarantor hereby waives any and all rights to which it may be entitled, by
operation of law or otherwise, upon making any payment hereunder (i) to be
subrogated to the rights of a Holder against the Company with respect to such
payment or otherwise to be reimbursed, indemnified or exonerated by the Company
in respect thereof or (ii) to receive any payment in the nature of contribution
or for any other reason, from any other obligor with respect to such payment, in
each case, until the principal of (and premium, if any) and interest on all
Securities issued hereunder shall have been paid in full.
This Guarantee shall not be valid or become obligatory for any purpose with
respect to this Security until the certificate of authentication on this
Security shall have been signed by the Trustee.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the principles of
conflicts of law thereof.
21
IN WITNESS WHEREOF, Xxxxxx International, Inc. has caused this Guarantee to
be signed by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
XXXXXX INTERNATIONAL, INC.
[CORPORATE SEAL] By____________________________
Attest:
________________________
SECTION 206. Form of Assignment.
For value received ________________________ hereby sells(s), assign(s) and
transfer(s) unto _____________________ (Please insert social security or other
identifying number of assignee) the within Security, and hereby irrevocably
constitutes and appoints _________________________ as attorney to transfer the
said Security on the books of the Company, with full power of substitution in
the premises.
Dated: ______________________________
Signature(s)
Signature(s) must be guaranteed by an
Eligible Guarantor Institution with
membership in an approved signature
guarantee program pursuant to Rule
l7Ad-15 under the Securities Exchange
Act of 1934.
______________________________
Signature Guaranteed
22
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $150,000,000, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Sections 304, 305, 306, 906 and
1107.
The Securities shall be known and designated as the "7% Senior Notes due
June 15, 2005" of the Company. Their Stated Maturity shall be June 15, 2005 and
they shall bear interest at the rate of 7% per annum from June 18, 1998 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable semi-annually in arrears on June 15
and December 15 of each year, commencing December 15, 1998, until the principal
thereof is paid or made available for payment, provided that any amount of such
principal or interest that is overdue shall bear interest at the rate of 7% per
annum (to the extent that payment of such interest shall be legally
enforceable), from the date such amount is due until it is paid or made
available for payment, and such interest on any overdue amount shall be payable
on demand.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
The Securities shall be redeemable at the Company's option, in whole or in
part, at any time as provided in the form of Securities set forth in Section 202
and 203 and Article Eleven.
The Securities are not entitled to the benefit of any sinking fund.
So long as any Global Security issued hereunder is registered in the name
of the Depositary or its nominee, members of, or participants in, the Depositary
("Agent Members") shall have no rights under this Indenture with respect to the
Global Security held on their behalf by the Depositary (or, if applicable, the
Trustee as custodian for the Depositary) and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes hereunder.
Notwithstanding the foregoing, nothing herein shall (i) prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or (ii) impair, as between the Depositary and its
23
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of Securities.
SECTION 302. Denominations.
The Securities shall be issuable in registered form without coupons and
only in denominations of $1,000 and any integral multiple of $1,000 in excess
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
If an officer of the Company whose signature is on a Security no longer
holds that office at the time the Trustee authenticates such Security or at any
time thereafter, the Security shall be valid nevertheless.
Upon issuance of the Global Security referred to in Section 201 hereof,
such Global Security shall be (i) duly executed by the Company and authenticated
by the Trustee as hereinafter provided, (ii) delivered to the Depositary or to
the Trustee as custodian for the Depositary and (iii) registered in the name of
Cede & Co. as nominee of the Depositary.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company, having
endorsed thereon Guarantees duly executed by the Guarantor, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are
24
issued and having endorsed thereon Guarantees duly executed by the Guarantor
substantially of the tenor of the definitive Guarantees, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities and such Guarantees may determine, as
evidenced by their execution of such Securities and such Guarantees.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company in a Place of Payment, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations and having endorsed thereon Guarantees duly executed by the
Guarantor. Until so exchanged the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities.
For purposes of this Section 304, each Global Security shall be considered
a definitive Security.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the office
or agency in a Place of Payment, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities, of any authorized denominations and of
a like aggregate principal amount and tenor, each such Security having endorsed
thereon a Guarantee duly executed by the Guarantor.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount and tenor, each such Security having endorsed thereon a Guarantee duly
executed by the Guarantor, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities (having endorsed thereon Guarantees duly executed by the Guarantor)
which the Holder making the exchange is entitled to receive.
25
All Securities issued upon any registration of transfer or exchange of
Securities, and the Guarantees endorsed thereon, shall be the valid obligations
of the Company and the Guarantor, respectively, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange and the Guarantees
endorsed thereon.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities excluding any case in which such Securities have been
mutilated, destroyed, lost or stolen, in which case the Registrar may charge a
reasonable fee for replacement, but 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 registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of Securities selected
for redemption under Section 1103 and ending at the close of business on the day
of such mailing, (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part or (iii) to issue, register the transfer of
or exchange any Security which has been surrendered for repayment at the option
of the Holder, except the portion, if any, of such Security not to be so repaid.
Notwithstanding any other provision of this Section 305, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a portion of the Securities may not
be transferred except as a whole by the Depositary to a nominee of such
Depositary, and a Global Security may not be exchanged for Securities in
definitive form except as hereafter provided in this Section 305.
If at any time the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary or if at any time the Depositary shall cease to
be a clearing agency registered under the Securities Exchange Act of 1934 and
any other applicable statute or regulation, the Company shall appoint a
successor Depositary. If a successor Depositary is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company and the Guarantor will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities will authenticate and deliver Securities in definitive registered
form (having endorsed thereon Guarantees duly executed by the Guarantor), in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities, in exchange for such
Global Security or Securities.
26
The Company may at any time and in its sole discretion determine that the
Securities issued in the form of one or more Global Securities shall no longer
be represented by such Global Security or Securities. In such event, the
Company and the Guarantor will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities will
authenticate and deliver, Securities in definitive registered form (having
endorsed thereon Guarantees duly executed by the Guarantor), in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Global Security or Securities, in exchange for such Global Security or
Securities.
If specified by the Company with respect to the Securities, a Person owning
a beneficial interest in a Global Security or Securities may instruct the
Depositary to surrender such Global Security in exchange, in whole or in part,
for Securities in definitive registered form (having endorsed thereon Guarantees
duly executed by the Guarantor), on such terms as are acceptable to the Company,
the Trustee and the Depositary. Thereupon, the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge:
(i) to the Person specified by such Depositary a new Security or
Securities of any authorized denomination as requested by such Person
(having endorsed thereon Guarantees duly executed by the Guarantor), in an
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security (having endorsed thereon
Guarantees duly executed by the Guarantor) in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Securities authenticated and
delivered pursuant to Clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form, such Global Security shall be canceled by the Trustee.
Securities in definitive registered form issued in exchange for a Global
Security pursuant to this Section 305 shall be issued in denominations of $1,000
and integral multiples thereof and registered in such names and as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of like tenor and principal amount (having endorsed thereon
Guarantees duly executed by the Guarantor) and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in
27
the absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount (having endorsed
thereon Guarantees duly executed by the Guarantor) and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security, and the related Guarantee, shall constitute
an original additional contractual obligation of the Company and the Guarantor,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company
28
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities at such Holder's address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Guarantor, the Trustee, any Authenticating Agent, any Paying Agent
or the Security Registrar and any agent of the Company, the Guarantor, the
Trustee, any Authenticating Agent, any Paying Agent or the Security Registrar
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 307) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Guarantor, the Trustee, any Authenticating Agent, any Paying
Agent or the Security Registrar nor any agent of the Company, the Guarantor, the
Trustee, any Authenticating Agent, any Paying Agent or the Security Registrar
shall be affected by notice to the contrary.
29
None of the Company, the Guarantor, the Trustee, any Authenticating Agent,
any Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company or the
Guarantor may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee, except that if a Global
Security is so surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the Depositary, without service charge, a new Global
Security or Securities in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be held by the
Trustee in accordance with its customary practices until destroyed by the
Trustee; provided, however that the Trustee shall not be required to destroy
such Securities.
The Company may not issue new Securities to replace Securities it has paid
in full or delivered to the Trustee for cancellation.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 311. Guarantee of Securities.
The Guarantor hereby unconditionally and irrevocably guarantees to each
Holder the due and punctual payment of the principal of (and premium, if any)
and interest on such Security, when and as the same shall become due and
payable, whether at maturity or upon redemption or upon declaration of
acceleration or otherwise, according to the terms of such Security and of this
Indenture. The Guarantor agrees that in case of default by the Company in the
payment of any such principal (premium, if any) or interest, the Guarantor shall
duly and punctually pay the same. The Guarantee set forth in this Section 311
is a guarantee of payment and not of collection. The Guarantor hereby agrees
that its obligations hereunder shall be absolute and unconditional irrespective
of any extension of the time for payment of any such Security, any modification
of any such Security, any invalidity, irregularity or unenforceability of any
such Security or this Indenture, any failure to enforce the same or any waiver,
modification, consent or indulgence granted to the Company with respect thereto
by the Holder of such Security or the
30
Trustee, recovery of judgment against the Company or any other circumstances
which may otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor. The Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a demand or proceeding first against the
Company, protest or notice with respect to any such Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged as to any such Security except by payment in full of the
principal of (and premium, if any) and interest on such Security.
The Guarantor shall be subrogated to all rights of the Holders against the
Company in respect of any amounts paid by the Guarantor pursuant to the
provisions of the Guarantee or this Indenture; provided, however, that the
Guarantor hereby waives any and all rights to which it may be entitled, by
operation of law or otherwise, upon making any payment hereunder (i) to be
subrogated to the rights of a Holder against the Company with respect to such
payment or otherwise to be reimbursed, indemnified or exonerated by the Company
in respect thereof or (ii) to receive any payment in the nature of contribution
or for any other reason, from any other obligor with respect to such payment, in
each case, until the principal of (and premium, if any) and interest on all
Securities issued hereunder shall have been paid in full.
The Guarantor, and by its acceptance hereof each Holder, hereby confirms
that it is the intention of all such parties that the Guarantees not constitute
a fraudulent transfer or conveyance for the purposes of title 11 of the United
States Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any other applicable federal, state or foreign law similar to
any of the foregoing. To effectuate the foregoing intention, the Holders and
the Guarantor hereby irrevocably agree that the obligations of the Guarantor
under this Section 311 shall be limited to such maximum amount as will, after
giving effect to all other contingent and fixed liabilities of the Guarantor,
result in the obligations of the Guarantor under the Guarantees not constituting
a fraudulent transfer or conveyance under applicable federal or state law.
The Guarantee set forth in this Section shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee.
SECTION 312. Execution of Guarantees.
To evidence its Guarantee specified in Section 311 to the Holders of
Securities, the Guarantor hereby agrees to execute the Guarantees in
substantially the form above recited to be endorsed on each Security. Such
Guarantees shall be executed on behalf of the Guarantor by its Chief Executive
Officer, its President or one of its Vice Presidents under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Guarantee may be
manual or facsimile.
31
If an officer of the Guarantor whose signature is on a Guarantee endorsed
on a Security no longer holds that office at the time the Trustee authenticates
such Security or at any time thereafter, the Security shall be valid
nevertheless.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company or the Guarantor
and thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company or the Guarantor, as the case may be, in the case
of (i), (ii) or (iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities
32
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company or the Guarantor, as the case may be, has paid or
caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, to the effect that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 607,
the obligations of the Trustee to any Authenticating Agent under Section 614,
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the
Guarantees 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
(premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security at its
Stated Maturity, and continuance of such default for a period of 30 days;
or
(2) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(3) default in the performance, or breach, of any other covenant or
warranty of the Company or the Guarantor in this Indenture, the Securities
or the Guarantees
33
endorsed thereon (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(4) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Guarantor, the Company or any
Subsidiary of the Guarantor or under any mortgage, indenture or instrument
under which there may be secured or evidenced any indebtedness for money
borrowed by the Guarantor, the Company or any Subsidiary of the Guarantor,
whether such indebtedness now exists or shall hereafter be created, which
default shall constitute a failure to pay indebtedness in a principal
amount in excess of $20 million when due and payable at the final maturity
thereof, after the expiration of any applicable grace period with respect
thereto, or shall have resulted in such indebtedness in a principal amount
in excess of $20 million becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged, or such acceleration
having been rescinded or annulled, within a period of 30 days after there
shall have been given, by registered or certified mail, to the Guarantor
and the Company by the Trustee or to the Guarantor, the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default and
requiring the Guarantor or the Company, as the case may be, to cause such
indebtedness to be discharged or such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Guarantor, the Company or any
Significant Subsidiary of the Guarantor in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Guarantor, the Company or any Significant Subsidiary of the Guarantor a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Guarantor, the Company or any Significant Subsidiary of the Guarantor
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Guarantor, the Company or any Significant Subsidiary of the
Guarantor or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and
in effect for a period of 60 consecutive days; or
(6) the commencement by the Guarantor, the Company or any Significant
Subsidiary of the Guarantor of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any
34
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of
the Guarantor, the Company or any Significant Subsidiary of the Guarantor
in an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Guarantor, the Company or any
Significant Subsidiary of the Guarantor or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Guarantor, the Company or any Significant Subsidiary of the Guarantor
in furtherance of any such action.
Upon receipt by the Trustee of any notice of the type described in clauses
(3) and (4) (a "Notice of Default") from a Holder with respect to Securities,
the Trustee shall establish a record date for determining Holders of Outstanding
Securities entitled to join in such Notice of Default, which record date shall
be at the close of business on the day the Trustee receives such Notice of
Default. The Holders on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to join in such Notice of Default, whether
or not such Holders remain Holders after such record date; provided, that unless
Holders of at least 25% in principal amount of the Outstanding Securities, or
their proxies, shall have joined in such Notice of Default prior to the day
which is 90 days after such record date, such Notice of Default shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving (i) after expiration of such 90-day period, a new Notice
of Default identical to a Notice of Default which has been canceled pursuant to
the proviso to the preceding sentence, or (ii) during any such 90-day period, an
additional Notice of Default with respect to any new or different fact or
circumstance permitting the giving of a Notice of Default with respect, in
either of which events a new record date shall be established pursuant to the
provisions of this Section 501.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal amount of all of the Securities
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of
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the Outstanding Securities, by written notice to the Company, the Guarantor and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of written notice from a Holder declaring such
an acceleration, or rescission and annulment thereof, with respect to
Securities, the Trustee shall establish a record date for determining Holders of
Outstanding Securities entitled to join in such notice, which record date shall
be at the close of business on the day the Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that unless such declaration of
acceleration, or rescission and annulment, as the case may be, shall have become
effective by virtue of the requisite percentage having joined in such notice
prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, (i) after expiration of such 90-day period, a new
written notice of declaration of acceleration or rescission and annulment
thereof, as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso to the preceding sentence, or (ii) during
any such 90-day period, an additional written notice of declaration of
acceleration, or an additional written notice of rescission of annulment of any
declaration of acceleration with respect to any other Event of
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Default, in either of which events a new record date shall be established
pursuant to the provisions of this Section 502.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, the Guarantor or any other obligor upon such Securities and
collect the monies adjudged or decreed to be payable in the manner provided by
law out of the property of the Company, the Guarantor or any other obligor upon
such Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or the Guarantor
(or any other obligor upon the Securities), their property or their creditors,
the Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to file and prove a
claim for the whole amount of principal (premium, if any) and interest owing and
unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or
37
advisable in order to have claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial proceeding,
and to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture, the Securities or the
Guarantees may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively; and
Third: The balance, to the Company and the Guarantor, as the case may
be, or as a court of competent jurisdiction may direct.
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SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities 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;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on, such Security on the respective Stated Maturities of such payments
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Guarantor, the Trustee and
39
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of at least a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities,
provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, expose the Trustee to personal liability or be unduly
prejudicial to Holders not joining therein, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Upon receipt by the Trustee from a Holder of any direction regarding the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or the exercise of any trust or power conferred on the Trustee,
with respect to Securities, the Trustee shall establish a record date for
determining Holders of Outstanding Securities entitled to join in such
direction, which record date shall be at the close of business on the day the
Trustee receives such direction. The Holders on such record date, or their duly
designated proxies, and only such
40
Persons, shall be entitled to join in such direction, whether or not such
Holders remain Holders after such record date; provided, that unless at least a
majority in principal amount shall have been obtained prior to the day which is
90 days after such record date, such direction shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, (i)
after expiration of such 90-day period, a new direction identical to a direction
which has been canceled pursuant to the provisions to the preceding sentence or
(ii) during any such 90-day period a new direction contrary to or different from
such direction, in either of which events a new record date shall be established
pursuant to the provisions of this Section 512.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine 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 arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Trustee, by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities, or by any Holder for the enforcement of the payment
of the principal of or premium or interest on any Security on or after the
Stated Maturity expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
41
The Company and the Guarantor covenant (to the extent that they may
lawfully do so) that they will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
the Guarantor (to the extent that they may lawfully do so) hereby expressly
waive all benefit or advantage of any such law and covenants that they will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision of
this Indenture are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
42
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to
the Securities; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to Securities, the Trustee shall transmit by mail to all Holders of Securities,
as their names and addresses appear in the Security Register, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the
payment of the principal (or premium, if any) or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee of directors or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the Holders of the
Securities; and provided, further, that in the case of any default of the
character specified in Section 501(3) with respect to the Securities, no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, 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 party or parties;
43
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written 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;
(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 or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, 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; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
and the Guarantor, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
44
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee (and its officers, directors, agents and
employees) for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to 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.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310 of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent
45
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign by giving written notice thereof to the Company.
If the instrument of acceptance by a successor Trustee required by Section 611
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
46
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
and shall comply with the applicable requirements of Section 611. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders of
Securities in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and the Guarantor 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, the Guarantor or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, 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, subject
nevertheless to its lien, if any, provided for in Section 607.
(b) Upon request of any such successor Trustee, the Company and the
Guarantor 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 paragraph (a) of this Section, as the case may be.
(c) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company or the
Guarantor.
If and when the Trustee shall be or become a creditor of the Company or the
Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of Section 311 of the Trust Indenture Act regarding
the collection of claims against the Company or the Guarantor (or any such other
obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or repayment thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business and in good standing under
the laws of the United States of America, any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of no less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company and the Guarantor, such resignation
not to take effect until 30 days after the date said written notice is received.
The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company
and the Guarantor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities, as their names and addresses
appear in the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment thereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments pursuant to the provisions
of Section 607.
If an Authenticating Agent is appointed with respect to the Securities
pursuant to this Section, the Securities may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
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This is one of the Securities referred to in the within-mentioned
Indenture.
LASALLE NATIONAL BANK,
As Trustee
By: ____________________________,
As Authenticating Agent
By: ____________________________,
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 15 days after each Regular Record
Date, a list, in such form as such Trustee may reasonably require, of the
names and addresses of the Holders of Securities as of such Regular Record
Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from such list names and addresses received by the Trustee in its
---------
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
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(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company, the Guarantor and the Trustee that neither the Company, the
Guarantor nor the Trustee nor any agent of any of them shall be held accountable
by reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders within 60 days after each June 15
beginning June 15, 1998 such reports dated as of such date, if any, concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act as amended from time to time at the times and in the
manner provided pursuant thereto.
(b) 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 notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company and Guarantor.
The Company and the Guarantor shall:
(a) file with the Trustee, within 15 days after the Company or the
Guarantor, as the case may be, are required to file the same with the
Commission, copies of the annual reports and of the information, documents,
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe)
which the Company or the Guarantor may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company and the Guarantor are not required
to file information, documents, or reports pursuant to either of such
sections, then they will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations; provided, however, that the Company's obligation to
file such information, documents and reports with the Trustee pursuant to
this paragraph (a) shall be suspended for so long as (i) the Company would
be required to file such information, documents and reports with the
Commission but for exemptive relief granted by the Commission allowing such
requirement to be satisfied by filings of such information, documents and
reports by the Guarantor and (ii) the Guarantor complies with any
applicable requirements set forth in such exemptive relief.
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(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance
by the Company and the Guarantor with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules
and regulations; and
(c) transmit by mail to the Holders, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company and the Guarantor pursuant to
(a) and (b) in this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company and Guarantor May Consolidate, Etc., Only on Certain
Terms.
Neither the Guarantor nor the Company shall consolidate with or merge into
any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Guarantor and the Company
shall not permit any Person to consolidate with or merge into the Guarantor or
the Company or convey, transfer or lease its properties and assets substantially
as an entirety to the Guarantor or the Company, unless:
(1) in case the Guarantor shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Guarantor is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of the
Guarantor substantially as an entirety shall be a corporation, partnership
or trust, shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia and
shall expressly guarantee, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and interest
on all the Securities and the performance or observance of every covenant
of this Indenture on the part of the Guarantor to be performed or observed;
(2) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory
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to the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(3) immediately after giving effect to such transaction and treating
any Debt which becomes an obligation of the Guarantor, the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Guarantor, the Company or such Subsidiary at the time of such transaction,
no Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(4) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Guarantor or
Company could become subject to a Mortgage which would not be permitted by
this Indenture, the Guarantor or the Company or such successor Person, as
the case may be, shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(5) the Guarantor or the Company, as the case may be, has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Substituted for the Guarantor.
Upon any consolidation by the Guarantor with, or merger by the Guarantor
into, any other Person, or the conveyance, transfer or lease of the properties
and assets of the Guarantor substantially as an entirety to any Person in
accordance with Section 801, the successor corporation formed by such
consolidation or into which the Guarantor is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Guarantor under this Indenture with the
same effect as if such successor corporation had been named as the Guarantor in
this Indenture; provided, however, that no such conveyance, transfer or lease
shall have the effect of releasing the Person named as the "Guarantor" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner prescribed in this Article from its
obligations hereunder or its liability as obligor on any of the Outstanding
Securities unless, in the case of a conveyance or transfer (but not a lease),
such conveyance or transfer is followed by the complete liquidation of the
Guarantor or such successor corporation and substantially all of the assets of
the Guarantor or such successor corporation immediately following such
conveyance or transfer are equity securities issued by the transferee.
SECTION 803. Successor Substituted for the Company.
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Upon any consolidation of the Company with, or merger of the Company into,
any other Person or the conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantor, when
each is authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the
Guarantor and the assumption by any such successor of the covenants of the
Company or the Guarantor herein, in the Securities and in the Guarantees;
or
(2) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of all Securities or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to secure the Securities; or
(6) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of Securities pursuant to Sections 1202 or 1203; provided,
however, that any such action shall not adversely affect the interests of
the Holders of Securities in any material respect; or
54
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this clause (7) shall not adversely affect the interests of the Holders
of Securities in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company, the Guarantor and the Trustee, the Company, when authorized by a Board
Resolution, the Guarantor, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or interest on,
any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the
55
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company, with Guarantees duly executed by the Guarantor endorsed thereon, and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Securities in accordance
with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange 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
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appoints the Trustee its office or agency for each of said purposes. 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 Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities 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.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of (or premium, if any) or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) and interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or
prior to each due date of the principal of (or premium, if any) or interest on
any Securities, deposit with such Paying Agent(s) a sum sufficient to pay such
principal of (or premium, if any) or interest becoming due, such sum to be held
as provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (or
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) will give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment in respect
of the Securities; and
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(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held
in trust by such Paying Agent for payment in respect of the Securities.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (or premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in each Place of
Payment, or mail to each such Holder, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
(b) The Guarantor will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Guarantor ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Guarantor is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Guarantor shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
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SECTION 1005. Existence.
Subject to Article Eight, the Company and the Guarantor will do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
their respective corporate existence, and (ii) their respective material rights
(charter and statutory); provided, however, that neither the Company nor the
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Guarantor shall be required to preserve any such right if the Board of Directors
of the Company and the Guarantor, as the case may be, shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company or the Guarantor, as the case may be, and that the loss thereof is
not disadvantageous to the Holders in any material respect.
SECTION 1006. Restrictions on Secured Debt.
So long as any Securities are Outstanding, the Company and the Guarantor
will not, and will not permit any Subsidiary to, incur, issue, assume or
guarantee any Debt secured by a Mortgage on any Principal Property of the
Company, the Guarantor or any Subsidiary or any shares of Capital Stock or Debt
of any Subsidiary, without effectively providing that the Securities then
Outstanding (together with, if the Company and the Guarantor shall so determine,
any other Debt of the Company, the Guarantor or such Subsidiary then existing or
thereafter created which is not subordinate to the Securities then Outstanding)
shall be secured equally and ratably with (or, at the option of the Company and
the Guarantor, prior to) such secured Debt, for so long as such secured Debt
shall be so secured; provided, however, that this Section 1006 shall not apply
to:
(1) Mortgages on Principal Property, shares of Capital Stock or Debt
of any corporation existing at the time such corporation becomes a
Subsidiary;
(2) Mortgages on Principal Property or shares of Capital Stock
existing at the time of the acquisition of such Principal Property or
Capital Stock by the Company, the Guarantor or a Subsidiary;
(3) Mortgages to secure the payment of all or any part of the price of
acquisition, construction or improvement of Principal Property or Capital
Stock by the Company, the Guarantor or a Subsidiary, or to secure any Debt
incurred by the Company, the Guarantor or a Subsidiary, prior to, at the
time of, or within 180 days after, the later of the acquisition or
completion of construction (including any improvements on an existing
property), which Debt is incurred for the purpose of financing all or any
part of the purchase, construction or improvement of such Principal
Property;
(4) Mortgages securing any Debt of a Subsidiary owing to the Guarantor
or the Company or to another Subsidiary;
59
(5) Mortgages on property or assets of a corporation existing at the
time such corporation is merged into or consolidated with the Company, the
Guarantor or a Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Company, the Guarantor or a Subsidiary
in accordance with the terms of this Indenture;
(6) Mortgages on property or assets of a Person existing at the time
the Guarantor or the Company is merged into or consolidated with such other
Person or at the time of a sale, lease or other disposition of the
properties of the Guarantor or the Company as an entirety or substantially
as an entirety to such other Persons in accordance with the terms of this
Indenture;
(7) Mortgages on property or assets of the Company, the Guarantor or a
Subsidiary securing Debt issued by the United States of America or any
State thereof or any department, agency or instrumentality or political
subdivision thereof, or by any other country or any political subdivision
thereof, for the purpose of financing all or any part of the purchase price
of (or, in the case of real property, the cost of construction on or
improvement of) any property or assets subject to such Mortgages
(including, but not limited to, Mortgages incurred in connection with
pollution control, industrial revenue or similar financings);
(8) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgages referred
to in the foregoing clauses (1) to (7) inclusive; provided, that the
principal amount of the Debt being extended, renewed or replaced shall not
be increased and such extension, renewal or replacement, in the case of
Debt secured by a Mortgage, shall be limited to all or a part of the same
property, shares of Capital Stock or Debt that secured the Mortgage
extended, renewed or replaced (plus improvements on such property); and
(9) Mortgages not permitted by clauses (1) through (8) above if at the
time of and after giving effect to, the creation or assumption of any such
Mortgage, the aggregate amount of all Debt of the Company, the Guarantor
and the Subsidiaries secured by such Mortgages not so permitted by clauses
(1) through (8) above together with the Attributable Debt in respect of
Sale and Lease-Back Transactions permitted by Section 1007 does not exceed
15% of Consolidated Net Tangible Assets.
The Trustee shall have no duty or liability in monitoring or enforcing the
provisions of this Section, except as otherwise expressly provided in this
Indenture.
SECTION 1007. Restrictions on Sale and Lease-Back Transactions.
So long as any Securities are Outstanding, the Company and the Guarantor
will not, and will not permit any Subsidiary to, enter into any Sale and Lease-
Back Transaction unless:
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(1) the Company, the Guarantor or such Subsidiary would, at the time
of entering into such Sale and Lease-Back Transaction, be entitled to incur
Debt secured by a Mortgage on the Principal Property to be leased in an
amount at least equal to the Attributable Debt in respect of such Sale and
Lease-Back Transaction without equally and ratably securing the Securities
then Outstanding pursuant to Section 1006;
(2) the direct or indirect proceeds of the sale of the Principal
Property to be leased are at least equal to the fair value of such
Principal Property (as determined by the Board of Directors of the
Guarantor) and an amount at least equal to the net proceeds from the sale
of the Principal Property so leased is applied, within 180 days of the
effective date of any such Sale and Lease-Back Transaction:
(a) to the purchase or acquisition of (or, in the case of real
property, the commencement of construction on or improvement of)
property or assets, or
(b) to the retirement or repayment (other than at maturity or
pursuant to a mandatory sinking fund or mandatory redemption
provision) of (1) Securities or Funded Debt of the Company or the
Guarantor ranking on a parity with or senior to the Securities, or
Funded Debt of a Subsidiary or (2) Debt incurred by the Company, the
Guarantor or a Subsidiary within 180 days prior to the effective date
of any such Sale and Lease-Back Transaction that (A) was used solely
to finance the acquisition of the Principal Property that is the
subject of such Sale and Lease-Back Transaction and (B) is secured by
a Mortgage on the Principal Property that is the subject of such Sale
and Lease-Back Transaction; provided, however, that the amount to be
so applied will be reduced by (x) the principal amount of Securities
delivered to the Trustee for retirement and cancellation (other than
at maturity or pursuant to a mandatory sinking fund or mandatory
redemption provision) within 180 days before or after such sale or
transfer and (y) the principal amount of any such Debt of the Company,
the Guarantor or a Subsidiary (other than Securities) voluntarily
retired (other than at maturity or pursuant to a mandatory sinking
fund or mandatory redemption provision) by the Company, the Guarantor
or such Subsidiary within 180 days before or after such sale or
transfer; or
(3) the lease in such Sale and Lease-Back Transaction secures or
relates to Debt or other obligations issued by the United States of America
or any State thereof or any department, agency or instrumentality or
political subdivision thereof, or by any other country or any political
subdivision thereof, for the purpose of financing all or any part of the
purchase price of (or, in the case of real property, the cost of
construction on or improvement of) any property or assets subject to such
leases (including, but not limited to, leases incurred in connection with
pollution control, industrial revenue or similar financings).
The Trustee shall have no duty or liability in monitoring or enforcing the
provisions of this Section, except as otherwise expressly provided in this
Indenture.
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SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 801 and in Sections 1006 to 1007,
inclusive, with respect to the Securities if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the Guarantor and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
The Securities shall be redeemable, in whole or in part, at the Company's
option, under the circumstances and at the Redemption Price specified in the
form of Securities set forth in Sections 202 and 203.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities, the Company shall, at least 40 but not more than
60 days prior to the Redemption Date fixed by the Company (unless shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities to be redeemed.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected by the Trustee within three Business
Days after it receives the notice described in Section 1102, from the
Outstanding Securities not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate. If the Company shall so specify,
Securities owned of record and beneficially by the Guarantor, the Company or any
Subsidiary shall not be included in the Securities selected for redemption.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
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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 Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, in
accordance with Section 106.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that, on the Redemption Date, the Redemption Price will become
due and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, which shall be the office or agency of
the Company in each Place of Payment, and
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
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Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security, without service
charge, a new Security or Securities of any authorized denomination as requested
by such Holder, having endorsed thereon a Guarantee or Guarantees duly executed
by the Guarantor, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a Global
Security is so surrendered, such new Security so issued shall be a new Global
Security.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance. '
The Company may, at its option, evidenced by a Board Resolution, at any
time, elect to have either Section 1202 or 1203 hereof be applied to all
Outstanding Securities upon compliance with the conditions set forth in this
Article Twelve.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this Section
with respect to the Outstanding Securities, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding Securities
on and after the date the conditions
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precedent set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of Outstanding Securities to
receive, solely from the trust fund described in Section 1204 as more fully set
forth in such Section, payments of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (2) the Company's
obligations with respect to such Securities under Section 304, 305, 306, 607,
1002 and 1003 and such obligations as shall be ancillary thereto, (3) the
rights, powers, trusts, duties, immunities and other provisions in respect of
the Trustee hereunder and (4) this Article Twelve. Subject to compliance with
this Article Twelve, the Company may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this Section
with respect to the Outstanding Securities, the Company shall be released from
its obligations under Sections 801, 1006 and 1007, and the occurrence of an
event specified in Clause (3) of Section 501 with respect to any of Sections
801, 1006 or 1007 shall not be deemed to be an Event of Default with respect to
the Outstanding Securities on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or Clause whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or Clause or by reason of any reference to any such Section or Clause to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of either
Section 1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
sufficient, without reinvestment, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereto delivered to the Trustee, to pay and discharge, and which
65
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest on the
Outstanding Securities on the maturity (including a Redemption Date or
Dates established pursuant to this paragraph) of such principal, premium or
interest and (ii) any analogous payments applicable to the Outstanding
Securities on the day on which such payments are due (including a
Redemption Date or Dates established pursuant to this paragraph) in
accordance with the terms of this Indenture and of such Securities. Before
such a deposit, the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in
accordance with Article Eleven, which shall be given effect in applying the
foregoing.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities shall
have occurred and be continuing (A) on the date of such deposit or (B)
insofar as subsections 501(5) and (6) are concerned, at any time during the
period ending on the 91st day after the date of such deposit or, if longer,
ending on the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being understood
that the condition in this condition shall not be deemed satisfied until
the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities to have a conflicting interest as defined in
Section 608 or for purposes of the Trust Indenture Act with respect to any
securities of the Company or (B) result in the trust arising from such
deposit to constitute, unless it is qualified as, a regulated investment
company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound.
(5) In the case of an election under Section 1202, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (B) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance
had not occurred.
(6) In the case of an election under Section 1203, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income
66
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1202
or the covenant defeasance under Section 1203 (as the case may be) have
been complied with.
SECTION 1205. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee; collectively, for purposes for this
Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (but not including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in respect
of principal, premium and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 1204 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 an equivalent defeasance or covenant defeasance.
SECTION 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1202 or 1203 with respect to the Securities 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 this Article Twelve
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 1202 or 1203; provided, however, that if the
Company makes any payment of the principal of (or premium, if any) or interest
on any such Security following 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 money held by the Trustee or the Paying Agent.
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ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS
AND DIRECTORS
SECTION 1301. Immunity of Incorporators, Shareholders, Officers and Directors.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company, the Guarantor or of
any successor corporation, either directly or through the Company or the
Guarantor, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no personal liability whatever shall attach to,
or is or shall be incurred by, the incorporators, shareholders, officers or
directors, as such, of the Company, the Guarantor or any successor corporation,
or any of them, because of the creation of the indebtedness hereby authorized,
or under or by this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, shareholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom are
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of such Securities.
____________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
XXXXXX, INC.
By: /s/ Xxxx X. Panettiere
-------------------------------------------
Name: Xxxx X. Panettiere
Title: President and Chief Executive Officer
Attest:
By: /s/ X.X. Xxxxxx, Xx.
----------------------------
Name: X.X. Xxxxxx, Xx.
Title: Assistant Secretary
XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxx X. Panettiere
------------------------------------
Name: Xxxx X. Panettiere
Title: President and Chief Executive Officer
Attest:
By: /s/ X.X. Xxxxxx, Xx.
---------------------------
Name: X.X. Xxxxxx, Xx.
Title: Assistant Secretary
LA SALLE NATIONAL BANK,
as Trustee
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Assistant Vice President
Attest:
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary
69
STATE OF ALABAMA :
: ss:
COUNTY OF XXXXXXXXXX:
On the 16th day of June 1998, before me personally came Xxxx X. Panettiere,
to me known, who, being by me duly sworn, did depose and say that he is the
President and Chief Executive Officer of Xxxxxx, Inc., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Notary's Signature Illegible
STATE OF ALABAMA :
: ss:
COUNTY OF XXXXXXXXXX:
On the 16th day of June 1998, before me personally came Xxxx X.
Panettiere, to me known, who, being by me duly sworn, did depose and say that he
is the President and Chief Executive Officer of Xxxxxx International, Inc., one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
/s/ Notary's Signature Illegible
70
STATE OF ILLINOIS :
: ss:
COUNTY OF XXXX :
On the 16th day of June, 1998, before me personally came Xxxxxxxx Xxxx, to
me known, who, being by me duly sworn, did depose and say that he is Asst. Vice
President of LaSalle National Bank, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority .
/s/ Xxxxx Xxxxx
71
