EXHIBIT 4.4
================================================================================
SUNTRUST BANKS, INC.
----------------------------------
----------------------------------
INDENTURE
Dated as of November [ ], 2001
----------------------------------
Bank One, N.A.
AS DEBT TRUSTEE
----------------------------------
SUBORDINATED DEBT SECURITIES
================================================================================
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
November ________________, 2001 between SunTrust Banks, Inc. and Bank One, N.A.,
as Debt Trustee:
ACT SECTION INDENTURE SECTION
310(a) (1).................................................... 6.09
(a) (2).................................................... 6.09
(a) (3).................................................... N/A
(a) (4).................................................... N/A
(a) (5).................................................... 6.09
(b)............................................ 6.08, 6.10, 6.11
(c)........................................................ N/A
311(a) and (b)................................................ 6.13
(c)........................................................ N/A
312(a)............................................... 4.01, 4.02(a)
(b)..................................................... 4.02(b)
(c)..................................................... 4.02(c)
313(a)..................................................... 4.04(a)
(b)..................................................... 4.04(a)
(c)..................................................... 4.04(a)
(d)..................................................... 4.04(b)
314(a).................................................. 4.03, 3.05
(b)........................................................ N/A
(c)(1) and (2)............................................. 6.07
(c)(3)..................................................... N/A
(d)........................................................ N/A
(e)........................................................ 6.07
(f)........................................................ N/A
315(a), (c) and (d)........................................... 6.01
(b)........................................................ 5.09
(e)........................................................ 5.10
316(a)........................................................ 1.01
(a)(1)..................................................... 5.08
(a)(2)..................................................... N/A
(b)........................................................ 9.02
(c)........................................................ 7.01
317(a)(1)..................................................... 5.05
(a)(2)..................................................... 5.07
(b)........................................................ 6.05
318(a)........................................................13.08
--------------
THIS TIE-SHEET IS NOT PART OF THIS INDENTURE AS EXECUTED.
TABLE OF CONTENTS*
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions............................................................. 1
Affiliate............................................................... 1
Authenticating Agent.................................................... 1
Bankruptcy Law.......................................................... 1
Board of Directors...................................................... 1
Board Resolution........................................................ 2
Business Day............................................................ 2
Commission.............................................................. 2
Common Securities....................................................... 2
Common Stock............................................................ 2
Company................................................................. 2
Company Request......................................................... 2
Corporate Trust Office.................................................. 2
Custodian............................................................... 2
Debt Security........................................................... 2
Debt Trustee............................................................ 2
Declaration............................................................. 3
Default................................................................. 3
Defaulted Interest...................................................... 3
Definitive Debt Securities.............................................. 3
Depositary.............................................................. 3
Event of Default........................................................ 3
Exchange Act............................................................ 3
Federal Reserve......................................................... 3
Global Debt Security.................................................... 3
Holder.................................................................. 3
Indebtedness............................................................ 3
Indenture............................................................... 4
Institutional Trustee................................................... 4
Interest Payment Date................................................... 4
Mortgage................................................................ 4
Officer................................................................. 4
Officer's Certificate................................................... 4
Opinion of Counsel...................................................... 4
Other Debt Securities................................................... 4
The term outstanding.................................................... 4
Person.................................................................. 5
Predecessor Debt Security............................................... 5
Preferred Securities.................................................... 5
i
Principal Office of the Debt Trustee.................................... 5
Responsible Officer..................................................... 5
Securities Act.......................................................... 5
Security Register....................................................... 5
Senior Indebtedness..................................................... 6
Stated Maturity......................................................... 6
Subsidiary.............................................................. 6
SunTrust Capital Trust.................................................. 6
Trust Indenture Act..................................................... 6
Trust Securities........................................................ 6
U.S. Government Obligations............................................. 6
SECTION 1.02. Business Day Certificate................................................ 7
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally......................................................... 7
SECTION 2.02. Form of Debt Trustee's Certificate of Authentication.................... 7
SECTION 2.03. Amount Unlimited; Issuable in Series.................................... 8
SECTION 2.04. Denomination of Debt Securities......................................... 9
SECTION 2.05. Execution and Authentication............................................ 10
SECTION 2.06. Global Debt Security.................................................... 10
SECTION 2.07. Transfer and Exchange................................................... 11
SECTION 2.08. Replacement Debt Securities............................................. 11
SECTION 2.09. Temporary Debt Securities............................................... 12
SECTION 2.10. Cancellation............................................................ 12
SECTION 2.11. Defaulted Interest...................................................... 13
SECTION 2.12. CUSIP Numbers........................................................... 14
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest............................... 14
SECTION 3.02. Offices for Notices and Payments, etc.................................... 14
SECTION 3.03. Appointments to Fill Vacancies in Debt Trustee's Office.................. 15
SECTION 3.04. Provision as to Paying Agent............................................. 15
SECTION 3.05. Certificate to Debt Trustee.............................................. 16
SECTION 3.06. Payment Upon Resignation or Removal...................................... 16
ARTICLE IV
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE DEBT TRUSTEE
SECTION 4.01. Holders' Lists........................................................... 17
SECTION 4.02. Preservation and Disclosure of Lists..................................... 17
SECTION 4.03. Reports by the Company................................................... 19
SECTION 4.04. Reports by the Debt Trustee.............................................. 20
ARTICLE V
REMEDIES OF THE DEBT TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Events of Default......................................................... 21
SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor...................... 23
SECTION 5.03. Application of Moneys Collected by Debt Trustee........................... 25
SECTION 5.04. Proceedings by Holders.................................................... 25
ii
SECTION 5.05. Proceedings by Debt Trustee................................................ 26
SECTION 5.06. Trustee May File Proofs of Claim........................................... 26
SECTION 5.07. Remedies Cumulative and Continuing......................................... 27
SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders..... 27
SECTION 5.09. Notice of Defaults......................................................... 28
SECTION 5.10. Undertaking to Pay Costs................................................... 29
ARTICLE VI
CONCERNING THE DEBT TRUSTEE
SECTION 6.01. Duties and Responsibilities of Debt Trustee................................ 29
SECTION 6.02. Reliance on Documents, Opinions, etc. Except as otherwise provided
in Section 6.01: ....................................................... 31
SECTION 6.03. No Responsibility for Recitals, etc........................................ 32
SECTION 6.04. Debt Trustee, Authenticating Agent, Paying Agents, Transfer Agents or
Registrar May Own Debt Securities....................................... 33
SECTION 6.05. Moneys to be Held in Trust................................................. 33
SECTION 6.06. Compensation and Expenses of Debt Trustee.................................. 33
SECTION 6.07. Officer's Certificate and Opinion of Counsel as Evidence................... 34
SECTION 6.08. Conflicting Interest of Debt Trustee....................................... 35
SECTION 6.09. Eligibility of Debt Trustee................................................ 35
SECTION 6.10. Resignation or Removal of Debt Trustee..................................... 35
SECTION 6.11. Acceptance by Successor Debt Trustee....................................... 37
SECTION 6.12. Succession by Merger, etc.................................................. 38
SECTION 6.13. Limitation on Rights of Debt Trustee as a Creditor......................... 39
SECTION 6.14. Authenticating Agents...................................................... 39
ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.01. Action by Holders.......................................................... 40
SECTION 7.02. Proof of Execution by Holders.............................................. 41
SECTION 7.03. Who Are Deemed Absolute Owners............................................. 41
SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding.................... 41
SECTION 7.05. Revocation of Consents; Future Holders Bound............................... 42
ARTICLE VIII
HOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings....................................................... 42
SECTION 8.02. Call of Meetings by Debt Trustee........................................... 43
SECTION 8.03. Call of Meetings by Company or Holders..................................... 43
SECTION 8.04. Qualifications for Voting.................................................. 43
SECTION 8.05. Regulations................................................................ 43
SECTION 8.06. Voting..................................................................... 44
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Holders................................................. 44
SECTION 9.02. With Consent of Holders.................................................... 46
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures..... 47
iii
SECTION 9.04. Notation on Debt Securities................................................ 48
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished to
Debt Trustee........................................................... 48
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms........................... 48
SECTION 10.02. Successor Corporation to be Substituted for Company........................ 49
SECTION 10.03. Opinion of Counsel to be Given Debt Trustee................................ 49
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture..................................................... 50
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be Held in Trust
by Debt Trustee........................................................ 50
SECTION 11.03. Paying Agent to Repay Moneys Held.......................................... 51
SECTION 11.04. Return of Unclaimed Moneys................................................. 51
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government Obligations........... 51
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate Obligations................ 53
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors................................................................. 54
SECTION 13.02. Official Acts by Successor Corporation.................................. 54
SECTION 13.03. Surrender of Company Powers................................................ 54
SECTION 13.04. Addresses for Notices, etc................................................. 54
SECTION 13.05. Governing Law.............................................................. 54
SECTION 13.06. Evidence of Compliance with Conditions Precedent........................... 55
SECTION 13.07. Business Days.............................................................. 55
SECTION 13.08. Trust Indenture Act to Control............................................. 55
SECTION 13.09. Table of Contents, Headings, etc........................................... 55
SECTION 13.10. Execution in Counterparts.................................................. 56
SECTION 13.11. Separability............................................................... 56
SECTION 13.12. Assignment................................................................. 56
ARTICLE XIV
REDEMPTION OF DEBT SECURITIES
SECTION 14.01. Applicability of Article................................................... 56
SECTION 14.02. Notice of Redemption; Selection of Debt Securities......................... 56
SECTION 14.03. Payment of Debt Securities Called for Redemption........................... 57
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate................................................... 58
SECTION 15.02. Default on Senior Indebtedness............................................. 58
SECTION 15.03. Liquidation; Dissolution; Bankruptcy....................................... 59
SECTION 15.04. Subrogation................................................................ 60
iv
SECTION 15.05. Debt Trustee to Effectuate Subordination................................... 61
SECTION 15.06. Notice by the Company...................................................... 61
SECTION 15.07. Rights of the Debt Trustee; Holders of Senior Indebtedness................. 62
SECTION 15.08. Subordination May Not Be Impaired.......................................... 63
TESTIMONIUM....................................................................... 79
SIGNATURES ....................................................................... 79
EXHIBIT A ........................................................................ A-1
v
THIS INDENTURE, dated as of November________ , 2001, between SunTrust
Banks, Inc., a Georgia corporation (the "Company"), and Bank One, N.A., a
national banking association, as trustee (the "Debt Trustee"),
WITNESSETH:
In consideration of the premises, and the purchase of the Debt
Securities by the Holders thereof, the Company covenants and agrees with the
Debt Trustee for the equal and proportionate benefit of the respective Holders
from time to time of the Debt Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture shall have the respective meanings specified
in this Section 1.01. All other terms used in this Indenture which are defined
in the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), or
which are by reference therein defined in the Securities Act, shall (except as
herein otherwise expressly provided or unless the context otherwise requires)
have the meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture as originally executed.
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
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. Headings are used for convenience of reference only and do
not affect interpretation. The singular includes the plural and vice versa.
"Affiliate" shall have the meaning given to that term
in Rule 405 under the Securities Act or any successor rule thereunder.
"Authenticating Agent" shall mean any agent or agents
of the Debt Trustee which at the time shall be appointed and acting pursuant
to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or
any similar Federal or State law for the relief of debtors.
"Board of Directors" shall mean either the Board of
Directors of the Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company 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 Debt Trustee.
"Business Day" means a day other than (a) a day on
which banking institutions in New York, New York or Chicago, Illinois are
authorized or required by law or executive order to remain closed or (b) a day
on which the Corporate Trust Office of the Debt Trustee is closed for business.
"Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or if at any time after the execution of this Indenture 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.
"Common Securities" shall mean the common beneficial
ownership interests in the assets of the applicable SunTrust Capital Trust.
"Common Stock" shall mean the Common Stock, par value
$1.00 per share, of the Company or any other class of stock resulting from
changes or reclassifications of such Common Stock consisting solely of changes
in par value, or from par value to no par value, or from no par value to par
value.
"Company" shall mean SunTrust Banks, Inc., a Georgia
corporation, and, subject to the provisions of Article X, shall include its
successors and assigns.
"Company Request" or "Company Order" shall mean a
written request or order signed in the name of the Company by the Chairman, the
Chief Executive Officer, the President, a Vice Chairman, a Vice President, the
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Debt Trustee.
"Corporate Trust Office" means, when used with
respect to the Debt Trustee, the Principal Office of the Debt Trustee.
"Custodian" shall mean any receiver, trustee,
assignee, liquidator, or similar official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" means any Debt
Security or Debt Securities, as the case may be, authenticated and delivered
under this Indenture.
"Debt Trustee" shall mean the Person identified as
"Debt Trustee" in the first paragraph hereof, and, subject to the provisions of
Article VI hereof, shall also include its successors and assigns and, if at any
time there is more than one Person acting in such capacity hereunder, "Trustee"
shall mean each such Person acting
2
as Debt Trustee hereunder. The term "Debt Trustee" as used with respect to a
particular series of the Debt Securities shall mean the trustee with respect to
that series.
"Declaration" shall mean, with respect to a SunTrust
Capital Trust, the Declaration of Trust, as amended, of such SunTrust Capital
Trust.
"Default" means any event, act or condition that with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the same meaning set
forth in Section 2.11.
"Definitive Debt Securities" shall mean those
securities issued in fully registered certificated form not otherwise in global
form.
"Depositary" shall mean, with respect to the Debt
Securities, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Exchange Act
or other applicable statute or regulation, as designated by the Company.
"Event of Default" shall mean any event specified in
Section 5.01, continued for the period of time, if any, and after the giving
of the notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time.
"Federal Reserve" shall mean the Board of Governors
of the Federal Reserve System.
"Global Debt Security" shall mean, with respect to
any series of Debt Securities, a Debt Security executed by the Company and
delivered by the Debt Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture, which shall be registered in
the name of the Depositary or its nominee.
"Holder" shall mean any Person in whose name at the
time a particular Debt Security is registered on the Security Register kept by
the Company or the Debt Trustee for that purpose in accordance with the terms
hereof.
"Indebtedness" shall mean (i) every obligation of the
Company for money borrowed; (ii) every obligation of the Company evidenced
by bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of the Company with respect to letters of
credit, banker's acceptances or similar facilities issued for the account of the
Company; (iv) every obligation of the Company issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of the Company; (vi) every obligation of
3
the Company for claims in respect of derivative products, including interest
rate, foreign exchange rate and commodity forward contracts, options and swaps
and other similar arrangements; and (vii) every obligation of the type referred
to in clauses (i) through (vi) of another Person and all dividends of another
Person the payment of which, in either case, the Company has guaranteed or is
responsible or liable for, directly or indirectly, as obligor or otherwise.
"Indenture" shall mean this instrument as originally
executed or, if amended or supplemented as herein provided, as so amended or
supplemented.
"Institutional Trustee" shall mean, with respect to a
SunTrust Capital Trust, the trustee acting as such Institutional Trustee
under the Declaration of such SunTrust Capital Trust.
"Interest Payment Date" means, when used with respect
to any series of Debt Securities, the Stated Maturity of an installment of
interest on such Debt Securities.
"Mortgage" shall mean and include any mortgage,
pledge, lien, security interest, conditional sale or other title retention
agreement or other similar encumbrance.
"Officer" shall mean any of the Chairman, the Chief
Executive Officer, the President, a Vice President, the Chief Financial Officer,
the Secretary or an Assistant Secretary of the Company.
"Officer's Certificate" shall mean a certificate
signed by an Officer and delivered to the Debt Trustee. Each such certificate
shall include the statements provided for in Section 13.06 if and to the extent
required by the provisions thereof.
"Opinion of Counsel" shall mean a written opinion of
counsel, who may be an employee of the Company, and who shall be reasonably
acceptable to the Debt Trustee. Each such opinion shall include the statements
provided for in Section 13.06 if and to the extent required by the provisions
thereof.
"Other Debt Securities" means all junior subordinated
debt securities issued by the Company from time to time under the Indenture.
The term "outstanding" when used with reference to
the Debt Securities, shall mean, subject to the provisions of Section 7.04, as
of any particular time, all Debt Securities authenticated and delivered by the
Debt Trustee or the Authenticating Agent under this Indenture, except
(a) Debt Securities theretofore cancelled by the
Debt Trustee or the Authenticating Agent or
delivered to the Debt Trustee for
cancellation or that have previously been
cancelled;
(b) Debt Securities, or portions thereof, for
the payment or prepayment or redemption of
which
4
moneys in the necessary amount shall have
been deposited in trust with the Debt
Trustee or with any paying agent (other than
the Company) or shall have been set aside
and segregated in trust by the Company (if
the Company shall act as its own paying
agent); provided that, if such Debt
Securities, or portions thereof, are to be
redeemed prior to maturity thereof, notice
of such redemption shall have been given as
set forth in Article XIV or provision
satisfactory to the Debt Trustee shall have
been made for giving such notice; and
(c) Debt Securities in lieu of or in
substitution for which other Debt Securities
shall have been authenticated and delivered
pursuant to the terms of Section 2.08 unless
proof satisfactory to the Company and the
Debt Trustee is presented that any such Debt
Securities are held by bona fide holders in
due course.
"Person" shall mean any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Predecessor Debt Security" of any particular Debt
Security means every previous Debt Security evidencing all or a portion of the
same debt and as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and delivered under
Section 2.08 in lieu of a lost, destroyed or stolen Debt Security shall be
deemed to evidence the same debt as the lost, destroyed or stolen Debt -
Security.
"Preferred Securities" shall mean the preferred
beneficial ownership interests in the assets of the applicable SunTrust Capital
Trust.
"Principal Office of the Debt Trustee", or other
similar term, shall mean the office or offices of the Debt Trustee, at which at
any particular time its corporate trust business shall be administered, and
which at the date hereof are located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"Responsible Officer" shall mean any officer of the
Debt Trustee's Corporate Trust Administration department with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
"Securities Act" shall mean the Securities Act of
1933, as amended from time to time.
"Security Register" shall mean the list of Holders
provided to the Debt Trustee pursuant to Section 4.01, or any security
5
register maintained by a security registrar for the Debt Securities appointed by
the Company following the execution of a supplemental indenture providing for
transfer procedures as provided for in Section 2.06(a).
"Senior Indebtedness" shall mean the principal of,
premium, if any, and interest on, all Indebtedness, whether outstanding on the
date of execution of this Indenture or hereafter created, assumed or incurred,
except Indebtedness that by its terms is expressly stated to be not superior in
right of payment to the Debt Securities or to rank pari passu with the Debt
Securities, and any deferrals, renewals or extensions of such Senior
Indebtedness.
"Stated Maturity" means, when used with respect to
any Debt Security, or any installment of principal thereof or interest thereon,
the date specified in such Debt Security as the fixed date on which principal of
such Debt Security, or such installment of principal or interest, is due and
payable.
"Subsidiary" shall mean with respect to any Person,
(i) any corporation at least a majority of the outstanding voting stock of
which is owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned by
such Person, or by one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries and (iii) any limited partnership of which such Person
or any of its Subsidiaries is a general partner. For the purposes of this
definition, "voting stock" means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests, participations or
other equivalents having such power only by reason of the occurrence of a
contingency.
"SunTrust Capital Trust" shall mean each of SunTrust
Capital V and SunTrust Capital VI, each a Delaware statutory business trust, or
any other similar trust created for the purpose of issuing Trust Securities in
connection with the issuance of Debt Securities under this Indenture. "Trust
Indenture Act" shall mean the Trust Indenture Act of 1939, as amended from time
to time.
"Trust Indenture Act" shall mean the Trust Indenture
Act of 1939, as amended from time to time.
"Trust Securities" shall mean the Common Securities
and Preferred Securities of the applicable SunTrust Capital Trust.
"U.S. Government Obligations" shall mean securities
that are (i) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case under clauses (i) or (ii) are not callable or prepayable at the
option of the
6
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
SECTION 1.02. Business Day Certificate.
On the date of execution and delivery of this
Indenture (with respect to the remainder of calendar year 2001) and thereafter,
within 15 days prior to the end of each calendar year while this Indenture
remains in effect (with respect to the succeeding calendar years), the Company
shall deliver to the Debt Trustee an Officer's Certificate specifying the days
on which banking institutions or trust companies in New York, New York or
Chicago, Illinois are authorized or obligated by law or executive order to be
closed.
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally.
The Debt Securities of each series shall be in
substantially the form as shall be established by or pursuant to a Board
Resolution and as set forth in an Officer's Certificate of the Company or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or with
any rules of any securities exchange or all as may, consistently herewith, be
determined by the officers executing such Debt Securities, as evidenced by their
execution of such Debt Securities.
The definitive Debt Securities shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by their execution of such Debt Securities.
SECTION 2.02. Form of Debt Trustee's Certificate
of Authentication.
The Debt Trustee's Certificate of Authentication on
all Debt Securities shall be in substantially the following form:
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
7
Bank One, N.A.,
as Debt Trustee
By:
------------------------------------------
Authorized Officer
SECTION 2.03. Amount Unlimited; Issuable in
Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited. The Debt
Securities may be issued in one or more series up to the aggregate principal
amount of securities of that series from time to time authorized by or pursuant
to a Board Resolution of the Company or pursuant to one or more indentures
supplemental hereto. Prior to the initial issuance of Debt Securities of any
series, there shall be established in or pursuant to a Board Resolution of the
Company and set forth in an Officer's Certificate of the Company or established
in one or more indentures supplemental:
(i) the title of the Debt Securities of
the series (which shall distinguish the Debt Securities of the series
from all other Debt Securities);
(ii) any limit upon the aggregate
principal amount of the Debt Securities of the series which may be
authenticated and delivered under this Indenture (except for Debt
Securities authenticated and delivered upon registration of, transfer
of, or in exchange for, or in lieu of, other Debt Securities of the
series pursuant hereto);
(iii) the date of dates on which the
principal of and premium, if any, on the Debt Securities of the series
is payable;
(iv) the rate or rates at which the Debt
Securities of the series shall bear interest, if any, or the method by
which such interest may be determined, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such
interest shall be payable or the manner of determination of such
Interest Payment Dates and the record dates for the determination of
holders to whom interest is payable on any such Interest Payment Dates;
(v) the place or places where the
principal of, premium, if any, and any interest on Debt Securities of
the series shall be payable;
(vi) the right, if any, to extend the
interest payment periods and the duration of such extension;
(vii) the price or prices at which, the
period or periods within which, the event or events giving rise to, and
the terms and conditions upon which Debt Securities of the series
8
may be redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise;
(viii) the obligation, if any, of the
Company to redeem or purchase Debt Securities of the series pursuant to
any sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices at which, and the period or periods
within which, and the terms and conditions upon which, Debt Securities
of the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(ix) if other than denominations of
$1,000 and any integral multiple thereof, the denominations in which
Debt Securities of the series shall be issuable;
(x) any Events of Default with respect
to the Debt Securities of a particular series, if not set forth herein;
(xi) the form of the Debt Securities of
the series including the form of the Certificate of Authentication of
such series;
(xii) any trustee, authenticating or
paying agents, warrant agents, transfer agents or registrars with
respect to the Debt Securities of such series;
(xiii) whether the Debt Securities of the
series shall be issued in whole or in part in the form of one or more
Global Debt Securities and, in such case, the Depositary for such
Global Debt Security or Global Debt Securities, and whether beneficial
owners of interests in any such Global Debt Securities may exchange
such interests for other Debt Securities of such series in the manner
provided in Section 2.07, and the manner and the circumstances under
which and the place or places where any such exchanges may occur if
other than in the manner provided in Section 2.07, and any other terms
of the series relating to the global nature of the Global Debt
Securities of such series and the exchange, registration or transfer
thereof and the payment of any principal, premium, if any, or interest
thereon; and
(xiv) any other terms of the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
All Debt Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise be
provided in or pursuant to such resolution of the Board of Directors or in any
such indenture supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution of the Company, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Debt Trustee at or prior
to the delivery of the Officer's Certificate of the Company setting forth the
terms of the series.
SECTION 2.04. Denomination of Debt Securities.
9
The Debt Securities of each series shall be issuable
as registered Debt Securities without coupons and in such denominations as
shall be specified as contemplated by Section 2.03. Subject to Section 2.03(ix),
the Debt Securities of such series shall be issuable in the denominations of
$1,000 and any integral multiple thereof. The Debt Securities shall be numbered,
lettered, or otherwise distinguished in such manner or in accordance with such
plans as the officers of the Company executing the same may determine with the
approval of the Debt Trustee as evidenced by the execution and authentication
thereof.
SECTION 2.05. Execution and Authentication.
Two Officers shall sign the Debt Securities for the
Company by manual or facsimile signature. If an Officer whose signature is on a
Debt Security no longer holds that office at the time the Debt Security is
authenticated, the Debt Security shall nevertheless be valid.
A Debt Security shall not be valid until
authenticated by the manual signature of the Debt Trustee. The signature of the
Debt Trustee shall be conclusive evidence that the Debt Security has been
authenticated under this Indenture. The form of Debt Trustee's certificate of
authentication to be borne by the Debt Securities shall be substantially as set
forth in Exhibit A hereto.
SECTION 2.06. Global Debt Security.
(a) A Global Debt Security with respect to any
series may be transferred, in whole but not in part, only to another nominee of
the Depositary, or to a successor Depositary selected or approved by the Company
or to a nominee of such successor Depositary.
(b) If at any time the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary or the
Depositary has ceased to be a clearing agency registered under the Exchange Act,
and a successor Depositary is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such condition, as the case
may be, the Company will execute, and the Debt Trustee, upon receipt of a
Company Order, will authenticate and make available for delivery the Definitive
Debt Securities, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debt Security, in exchange
for such Global Debt Security. If there is an Event of Default, the Depositary
shall have the right to exchange the Global Debt Securities for Definitive Debt
Securities. In addition, the Company may at any time determine that the Debt
Securities of any series shall no longer be represented by a Global Debt
Security. In the event of such an Event of Default or such a determination, the
Company shall execute, and subject to this Section 2.06, the Debt Trustee, upon
receipt of an Officer's Certificate evidencing such determination by the Company
and a Company Order, will authenticate and make available for delivery the
Definitive Debt Securities of such series, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global Debt
Security in exchange for such Global Debt Security. Upon the exchange of the
Global Debt Security for such Definitive Debt Securities, in authorized
10
denominations, the Global Debt Security shall be cancelled by the Debt Trustee.
Such Definitive Debt Securities issued in exchange for the Global Debt Security
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Debt Trustee. The Debt Trustee shall deliver such
Definitive Debt Securities to the Depositary for delivery to the Persons in
whose names such Definitive Debt Securities are so registered.
SECTION 2.07. Transfer and Exchange.
To permit registrations of transfers and exchanges,
the Company shall execute and the Debt Trustee shall authenticate Definitive
Debt Securities and Global Debt Securities at the request of the Security
Registrar. All Definitive Debt Securities and Global Debt Securities issued upon
any registration of transfer or exchange of Definitive Debt Securities or Global
Debt Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Definitive Debt Securities or Global Debt Securities surrendered upon such
registration of transfer or exchange.
No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
The Company shall not be required to (i) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before the day of mailing of
a notice of prepayment or any notice of selection of Debt Securities of such
series for prepayment under Article XIV hereof and ending at the close of
business on the day of such mailing; or (ii) register the transfer of or
exchange any Debt Security of such series so selected for prepayment in whole or
in part, except the unredeemed portion of any Debt Security being prepaid in
part.
Prior to due presentment for the registration of a
transfer of any Debt Security, the Debt Trustee, the Company and any agent of
the Debt Trustee or the Company may deem and treat the Person in whose name any
Debt Security is registered as the absolute owner of such Debt Security for the
purpose of receiving payment of principal of, premium, if any, and interest on
such Debt Securities, and none of the Debt Trustee, the Company and any agents
of the Debt Trustee or the Company shall be affected by notice to the contrary.
SECTION 2.08. Replacement Debt Securities.
If any mutilated Debt Security is surrendered to the
Debt Trustee, or the Company and the Debt Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security, and there
is delivered to the Company and the Debt Trustee such security or indemnity as
may be required by each of them to save each of them harmless, then the Company
shall issue and the Debt Trustee shall authenticate a replacement Debt Security
if the Debt Trustee's requirements for replacements of Debt Securities are met.
An
11
indemnity bond must be supplied by the Holder that is sufficient in the
reasonable judgment of the Debt Trustee and the Company to protect the Company,
the Debt Trustee, any agent thereof or any authenticating agent from any loss
that any of them may suffer if a Debt Security is replaced. The Company or the
Debt Trustee may charge for its expenses in replacing a Debt Security.
Every replacement Debt Security is an obligation of
the Company and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Debt Securities duly issued
hereunder.
SECTION 2.09. Temporary Debt Securities.
Pending the preparation of Definitive Debt Securities
of any series, the Company may execute, and upon receipt of a Company Order
the Debt Trustee shall authenticate and make available for delivery, temporary
Debt Securities of such series that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized denomination,
substantially of the tenor of the Definitive Debt Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Debt Securities may
determine, as conclusively evidenced by their execution of such Debt Securities.
If temporary Debt Securities of any series are
issued, the Company shall cause Definitive Debt Securities to be prepared
without unreasonable delay. The Definitive Debt Securities of such series shall
be printed, lithographed or engraved, or provided by any combination thereof, or
in any other manner permitted by the rules and regulations of any applicable
securities exchange, all as determined by the officers executing such Definitive
Debt Securities. After the preparation of Definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
Definitive Debt Securities upon surrender of such temporary Debt Securities at
the office or agency maintained by the Company for such purpose pursuant to
Section 3.02 hereof, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debt Securities of any series, the
Company shall execute, and the Debt Trustee shall authenticate and make
available for delivery, in exchange therefor the same aggregate principal amount
of Definitive Debt Securities of such series of authorized denominations. Until
so exchanged, the temporary Debt Securities shall in all respects be entitled to
the same benefits under this Indenture as Definitive Debt Securities.
SECTION 2.10. Cancellation.
Unless otherwise provided with respect to a series of
Debt Securities, all Debt Securities and coupons surrendered for payment,
registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Debt Trustee, be delivered to the Debt
Trustee. All Debt Securities so delivered or surrendered directly to the Debt
Trustee for any such purpose shall be promptly cancelled by it. The Company may
at any time, deliver to the Debt Trustee for cancellation any Debt Securities
previously
12
authenticated and delivered hereunder that the Company may have acquired in any
manner whatsoever, and all Debt Securities so delivered shall be promptly
cancelled by the Debt Trustee. No Debt Security shall be authenticated in lieu
of or in exchange for any Debt Security cancelled as provided in this Section,
except as expressly permitted by this Indenture or such Debt Securities. All
cancelled Debt Securities or coupons held by the Debt Trustee shall be disposed
of by the Debt Trustee in accordance with its customary procedures and the Debt
Trustee shall deliver a certificate of such disposition to the Company. The
Company may not issue new Debt Securities to replace Debt Securities that have
been prepaid or paid or that have been delivered to the Debt Trustee for
cancellation.
SECTION 2.11. Defaulted Interest.
Any interest on any Debt Security that 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 shall be paid by the Company, at its election, as
provided in clause (a) or clause (b) below:
(a) The Company may make payment of any
Defaulted Interest on Debt Securities of any series to the Persons in whose
names such Debt Securities (or their respective Predecessor Debt 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 Debt Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Debt Security and the date of the
proposed payment, and at the same time the Company shall deposit with the Debt
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 Debt 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
Debt Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the Debt
Trustee of the notice of the proposed payment. The Debt 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 at his or her 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 mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Debt Securities (or their respective
Predecessor Debt Securities) are registered on such special record date and
shall be no longer payable pursuant to the following clause (b).
(b) The Company may make payment of any
Defaulted Interest on any Debt Securities in any other lawful manner not
13
inconsistent with the requirements of any securities exchange on which such Debt
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Debt Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Debt Trustee.
SECTION 2.12. CUSIP Numbers.
The Company in issuing the Debt Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Debt Trustee shall
use "CUSIP" numbers in notices of prepayment as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debt Securities or as
contained in any notice of a prepayment and that reliance may be placed only on
the other identification numbers printed on the Debt Securities, and any such
prepayment shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Debt Trustee of any change in the CUSIP
numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and
Interest.
The Company covenants and agrees for the benefit of
each series of Debt Securities that it will duly and punctually pay or cause
to be paid the principal of, premium, if any, and interest on the Debt
Securities of such series at the place, at the respective times and in the
manner provided herein and established with respect to such Debt Securities.
Except as may be provided in a supplemental indenture hereto with respect to any
series of Debt Securities, each installment of interest on such Debt Securities
may be paid by mailing checks for such interest payable to the order of the
Holder entitled thereto as they appear in the Security Register.
SECTION 3.02. Offices for Notices and Payments,
etc.
So long as any Debt Securities of any series remain
outstanding, the Company will maintain (or cause to be maintained) in New
York, New York an office or agency where the Debt Securities of such series may
be presented for payment, an office or agency where the Debt Securities of such
series may be presented for registration of transfer and for exchange as
provided in this Indenture and an office or agency where notices and demands to
or upon the Company in respect of the Debt Securities of such series or of this
Indenture may be served. The Company will give to the Debt Trustee written
notice of the location of any such office or agency and of any change of
location thereof. Until otherwise designated from time to time by the Company in
a notice to the Debt Trustee, any such office or agency for all of the above
purposes shall be the Principal Office of the Debt Trustee. In case the Company
shall fail to maintain any such office or agency in New York, New York, or shall
fail to give such notice of the location
14
or of any change in the location thereof, presentations and demands may be made
and notices may be served at the Principal Office of the Debt Trustee.
In addition to any such office or agency, the Company
may from time to time designate one or more offices or agencies outside New
York, New York, where the Debt Securities may be presented for payment,
registration of transfer and for exchange in the manner provided in this
Indenture, and the Company may from time to time rescind such designation, as
the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency in New York, New York, for the
purposes above mentioned. The Company will give to the Debt Trustee prompt
written notice of any such designation or rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in
Debt Trustee's Office.
The Company, whenever necessary to avoid or fill a
vacancy in the office of Debt Trustee, will appoint, in the manner provided in
Section 6.10, a Debt Trustee, so that there shall at all times be a Debt Trustee
hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent
other than the Debt Trustee with respect to
the Debt Securities of any series, it will
cause such paying agent to execute and
deliver to the Debt Trustee an instrument in
which such agent shall agree with the Debt
Trustee, subject to the provision of this
Section 3.04,
(1) that it will hold all sums held by
it as such agent for the payment of
the principal of, premium, if any,
or interest on the Debt Securities
of such series (whether such sums
have been paid to it by the Company
or by any other obligor on the Debt
Securities) in trust for the
benefit of the Holders thereof; and
(2) that it will give the Debt Trustee
notice of any failure by the
Company (or by any other obligor on
the Debt Securities of such series)
to make any payment of the
principal of, premium, if any, or
interest on the Debt Securities of
such series when the same shall be
due and payable.
(b) If the Company shall act as its own paying
agent, it will, on or before each due date
of
15
the principal of, premium, if any, or
interest on the Debt Securities of any
series, set aside, segregate and hold in
trust for the benefit of the Holders a sum
sufficient to pay such principal, premium or
interest so becoming due and will notify the
Debt Trustee of any failure to take such
action and of any failure by the Company (or
by any other obligor under the Debt
Securities) to make any payment of the
principal of, premium, if any, or interest
on the Debt Securities of such series when
the same shall become due and payable.
(c) Anything in this Section 3.04 to the
contrary notwithstanding, the Company may,
at any time, for the purpose of obtaining a
satisfaction and discharge with respect to
the Debt Securities of any series hereunder,
or for any other reason, pay or cause to be
paid to the Debt Trustee all sums held in
trust for such Debt Securities by the Debt
Trustee or any paying agent hereunder, as
required by this Section 3.04, such sums to
be held by the Debt Trustee upon the trusts
herein contained.
(d) Anything in this Section 3.04 to the
contrary notwithstanding, the agreement to
hold sums in trust as provided in this
Section 3.04 is subject to Sections 11.03
and 11.04.
SECTION 3.05. Certificate to Debt Trustee.
The Company will deliver to the Debt Trustee on or
before 120 days after the end of each fiscal year of the Company, so long as
Debt Securities of any series are outstanding hereunder, an Officer's
Certificate, one of the signers of which shall be the principal executive,
principal financial or principal accounting officer of the Company, stating that
in the course of the performance by the signers of their duties as officers of
the Company they would normally have knowledge of any default by the Company in
the performance of any covenants contained herein, stating whether or not they
have knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature thereof. For purposes of this
Section 3.05, default shall be determined without regard to any period of grace
or requirement of notice provided for herein.
SECTION 3.06. Payment Upon Resignation or
Removal.
Upon termination of this Indenture or the removal or
resignation of the Debt Trustee, unless otherwise stated, the Company shall
pay to the Debt Trustee all amounts accrued and owing to the date of such
termination, removal or resignation.
16
ARTICLE IV
HOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE DEBT TRUSTEE
SECTION 4.01. Holders' Lists.
So long as Debt Securities of any series are
outstanding hereunder, the Company covenants and agrees that it will furnish or
cause to be furnished to the Debt Trustee:
(a) on a semi-annual basis on each alternating
regular record date for the Debt Securities
of such series a list, in such form as the
Debt Trustee may reasonably require, of the
names and addresses of the Holders as of
such record date; and
(b) at such other times as the Debt 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, except that no such
lists need be furnished so long as the Debt
Trustee is in possession thereof by reason
of its acting as registrar for the Debt
Securities.
SECTION 4.02. Preservation and Disclosure of
Lists.
(a) The Debt Trustee shall preserve, in as
current a form as is reasonably practicable,
all information as to the names and
addresses of the Holders (1) contained in
the most recent list furnished to it as
provided in Section 4.01 or (2) received by
it in the capacity of registrar for the Debt
Securities of such series (if so acting)
hereunder. The Debt Trustee may destroy any
list furnished to it as provided in Section
4.01 upon receipt of a new list so
furnished.
(b) In case three or more Holders (hereinafter
referred to as "applicants") apply in
writing to the Debt Trustee and furnish to
the Debt Trustee reasonable proof that each
such applicant has owned a Debt Security for
a period of at least six months preceding
the date of such application, and such
application states that the applicants
desire to communicate with other Holders or
with Holders of all Debt Securities of such
series with respect to their rights under
this Indenture and is accompanied by a copy
of the form of proxy or other communication
which such
17
applicants propose to transmit, then the
Debt Trustee shall within 5 Business Days
after the receipt of such application, at
its election, either:
(1) afford such applicants
access to the information
preserved at the time by
the Debt Trustee in
accordance with the
provisions of subsection
(a) of this Section 4.02,
or
(2) inform such applicants as
to the approximate number
of Holders of all Debt
Securities of such series,
whose names and addresses
appear in the information
preserved at the time by
the Debt Trustee in
accordance with the
provisions of subsection
(a) of this Section 4.02,
and as to the approximate
cost of mailing to such
Holders the form of proxy
or other communication, if
any, specified in such
application.
If the Debt Trustee shall elect not
to afford such applicants access to such
information, the Debt Trustee shall, upon
the written request of such applicants, mail
to each Holder whose name and address appear
in the information preserved at the time by
the Debt Trustee in accordance with the
provisions of subsection (a) of this Section
4.02, a copy of the form of proxy or other
communication which is specified in such
request with reasonable promptness after a
tender to the Debt Trustee of the material
to be mailed and of payment, or provision
for the payment, of the reasonable expenses
of mailing, unless within five Business Days
after such tender, the Debt Trustee shall
mail to such applicants and file with the
Commission, together with a copy of the
material to be mailed, a written statement
to the effect that, in the opinion of the
Debt Trustee, such mailing would be contrary
to the best interests of the Holders of such
series of Debt Securities or all Debt
Securities of such series, as the case may
be, or would be in violation of applicable
law. Such written statement shall specify
the basis of such opinion. If the
Commission, after opportunity for a hearing
18
upon the objections specified in the written
statement so filed, shall enter an order
refusing to sustain any of such objections
or if, after the entry of an order
sustaining one or more of such objections,
the Commission shall find, after notice and
opportunity for hearing, that all the
objections so sustained have been met and
shall enter an order so declaring, the Debt
Trustee shall mail copies of such material
to all such Holders with reasonable
promptness after the entry of such order and
the renewal of such tender; otherwise the
Debt Trustee shall be relieved of any
obligation or duty to such applicants
respecting their application.
(c) Each and every Holder, by receiving and
holding Debt Securities, agrees with the
Company and the Debt Trustee that neither
the Company nor the Debt Trustee nor any
paying agent shall be held accountable by
reason of the disclosure of any such
information as to the names and addresses of
the Holders in accordance with the
provisions of subsection (b) of this Section
4.02, regardless of the source from which
such information was derived, and that the
Debt Trustee shall not be held accountable
by reason of mailing any material pursuant
to a request made under said subsection (b).
SECTION 4.03. Reports by the Company.
So long as Debt Securities of any series are
outstanding hereunder:
(a) The Company covenants and agrees to file
with the Debt Trustee, within 15 days after
the date on which the Company is 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
said Commission may from time to time by
rules and regulations prescribe) which the
Company may be required to file with the
Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the
Company is not required to file information,
documents or reports pursuant to either of
such sections, then to provide to the Debt
Trustee, such of the supplementary and
periodic information, documents and reports
which would have been required pursuant to
Section 13 of the Exchange Act 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.
19
(b) The Company covenants and agrees to file
with the Debt Trustee and the Commission, in
accordance with the rules and regulations
prescribed from time to time by said
Commission, unless exempted from such
reporting requirements by the Commission
such additional information, documents and
reports with respect to compliance by the
Company with the conditions and covenants
provided for in this Indenture as may be
required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit
by mail to all Holders, as the names and
addresses of such Holders appear upon the
Security Register, within 30 days after the
filing thereof with the Debt Trustee, such
summaries of any information, documents and
reports required to be filed by the Company
pursuant to subsections (a) and (b) of this
Section 4.03 as may be required by rules and
regulations prescribed from time to time by
the Commission.
(d) Delivery of such reports, information and
documents to the Debt Trustee is for
informational purposes only and the Debt
Trustee's receipt of such shall not
constitute constructive notice of any
information contained therein or
determinable from information contained
therein, including the Company's compliance
with any of its covenants hereunder (as to
which the Debt Trustee is entitled to rely
exclusively on Officer's Certificates).
SECTION 4.04. Reports by the Debt Trustee.
So long as Debt Securities of any series are
outstanding hereunder:
(a) The Debt Trustee shall transmit to Holders
such reports concerning the Debt Trustee and
its actions under this Indenture as may be
required pursuant to the Trust Indenture Act
at the times and in the manner provided
pursuant thereto. If required by Section
313(a) of the Trust Indenture Act, the Debt
Trustee shall, within sixty days after each
December 31, commencing December 31, 2001,
deliver to Holders a brief report, dated as
of such December 31, which complies with the
provisions of Section 313(a) of the Trust
Indenture Act.
(b) A copy of each such report shall, at the
time of such transmission to Holders, be
filed by the Debt Trustee with each stock
exchange, if
20
any, upon which the Debt Securities are
listed, with the Commission and with the
Company. The Company will promptly notify
the Debt Trustee if and when the Debt
Securities are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE DEBT TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
One or more of the following events of default shall
constitute an Event of Default hereunder with respect to Debt Securities of a
particular series (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) unless it is either inapplicable to
a particular series or specifically deleted or modified in a supplemental
indenture (or Board Resolution) under which such series of Debt Securities is
issued or in the form of Debt Securities for such series:
(a) default in the payment of any interest on
the Debt Securities of that series or any
Other Debt Securities when due, and
continuance of such default for a period of
30 days; provided, however, that a valid
extension of an interest payment period by
the Company in accordance with the terms
hereof shall not constitute a default in the
payment of interest for this purpose; or
(b) default in the payment of any principal of
or premium, if any, on the Debt Securities
of that series or any Other Debt Securities
when due whether at maturity, upon
prepayment, by declaration of acceleration
of maturity or otherwise; or
(c) default in the performance, or breach, of
any covenant or warranty of the Company with
respect to that series contained in such
Debt Securities or otherwise established
with respect to that series of Debt
Securities pursuant to Section 2.01 or
contained in this Indenture (other than a
covenant or warranty a default in whose
performance or whose breach is elsewhere in
this Section specifically dealt with and
other than a covenant or warranty set forth
in terms of any particular series of Debt
Securities established or contemplated in
this Indenture), and continuance of such
default or breach for a period of 90 days
after there has
21
been given, by registered or certified mail,
to the Company by the Debt Trustee or to the
Company and the Debt Trustee by the Holders
of at least 25% in aggregate principal
amount of the outstanding Debt 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
(d) a court having jurisdiction in the premises
shall enter a decree or order for relief in
respect of the Company in an involuntary
case under any applicable bankruptcy,
insolvency or other similar law now or
hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official)
of the Company or for any substantial part
of its property, or ordering the winding-up
or liquidation of its affairs and such
decree or order shall remain unstayed and in
effect for a period of 90 consecutive days;
or
(e) the Company shall commence a voluntary case
under any applicable bankruptcy, insolvency
or other similar law now or hereafter in
effect, shall consent to the entry of an
order for relief in an involuntary case
under any such law, or shall consent to the
appointment of or taking possession by a
receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar
official) of the Company or of any
substantial part of its property, or shall
make any general assignment for the benefit
of creditors, or shall fail generally to pay
its debts as they become due.
If an Event of Default with respect to Debt
Securities of a particular series at the time outstanding occurs and is
continuing, then in every such case the Debt Trustee or the Holders of not less
than 25% in aggregate principal amount of the Debt Securities of such series
then outstanding may declare the principal amount of all Debt Securities of such
series to be due and payable immediately, by a notice in writing to the Company
(and to the Debt Trustee if given by the Holders of the outstanding Debt
Securities of such series), and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal of the Debt Securities of
a series shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, (i) the Company shall pay or shall deposit with the Debt
Trustee a sum sufficient to pay (A) all matured installments of interest upon
all the Debt Securities of that series and the principal of and premium, if any,
on
22
any and all Debt Securities of that series which shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any,
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the same rate as the rate of
interest specified in the Debt Securities of such series to the date of such
payment or deposit) and (B) such amount as shall be sufficient to cover
compensation due to the Debt Trustee and each predecessor Debt Trustee, their
respective agents, attorneys and counsel, pursuant to Section 6.06, and (ii) any
and all Events of Default under this Indenture, other than the non-payment of
the principal of the Debt Securities of such series which shall have become due
solely by such declaration of acceleration, shall have been cured, waived or
otherwise remedied as provided herein, then, in every such case, the Holders of
a majority in aggregate principal amount of the Debt Securities of that series
then outstanding, by written notice to the Company and to the Debt Trustee, may
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
In case the Debt Trustee shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Debt Trustee, then
and in every such case the Company, the Debt Trustee and the Holders shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company, the Debt Trustee and the Holders
shall continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Debt Securities on
Default; Suit Therefor.
The Company covenants that (a) in case default shall
be made in the payment of any installment of interest upon any of the Debt
Securities of a series as and when the same shall become due and payable, and
such default shall have continued for a period of 30 days, or (b) in case
default shall be made in the payment of the principal of or premium, if any, on
any of the Debt Securities of a series as and when the same shall have become
due and payable, whether at maturity of the Debt Securities of such series or
upon prepayment or by declaration or otherwise, then, upon demand of the Debt
Trustee, the Company will pay to the Debt Trustee, for the benefit of the
Holders, the whole amount that then shall have become due and payable on all
such Debt Securities of such series for principal of, premium, if any, or
interest or both, as the case may be, with interest upon the overdue principal
and premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law and, if the Debt Securities of such series are
held by the Trust or a trustee of such trust, without duplication of any other
amounts paid by the Trust or a trustee in respect thereof) upon the overdue
installments of interest at the rate borne by the Debt Securities of such
series; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including a reasonable compensation
to the Debt Trustee, its agents, attorneys and counsel, and any other amount due
to the Debt Trustee pursuant to Section 6.06.
23
In case the Company shall fail forthwith to pay such
amounts upon such demand, the Debt Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
any other obligor on the Debt Securities of such series and collect in the
manner provided by law out of the property of the Company or any other obligor
on the Debt Securities of such series, wherever situated, the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other obligor on the
Debt Securities of any series under Xxxxx 00, Xxxxxx Xxxxxx Code, or any other
applicable law, or in case a receiver or trustee shall have been appointed for
the property of the Company or such other obligor, or in the case of any other
similar judicial proceedings relative to the Company or other obligor upon the
Debt Securities of such series, or to the creditors or property of the Company
or such other obligor, the Debt Trustee, irrespective of whether the principal
of the Debt Securities of a series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Debt
Trustee shall have made any demand pursuant to the provisions of this Section
5.02, shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal
and interest owing and unpaid in respect of the Debt Securities of such series
and, in case of any judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Debt Trustee (including any claim for amounts due to the Debt Trustee
pursuant to 6.06) and of the Holders allowed in such judicial proceedings
relative to the Company or any other obligor on the Debt Securities, or to the
creditors or property of the Company or such other obligor, unless prohibited by
applicable law and regulations, to vote on behalf of the Holders in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses; and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of the
Holders to make such payments to the Debt Trustee, and, in the event that the
Debt Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Debt Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Debt Trustee, each predecessor Debt Trustee and
their respective agents, attorneys and counsel, and all other amounts due to the
Debt Trustee pursuant to Section 6.06.
Nothing herein contained shall be construed to
authorize the Debt 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 Debt Securities of any series or the rights of any
Holder or to authorize the Debt Trustee to vote in respect of the claim of any
Holder in any such proceeding.
24
All rights of action and of asserting claims under
this Indenture, or under any of the Debt Securities of any series, may be
prosecuted and enforced by the Debt Trustee without the possession of any of the
Debt Securities of such series, or the production thereof on any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Debt Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the Holders of
the Debt Securities of such series.
In any proceedings brought by the Debt Trustee (and
also any proceedings involving the interpretation of any provision of this
Indenture to which the Debt Trustee shall be a party) the Debt Trustee shall be
held to represent all the Holders, and it shall not be necessary to make any
Holders parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by
Debt Trustee.
Any moneys collected by the Debt Trustee shall be
applied in the following order, at the date or dates fixed by the Debt Trustee
for the distribution of such moneys, upon presentation of the Debt Securities of
the series in respect of which moneys have been collected, and stamping thereon
the payment, if only partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of
collection applicable to the Debt Securities of such series and all other
amounts due to the Debt Trustee under Section 6.06;
Second: To the payment of all Senior Indebtedness of
the Company if and to the extent required by Article XV;
Third: In case the principal of the outstanding Debt
Securities of such series in respect of which moneys have been collected shall
not have become due and be unpaid, to the payment of the amounts then due and
unpaid upon Debt Securities of such series for principal of, premium, if any,
and interest on the Debt Securities of such series, in respect of which or for
the benefit of which money has been collected, ratably, without preference of
priority of any kind, according to the amounts due on the Debt Securities of
such series for principal, premium, if any, and interest, respectively; and
Fourth: To the Person or Persons entitled thereto.
SECTION 5.04. Proceedings by Holders.
No Holder of Debt Securities of any series shall have
any right by virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such Holder previously shall have
given to the Debt Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Debt Securities of such series
specifying such Event of Default, as hereinbefore provided, (ii) the
25
Holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series then outstanding shall have made written request upon
the Debt Trustee to institute such action, suit or proceeding in its own name as
Debt Trustee hereunder and shall have offered to the Debt Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, (iii) the Debt Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action, suit or proceeding, and (iv) no direction
inconsistent with such written request has been given to the Debt Trustee during
such 60-day period by the Holders of a majority in principal amount of the
outstanding Debt Securities of such series, it being understood and intended,
and being expressly covenanted by the taker and Holder of every Debt Security of
such series with every other taker and Holder and the Debt Trustee, that no one
or more 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 Holder, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders.
Notwithstanding any other provisions in this
Indenture, however, the right of any Holder to receive payment of the principal
of, premium, if any, and interest on such Debt Security of such series, on or
after the same shall have become due and payable, or to institute suit for the
enforcement of any such payment, shall not be impaired or affected without the
consent of such Holder.
SECTION 5.05. Proceedings by Debt Trustee.
In case an Event of Default occurs with respect to
Debt Securities of any series and is continuing, the Debt Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Debt Trustee shall
deem most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Debt Trustee by this
Indenture or by law.
SECTION 5.06. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other
obligor upon the Debt Securities of any series or the property of the Company or
of such other obligor or their creditors, the Debt Trustee (irrespective of
whether the principal of any such Debt Securities shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Debt Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
26
(i) to file and prove a claim for the
whole amount of principal, premium, if any, and interest owing and
unpaid in respect of such Debt Securities and to file such other papers
or documents as may be necessary or advisable in order to have the
claims of the Debt Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Debt Trustee,
its agents and counsel and any other amounts due the Debt Trustee under
Section 6.06) and of the Holders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys
or other property payable or deliverable on any such claims and to
distribute the same, and any 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 Debt
Trustee, and in the event that the Debt Trustee shall consent to the
making of such payments directly to the Holders of such Debt
Securities, to pay to the Debt Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the
Debt Trustee, its agents and counsel, and any other amounts due the
Debt Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize
the Debt 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 Debt Securities of any series or the rights of any Holder thereof,
or to authorize the Debt Trustee to vote in respect of the claim of any Holder
in any such proceeding.
SECTION 5.07. Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to
the Debt Trustee or to the Holders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any other powers and remedies available
to the Debt Trustee or the Holders, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and agreements contained
in this Indenture or otherwise established with respect to the Debt Securities
of any series, and no delay or omission of the Debt Trustee or of any Holder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 5.04, every power and remedy given by this
Article V or by law to the Debt Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Debt Trustee or
by the Holders.
SECTION 5.08. Direction of Proceedings and Waiver
of Defaults by Majority of Holders.
Subject to the provisions of any supplemental
indenture hereto, the Holders of a majority in aggregate principal amount of the
Debt Securities of any series at the time outstanding
27
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Debt Trustee, or exercising any trust
or power conferred on the Debt Trustee; provided, however, that (subject to the
provisions of Section 6.01) the Debt Trustee shall have the right to decline to
follow any such direction if the Debt Trustee shall determine that the action so
directed would be unjustly prejudicial to the Holders of Debt Securities of such
series not taking part in such direction or if the Debt Trustee being advised by
counsel determines that the action or proceeding so directed may not lawfully be
taken or if the Debt Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors or trustees
and/or Responsible Officers shall determine that the action or proceedings so
directed would involve the Debt Trustee in personal liability. Prior to any
declaration accelerating the maturity of the Debt Securities of any series, the
Holders of a majority in aggregate principal amount of the Debt Securities of
such series at the time outstanding may on behalf of the Holders of all of the
Debt Securities of such series waive any past default or Event of Default and
its consequences except a default (a) in the payment of principal of, premium,
if any, or interest on any of the Debt Securities of such series (unless such
default has been cured and a sum sufficient to pay all matured installments of
principal, premium, if any, and interest due otherwise than by acceleration has
been deposited with the Debt Trustee) or (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the
Holder of each Debt Security affected. Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture and the
Company, the Debt Trustee and the Holders of Debt Securities of such series
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 5.08, said default or Event
of Default shall for all purposes of such series of Debt Securities and this
Indenture be deemed to have been cured and to be not continuing.
SECTION 5.09. Notice of Defaults.
(a) The Debt Trustee, within 90 days after the
occurrence of a Default with respect to a series of Debt Securities known to the
Debt Trustee, shall mail to all Holders, as the names and addresses of such
Holders appear upon the Security Register, notice of all Defaults known to the
Debt Trustee, unless such Default shall have been cured before the giving of
such notice (the term "Default" for the purpose of this Section 5.09 being
hereby defined to be any of the events specified in clauses (a), (b), (c), (d)
and (e) of Section 5.01, not including periods of grace, if any, provided for
therein, and irrespective of the giving of written notice specified in clause
(c) of Section 5.01); and provided that, except in the case of default in the
payment of the principal of, premium, if any, or interest on any series of Debt
Securities, the Debt Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of the Debt Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders thereof; and provided further, that in the case of any default of the
character
28
specified in Section 5.01(c), no such notice to Holders shall be given until at
least 30 days after the occurrence thereof.
(b) Within five Business Days after the
occurrence of any Event of Default known to the Debt Trustee, the Debt Trustee
shall transmit notice of such Event of Default to all Holders of the affected
series of Debt Securities as their names and addresses appear on the Security
Register, unless such Event of Default shall have been cured or waived.
SECTION 5.10. Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder
by his or her acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Debt Trustee
for any action taken or omitted by it as Debt Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 5.10 shall not apply to any
suit instituted by the Debt Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in aggregate principal
amount of any series of Debt Securities outstanding, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of, premium,
if any, or interest on any such Debt Security against the Company on or after
the same shall have become due and payable.
ARTICLE VI
CONCERNING THE DEBT TRUSTEE
SECTION 6.01. Duties and Responsibilities of Debt
Trustee.
With respect to the Holders of Debt Securities of any
series issued hereunder, the Debt Trustee, prior to the occurrence of an
Event of Default with respect to such series and after the curing or waiving of
all Events of Default with respect to such series which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case any such Event of Default has occurred (which
has not been cured or waived), the Debt 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 his or her own affairs.
No provision of this Indenture shall be construed to
relieve the Debt Trustee from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of
Default
29
with respect to any series of Debt
Securities and after the curing or waiving
of all Events of Default with respect to
such series which may have occurred,
(1) the duties and obligations of the
Debt Trustee shall be determined
solely by the express provisions of
this Indenture, and the Debt
Trustee shall not be liable except
for the performance of such duties
and obligations as are specifically
set forth in this Indenture; and
(2) in the absence of bad faith on the part of
the Debt Trustee, the Debt Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the
opinions certificates or opinions furnished
to the Debt Trustee and conforming to the
requirements of this Indenture; but, in the
case of any such certificates or opinions
which by any provision hereof are
specifically required to be furnished to the
Debt Trustee, the Debt Trustee shall be
under a duty to examine the same to
determine whether or not they conform to the
requirements of this Indenture;
(b) the Debt Trustee shall not be liable for any
error of judgment made in good faith by a
Responsible Officer or Responsible Officers,
unless it shall be proved that the Debt
Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Debt 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 pursuant to
Section 5.08, relating to the time, method
and place of conducting any proceeding for
any remedy available to the Debt Trustee, or
exercising any trust or power conferred upon
the Debt Trustee, under this Indenture.
None of the provisions contained in this Indenture
shall require the Debt Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity against
such risk is not reasonably assured to it.
30
SECTION 6.02. Reliance on Documents, Opinions,
etc. Except as otherwise provided
in Section 6.01:
(a) the Debt Trustee may rely and shall be
protected in acting or refraining from
acting upon any resolution, certificate,
statement, instrument, opinion, report,
notice, request, consent, order, bond, note,
debenture or other paper or document
believed by it to be genuine and to have
been signed or presented by the proper party
or parties;
(b) any request, direction, order or demand of
the Company mentioned herein may be
sufficiently evidenced by an Officer's
Certificate (unless other evidence in
respect thereof be herein specifically
prescribed); and any Board Resolution may be
evidenced to the Debt Trustee by a copy
thereof certified by the Secretary or an
Assistant Secretary of the Company;
(c) the Debt Trustee may consult with counsel of
its selection and any advice or Opinion of
Counsel shall be full and complete
authorization and protection in respect of
any action taken or suffered omitted by it
hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d) the Debt Trustee shall be under no
obligation to exercise any of the rights or
powers vested in it by this Indenture at the
request, order or direction of any of the
Holders of any series of Debt Securities,
pursuant to the provisions of this
Indenture, unless such Holders shall have
offered to the Debt Trustee reasonable and
sufficient security or indemnity against the
costs, expenses and liabilities which may be
incurred therein or thereby;
(e) the Debt Trustee shall not be liable for any
action taken or omitted by it in good faith
and believed by it to be authorized or
within the discretion or rights or powers
conferred upon it by this Indenture; nothing
contained herein shall, however, relieve the
Debt Trustee of the obligation, upon the
occurrence of an Event of Default (that has
not been cured or waived), to exercise such
of the rights and powers vested in it by
this Indenture, and to 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 his or
her own affairs;
31
(f) the Debt Trustee shall not be bound to make
any investigation into the facts or matters
stated in any resolution, certificate,
statement, instrument, opinion, report,
notice, request, consent, order, approval,
bond, debenture, coupon or other paper or
document, unless requested in writing to do
so by the Holders of a majority in aggregate
principal amount of any outstanding series
of Debt Securities; provided, however, that
if the payment within a reasonable time to
the Debt Trustee of the costs, expenses or
liabilities likely to be incurred by it in
the making of such investigation is, in the
opinion of the Debt Trustee, not reasonably
assured to the Debt Trustee by the security
afforded to it by the terms of this
Indenture, the Debt Trustee may require
reasonable indemnity against such expense or
liability as a condition to so proceeding;
(g) the Debt Trustee may execute any of the
trusts or powers hereunder or perform any
duties hereunder either directly or by or
through agents (including any Authenticating
Agent) or attorneys, and the Debt Trustee
shall not be responsible for any misconduct
or negligence on the part of any such agent
or attorney appointed by it with due care;
(h) the Debt Trustee shall not be charged with
knowledge of any Default or Event of Default
with respect to a series of Debt Securities
unless (1) such default is a default under
Sections 5.01(a) and 5.01(b) of this
Indenture, (2) a Responsible Officer shall
have actual knowledge of such Default or
Event of Default or (3) written notice of
such Default or Event of Default shall have
been given to the Debt Trustee by the
Company or any other obligor on the Debt
Securities or by any Holder; and
(i) the Debt Trustee shall not be liable for any
action taken, suffered or omitted by it in
good faith, without negligence or wilful
misconduct and believed by it to be
authorized or within the discretion or
rights or powers conferred upon it by this
Indenture.
SECTION 6.03. No Responsibility for Recitals,
etc.
The recitals contained herein and in any series of
Debt Securities (except in the certificate of authentication of the Debt Trustee
or the Authenticating Agent) shall be taken as the statements of the Company,
and the Debt Trustee and the Authenticating
32
Agent assume no responsibility for the correctness of the same. The Debt Trustee
and the Authenticating Agent make no representations as to the validity or
sufficiency of this Indenture or of any series of Debt Securities. The Debt
Trustee and the Authenticating Agent shall not be accountable for the use or
application by the Company of any Debt Securities or the proceeds of any Debt
Securities authenticated and delivered by the Debt Trustee or the Authenticating
Agent in conformity with the provisions of this Indenture.
SECTION 6.04. Debt Trustee, Authenticating Agent,
Paying Agents, Transfer Agents or
Registrar May Own Debt Securities.
The Debt Trustee or any Authenticating Agent or any
paying agent or any transfer agent or any registrar for any series of Debt
Securities, in its individual or any other capacity, may become the owner or
pledgee of such Debt Securities with the same rights it would have if it were
not Debt Trustee, Authenticating Agent, paying agent, transfer agent or
registrar for any such Debt Securities.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all
moneys received by the Debt Trustee or any paying agent with respect to any
series of Debt Securities shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Debt
Trustee and any paying agent with respect to any series of Debt Securities shall
be under no liability with respect to any series of Debt Securities for interest
on any money received by it hereunder except as otherwise agreed in writing with
the Company. So long as no Event of Default with respect to any series of Debt
Securities shall have occurred and be continuing, all interest allowed on any
such moneys relating to such series of Debt Securities shall be paid from time
to time upon the written order of the Company, signed by the Chairman of the
Board of Directors, the President or a Vice President or the Treasurer or an
Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Debt
Trustee.
The Company, as issuer of Debt Securities under this
Indenture, covenants and agrees to pay to the Debt Trustee from time to time,
and the Debt Trustee shall be entitled to, such compensation as shall be agreed
to in writing between the Company and the Debt Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and the Company will pay or reimburse the Debt Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Debt Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify each of the Debt Trustee or any predecessor
Debt Trustee (and
33
its officers, agents, directors and employees) for, and to hold it harmless
against, any and all loss, damage, claim, liability or expense including taxes
(other than taxes based on the income of the Debt Trustee) incurred without
negligence or bad faith on the part of the Debt Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Company under this Section 6.06 to compensate
and indemnify the Debt Trustee and to pay or reimburse the Debt Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to that
of the Debt Securities of any series upon all property and funds held or
collected by the Debt Trustee as such, except funds held in trust for the
benefit of the Holders of particular Debt Securities of any series.
When the Debt Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 5.01(d) or
Section 5.01(e), the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the
resignation or removal of the Debt Trustee and the defeasance or other
termination of this Indenture.
SECTION 6.07. Officer's Certificate and Opinion
of Counsel as Evidence.
Upon any application or request by the Company to the
Debt Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Debt Trustee an Officer's Certificate stating that
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 by furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other
than the Officer's Certificate required by Section 3.05) shall include:
(i) a statement that each individual
signing such certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(ii) 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;
34
(iii) 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
(iv) a statement as to whether, in the
opinion of each such individual, such condition or covenant has been
complied with.
SECTION 6.08. Conflicting Interest of Debt
Trustee.
If the Debt Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Debt Trustee and the Company shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Eligibility of Debt Trustee.
The Debt Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or any State or territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000) and
subject to supervision or examination by Federal, State, territorial, or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 6.09, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the
Company, serve as Debt Trustee.
In case at any time the Debt Trustee shall cease to
be eligible in accordance with the provisions of this Section 6.09, the Debt
Trustee shall resign immediately in the manner and with the effect specified in
Section 6.10.
SECTION 6.10. Resignation or Removal of Debt
Trustee.
(a) The Debt Trustee, or any trustee or trustees
hereafter appointed, may at any time resign
with respect to one or more or all series of
Debt Securities by giving written notice of
such resignation to the Company and by
mailing notice thereof to the Holders of the
affected series of Debt Securities at their
addresses as they shall appear on the
Security Register.
35
Upon receiving such notice of resignation,
the Company shall promptly appoint a
successor trustee or trustees with respect
to the applicable series by written
instrument, in duplicate, one copy of which
instrument shall be delivered to the
resigning Debt Trustee and one copy to the
successor trustee. If no successor trustee
shall have been so appointed and shall have
accepted such appointment within 60 days
after the mailing of such notice of
resignation to the affected Holders, the
resigning Debt Trustee may petition any
court of competent jurisdiction for the
appointment of a successor trustee, or any
Holder who has been a bona fide holder of a
Debt Security of any affected series for at
least six months may, subject to the
provisions of Section 5.10, on behalf of
himself and all others similarly situated,
petition any such court for the appointment
of a successor trustee. Such court may
thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following
shall occur:
(1) the Debt Trustee shall fail to
comply with the provisions of
Section 6.08 after written request
therefor by the Company or by any
Holder who has been a bona fide
holder of a Debt Security of any
affected series for at least six
months, or
(2) the Debt Trustee shall cease to be
eligible in accordance with the
provisions of Section 6.09 and
shall fail to resign after written
request therefor by the Company or
by any such Holder, or
(3) the Debt Trustee shall become
incapable of acting, or shall be
adjudged a bankrupt or insolvent,
or a receiver of the Debt Trustee
or of its property shall be
appointed, or any public officer
shall take charge or control of the
Debt Trustee or of its property or
affairs for the purpose of
rehabilitation, conservation or
liquidation, then, in any such
case, the Company may remove the
Debt Trustee and appoint a
36
successor trustee by written
instrument, in duplicate, one copy
of which instrument shall be
delivered to the Debt Trustee so
removed and one copy to the
successor trustee, or, subject to
the provisions of Section 5.10, any
Holder who has been a bona fide
holder of a Debt Security of any
affected series 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
Debt Trustee and the appointment of
a successor trustee. Such court may
thereupon, after such notice, if
any, as it may deem proper and
prescribe, remove the Debt Trustee
and appoint a successor trustee.
(c) The Holders of a majority in aggregate
principal amount of the Debt Securities of
any series at the time outstanding may at
any time remove the Debt Trustee with
respect to that series and nominate a
successor trustee, which shall be deemed
appointed as successor trustee unless within
10 days after such nomination the Company
objects thereto, or if no successor trustee
shall have been so appointed and shall have
accepted appointment within 30 days after
such removal, in which case the Debt Trustee
so removed or any Holder of a Debt Security
of such series, upon the terms and
conditions and otherwise as in subsection
(a) of this Section 6.10 provided, may
petition any court of competent jurisdiction
for an appointment of a successor trustee.
(d) Any resignation or removal of the Debt
Trustee and appointment of a successor
trustee pursuant to any of the provisions of
this Section 6.10 shall become effective
only upon the acceptance of such appointment
by the successor trustee as provided in
Section 6.11.
SECTION 6.11. Acceptance by Successor Debt
Trustee.
Any successor trustee appointed as provided in
Section 6.10 shall execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment hereunder, 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, duties and
obligations of its predecessor hereunder,
37
with like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 6.06, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act and shall duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring trustee thereunder. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Section
6.06.
No successor trustee shall accept appointment as
provided in this Section 6.11 unless at the time of such acceptance such
successor trustee shall be qualified under the provisions of Section 6.08 and
eligible under the provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee
as provided in this Section 6.11, the Company shall mail notice of the
succession of such trustee hereunder to the Holders of the affected series of
Debt Securities at their addresses as they shall appear on the Security
Register. If the Company fails to mail such notice within 10 days after the
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Debt 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 Debt Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Debt Trustee, shall be the successor of the
Debt Trustee hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case, at the time such successor to the Debt
Trustee shall succeed to the trusts created by this Indenture, Debt Securities
of any series shall have been authenticated but not delivered, any such
successor to the Debt Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Debt Securities so authenticated; and in
case at that time any Debt Securities of any series shall not have been
authenticated, any successor to the Debt Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor trustee; and in all such cases such certificates shall have the full
force which such Debt Securities or this Indenture elsewhere provides that the
certificate of authentication of the Debt Trustee shall have; provided, however,
that the right to adopt the certificate of authentication of any predecessor
Debt Trustee or authenticate Debt Securities in the name of any predecessor Debt
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
38
SECTION 6.13. Limitation on Rights of Debt
Trustee as a Creditor.
The Debt Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in
Section 311(b) of the Trust Indenture Act. A Debt Trustee who has resigned or
been removed shall be subject to Section 311(a) of the Trust Indenture Act to
the extent required thereby.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents with
respect to a series of Debt Securities appointed by the Debt Trustee upon the
request of the Company with power to act on its behalf and subject to its
direction in the authentication and delivery of Debt Securities of any such
series issued upon exchange or transfer thereof as fully to all intents and
purposes as though any such Authenticating Agent had been expressly authorized
to authenticate and deliver such Debt Securities; provided, that the Debt
Trustee shall have no liability to the Company for any acts or omissions of the
Authenticating Agent with respect to the authentication and delivery of Debt
Securities of any such series. Any such Authenticating Agent shall at all times
be a corporation organized and doing business under the laws of the United
States or of any State or territory thereof or of the District of Columbia
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of at least $50,000,000 and being subject to supervision or
examination by Federal, State, territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually pursuant to
law or the requirements of such authority, then for the purposes of this Section
6.14 the combined capital and surplus of such corporation 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, it shall resign
immediately in the manner and with the effect herein specified in this Section.
Any corporation into which any Authenticating Agent
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.14 without the execution or filing of any paper or
any further act on the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Debt Trustee and to the Company.
The Debt Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section 6.14, the Debt Trustee may, and upon the request of
the Company shall, promptly appoint a successor Authenticating Agent eligible
under this
39
Section 6.14, shall give written notice of such appointment to the Company and
shall mail notice of such appointment to all Holders as the names and addresses
of such Holders appear on the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent herein.
The Company, as borrower, agrees to pay to any
Authenticating Agent from time to time reasonable compensation for its services.
Any Authenticating Agent shall have no responsibility or liability for any
action taken by it as such in accordance with the directions of the Debt
Trustee.
ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.01. Action by Holders.
Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the Debt
Securities of any series may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the Holders
of such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by such
Holders in person or by agent or proxy appointed in writing, or (b) by the
record of such Holders voting in favor thereof at any meeting of such Holders
duly called and held in accordance with the provisions of Article VIII, or (c)
by a combination of such instrument or instruments and any such record of such a
meeting of such Holders.
If the Company shall solicit from the Holders of Debt
Securities of any series any request, demand, authorization, direction,
notice, consent, waiver or other action, the Company may, at its option, as
evidenced by an Officer's Certificate, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of outstanding Debt
Securities of any series have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other action, and
for that purpose the outstanding Debt Securities of any such series shall be
computed as of the record date; provided, however, that no such authorization,
agreement or consent by such Holders of Debt Securities of any such series on
the record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
40
SECTION 7.02. Proof of Execution by Holders.
Subject to the provisions of Section 6.01, 6.02 and
8.05, proof of the execution of any instrument by a Holder or his or her agent
or proxy shall be sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Debt Trustee or in such manner as
shall be satisfactory to the Debt Trustee. The ownership of Debt Securities
shall be proved by the Security Register or by a certificate of the Security
Registrar. The Debt Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
The record of any Holders' meeting shall be proved in
the manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer
of any Debt Security of any series, the Company, the Debt Trustee, any
Authenticating Agent, any paying agent, any transfer agent and any registrar for
the Debt Securities of any such series may deem the person in whose name such
Debt Security shall be registered upon the Security Register to be, and may
treat him as, the absolute owner of such Debt Security (whether or not such Debt
Security shall be overdue) for the purpose of receiving payment of or on account
of the principal of and premium, if any, and (subject to any applicable
provisions of any supplement hereto) interest on such Debt Security and for all
other purposes; and neither the Company nor the Debt Trustee nor any
Authenticating Agent nor any paying agent nor any transfer agent nor any
registrar for the Debt Securities of any such series shall be affected by any
notice to the contrary. All such payments so made to any Holder for the time
being or upon his or her order shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Debt Security.
SECTION 7.04. Debt Securities Owned by Company
Deemed Not Outstanding.
In determining whether the Holders of the requisite
aggregate principal amount of Debt Securities of any series have concurred in
any direction, consent or waiver under this Indenture, Debt Securities of such
series that are owned by the Company or any other obligor on the Debt Securities
of such series or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other
obligor on the Debt Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Debt Trustee shall be protected in relying
on any such direction, consent or waiver, only Debt Securities which a
Responsible Officer of the Debt Trustee actually knows are so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith may
be regarded as outstanding for the purposes of this Section 7.04 if the pledgee
shall establish to the satisfaction of the Debt Trustee the pledgee's right to
vote such Debt Securities and that the pledgee is not the Company or any such
other obligor or Person directly or indirectly controlling or controlled by
41
or under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, any decision by the Debt
Trustee taken upon the advice of counsel shall be full protection to the Debt
Trustee.
SECTION 7.05. Revocation of Consents; Future
Holders Bound.
At any time prior to (but not after) the evidencing
to the Debt Trustee, as provided in Section 7.01, of the taking of any action
by the Holders of the percentage in aggregate principal amount of the Debt
Securities of any series specified in this Indenture in connection with such
action, any Holder (or Holder of any Debt Security issued in whole or in part in
exchange or substitution therefor), subject to Section 7.01, of a Debt Security
the serial number of which is shown by the evidence to be included in the group
of Debt Securities the Holders of which have consented to such action may, by
filing written notice with the Debt Trustee at its principal office and upon
proof of holding as provided in Section 7.02, revoke such action so far as
concerns such Debt Security (or so far as concerns the principal amount
represented by any exchanged or substituted Debt Security). Except as aforesaid
any such action taken by any Holder shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Debt Security, and of any
Debt Security issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Debt Security or
any Debt Security issued in exchange or substitution therefor.
ARTICLE VIII
HOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Holders of Debt Securities of any series
may be called at any time and from time to time pursuant to the provisions
of this Article VIII for any of the following purposes:
(a) to give any notice to the Company or to the
Debt Trustee, or to give any directions to
the Debt Trustee, or to consent to the
waiving of any default hereunder and its
consequences, or to take any other action
authorized to be taken by Holders of Debt
Securities of such series pursuant to any of
the provisions of Article V;
(b) to remove the Debt Trustee with respect to
such series and nominate a successor trustee
pursuant to the provisions of Article VI;
(c) to consent to the execution of an indenture
or indentures supplemental hereto with
respect to such series pursuant to the
provisions of Section 9.02; or
(d) to take any other action authorized to be
taken
42
by or on behalf of the Holders of Debt
Securities of such series of any specified
aggregate principal amount of such Debt
Securities under any other provision of this
Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Debt Trustee.
The Debt Trustee may at any time call a meeting of
Holders of Debt Securities of any series to take any action specified in
Section 8.01, to be held at such time and at such place in New York, New York,
as the Debt Trustee shall determine. Notice of every meeting of such Holders,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed to such Holders at
their addresses as they shall appear on the Security Register. Such notice shall
be mailed not less than 20 nor more than 60 days prior to the date fixed for the
meeting.
SECTION 8.03. Call of Meetings by Company or
Holders.
In case at any time the Company, pursuant to a
resolution of the Board of Directors, or the Holders of at least 10% in
aggregate principal amount of the Debt Securities of any particular series then
outstanding, shall have requested the Debt Trustee to call a meeting of Holders
of Debt Securities of such series, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the Debt
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders may determine the time
and the place in New York, New York for such meeting and may call such meeting
to take any action authorized in Section 8.01, by mailing notice thereof as
provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders of
any series of Debt Securities a Person shall (a) be a Holder of one or more
Debt Securities of such series or (b) a Person appointed by an instrument in
writing as proxy by any such Holder. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders shall be the Persons entitled
to vote at such meeting and their counsel and any representatives of the Debt
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this
Indenture, the Debt Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders, in regard to proof of the holding of Debt
Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
43
The Debt Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders as provided in Section 8.03, in which
case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 8.04, at any
meeting each Holder or proxy therefor shall be entitled to one vote for each
$1,000 principal amount of Debt Securities of the affected series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Debt Security challenged as not outstanding and
ruled by the chairman of the meeting to be not outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Debt Securities of
the affected series held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Holders. Any meeting of
Holders duly called pursuant to the provisions of Section 8.02 or 8.03 may be
adjourned from time to time by a majority of those present, and the meeting may
be held as so adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be subscribed the
signatures of such Holders or of their representatives by proxy and the serial
number or numbers of the Debt Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Holders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 8.02. The record shall show the serial numbers of the Debt Securities
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Debt Trustee to be preserved by the Debt Trustee, the latter to
have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Holders.
44
The Company and the Debt Trustee may from time to
time and at any time amend this Indenture, without the consent of the Holders of
Debt Securities of any affected series then outstanding, for one or more of the
following purposes:
(a) to evidence the succession of another Person
to the Company, or successive successions,
and the assumption by the successor Person
of the covenants, agreements and obligations
of the Company pursuant to Article X hereof;
(b) to add to the covenants of the Company such
further covenants, restrictions or
conditions for the protection of the Holders
of the Debt Securities of such series as the
Board of Directors and the Debt Trustee
shall consider to be for the protection of
such Holders, and to make the occurrence, or
the occurrence and continuance, of a default
in any of such additional covenants,
restrictions or conditions a default or an
Event of Default with respect to such series
of Debt Securities permitting the
enforcement of all or any of the remedies
provided in this Indenture as herein set
forth; provided, however, that in respect of
any such additional covenant, restriction or
condition such amendment may provide for a
particular period of grace after default
(which period may be shorter or longer than
that allowed in the case of other defaults)
or may provide for an immediate enforcement
upon such default or may limit the remedies
available to the Debt Trustee upon such
default;
(c) to provide for the issuance under this
Indenture of Debt Securities of any series
in coupon form (including Debt Securities
registrable as to principal only) and to
provide for exchangeability of such Debt
Securities with the Debt Securities of such
series issued hereunder in fully registered
form and to make all appropriate changes for
such purpose;
(d) to cure any ambiguity or to correct or
supplement any provision contained herein or
in any supplemental indenture which may be
defective or inconsistent with any other
provision contained herein or in any
supplemental indenture, or to make such
other provisions in regard to matters or
questions arising under this Indenture;
provided that any such action shall not
materially adversely affect the interests of
the Holders of Debt Securities of such
series;
45
(e) to evidence and provide for the acceptance
of appointment hereunder by a successor
trustee with respect to such series of Debt
Securities;
(f) to make provision for transfer procedures,
certification, book-entry provisions and all
other matters required pursuant to this
Indenture or otherwise necessary, desirable
or appropriate in connection with the
issuance of such series of Debt Securities;
provided that any such action shall not
materially adversely affect the interests of
the Holders of such series of Debt
Securities; to qualify or maintain
qualification of this Indenture under the
Trust Indenture Act; or
(g) to make any change that does not adversely
affect the rights of any such Holder in any
material respect.
The Debt Trustee is hereby authorized to join with
the Company in the execution of any supplemental indenture to effect such
amendment, to make any further appropriate agreements and stipulations which may
be therein contained and to accept the conveyance, transfer and assignment of
any property thereunder, but the Debt Trustee shall not be obligated to, but may
in its discretion, enter into any such supplemental indenture which affects the
Debt Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Any amendment to this Indenture authorized by the
provisions of this Section 9.01 may be executed by the Company and the Debt
Trustee without the consent of the Holders of Debt Securities of the series
affected at the time outstanding, notwithstanding any of the provisions of
Section 9.02.
SECTION 9.02. With Consent of Holders.
With the consent (evidenced as provided in Section
7.01) of the Holders of a majority in aggregate principal amount of the Debt
Securities of all series at the time outstanding affected by such amendment
(voting as one class), the Company, when authorized by a Board Resolution, and
the Debt Trustee may from time to time and at any time amend this Indenture 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 any such series; provided, however, that no such amendment
shall, without the consent of the Holders of each Debt Security of each series
then outstanding and affected thereby (i) change the Maturity Date of any such
Debt Security, or reduce the rate or extend the time of payment of interest
thereon (except as contemplated by Article XVI), or reduce the principal amount
thereof, or reduce any amount payable on prepayment thereof, or make the
principal thereof or any interest or premium thereon payable in any coin or
currency other than that provided in such Debt Securities, or impair or affect
the right of any Holder thereof to institute suit for payment thereof, or (ii)
reduce
46
the aforesaid percentage of Debt Securities of any series, the Holders of which
are required to consent to any such amendment to this Indenture, provided,
however, that if any series of Debt Securities are held by an Institutional
Trustee of a SunTrust Capital Trust, such amendment shall not be effective until
the holders of a majority in liquidation amount of Trust Securities of such
SunTrust Capital Trust shall have consented to such amendment; provided,
further, that if the consent of the Holders of each outstanding Debt Security of
any series is required, such amendment shall not be effective until each holder
of the Trust Securities of such SunTrust Capital Trust owning such Debt
Securities shall have consented to such amendment.
Upon the request of the Company accompanied by a copy
of a resolution of the Board of Directors certified by its Secretary or
Assistant Secretary authorizing the execution of any supplemental indenture
effecting such amendment, and upon the filing with the Debt Trustee of evidence
of the consent of the affected Holders as aforesaid, the Debt Trustee shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Debt Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Debt Trustee may
in its discretion, but shall not be obligated to, enter into such supplemental
indenture.
Promptly after the execution by the Company and the
Debt Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Debt Trustee shall transmit by mail, first class postage prepaid, a
notice, prepared by the Company, setting forth in general terms the substance of
such supplemental indenture, to the Holders of the affected series of Debt
Securities as their names and addresses appear upon the Security Register. Any
failure of the Debt Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
It shall not be necessary for the consent of Holders
under this Section 9.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
SECTION 9.03. Compliance with Trust Indenture
Act; Effect of Supplemental
Indentures.
Any supplemental indenture executed pursuant to the
provisions of this Article IX shall comply with the Trust Indenture Act. Upon
the execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Debt Trustee, the
Company and the Holders of Debt Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
47
SECTION 9.04. Notation on Debt Securities.
Debt Securities of any series authenticated and
delivered after the execution of any supplemental indenture affecting such
series pursuant to the provisions of this Article IX may bear a notation in form
approved by the Debt Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Debt Trustee shall so determine, new Debt
Securities of such series so modified as to conform, in the opinion of the Debt
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Company, authenticated by the Debt Trustee or the Authenticating Agent and
delivered in exchange for the Debt Securities of such series then outstanding.
SECTION 9.05. Evidence of Compliance of
Supplemental Indenture to be
Furnished to Debt Trustee.
The Debt Trustee, subject to the provisions of
Sections 6.01 and 6.02, may receive an Officer's Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
hereto complies with the requirements of this Article IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on
Certain Terms.
Nothing contained in this Indenture or in any Debt
Securities of any series shall prevent (i) any consolidation or merger of the
Company with or into any other Person (whether or not affiliated with the
Company, as the case may be), or successive consolidations or mergers in which
the Company or its successor or successors, as the case may be, shall be a party
or parties, or (ii) prevent any sale, conveyance, transfer or lease of the
property of the Company, or its successor or successors as the case may be, as
an entirety, or substantially as an entirety, to any other Person (whether or
not affiliated with the Company, or its successor or successors, as the case may
be) authorized to acquire and operate the same; provided, that (a) the Company
is the surviving Person, or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
conveyance, transfer or lease of property is made is a Person organized and
existing under the laws of the United States or any State thereof or the
District of Columbia, and (b) upon any such consolidation, merger, sale,
conveyance, transfer or lease, the due and punctual payment of the principal of,
premium, if any and interest on the Debt Securities of each series then
outstanding according to their tenor and the due and punctual performance and
observance of all the covenants and conditions of this Indenture to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act as then in
effect) satisfactory in form to the Debt
48
Trustee executed and delivered to the Debt Trustee by the Person formed by such
consolidation, or into which the Company shall have been merged, or by the
Person which shall have acquired such property, as the case may be, and (c)
after giving effect to such consolidation, merger, sale, conveyance, transfer or
lease, no Default or Event of Default with respect to any series of Debt
Securities shall have occurred and be continuing.
SECTION 10.02. Successor Corporation to be
Substituted for Company.
In case of any such consolidation, merger, conveyance
or transfer and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Debt Trustee and
satisfactory in form to the Debt Trustee, of the obligation of due and punctual
payment of the principal of, premium, if any, and interest on all of the Debt
Securities and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Company, such successor Person shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and the Company thereupon shall be relieved of any further liability
or obligation hereunder or upon the Debt Securities. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in the
name of SunTrust Banks, Inc., any or all of the Debt Securities of any series
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Debt Trustee or the Authenticating Agent; and, upon the
order of such successor Person instead of the Company and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Debt Trustee
or the Authenticating Agent shall authenticate and deliver any Debt Securities
which previously shall have been signed and delivered by the officers of the
Company to the Debt Trustee or the Authenticating Agent for authentication, and
any Debt Securities which such successor Person thereafter shall cause to be
signed and delivered to the Debt Trustee or the Authenticating Agent for that
purpose. All the Debt Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debt Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Debt Securities had been issued at the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Debt
Trustee.
The Debt Trustee, subject to the provisions of
Sections 6.01 and 6.02, may receive an Opinion of Counsel and/or an Officer's
Certificate as conclusive evidence that any consolidation, merger, sale,
conveyance, transfer or lease, and any assumption, permitted or required by the
terms of this Article X complies with the provisions of this Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
49
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Debt
Trustee for cancellation all Debt Securities of any series theretofore
authenticated (other than any Debt Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced as provided in
Section 2.08) and not theretofore cancelled, or (b) all the Debt Securities of
any series outstanding hereunder not theretofore cancelled or delivered to the
Debt Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
prepayment within one year under arrangements satisfactory to the Debt Trustee
for the giving of notice of prepayment, and the Company shall deposit with the
Debt Trustee, in trust, an amount in cash or U.S. Government Obligations,
maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash, or a combination thereof sufficient to pay on
the Maturity Date or upon prepayment all of the Debt Securities of such series
(other than any such Debt Securities which shall have been destroyed, lost or
stolen and which shall have been replaced as provided in Section 2.08) not
theretofore cancelled or delivered to the Debt Trustee for cancellation,
including principal, premium, if any, and interest due or to become due to the
Maturity Date or prepayment date, as the case may be, but excluding, however,
the amount of any moneys for the payment of principal of, premium, if any, or
interest on the Debt Securities (1) theretofore repaid to the Company in
accordance with the provisions of Section 11.04, or (2) paid to any State or to
the District of Columbia pursuant to its unclaimed property or similar laws, and
if in either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect except for the provisions of Sections 2.05, 2.07, 2.08, 3.01,
3.02, 3.05, 6.06, 6.10 and 11.04 hereof, which shall survive until such Debt
Securities shall mature and be paid. Thereafter, Sections 6.06, 6.10 and 11.04
shall survive, and the Debt Trustee, on demand of the Company accompanied by any
Officer's Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture; the Company, however, hereby agrees to reimburse the
Debt Trustee for any costs or expenses thereafter reasonably and properly
incurred by the Debt Trustee in connection with this Indenture or the Debt
Securities.
SECTION 11.02. Deposited Moneys and U.S.
Government Obligations to be Held
in Trust by Debt Trustee.
Subject to the provisions of Section 11.04, all
moneys and U.S. Government Obligations deposited with the Debt Trustee pursuant
to Sections 11.01 or 11.05 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company if
acting as its own paying agent), to the Holders of the particular series of Debt
Securities for the payment of which such moneys or U.S. Government Obligations
have been deposited with the Debt Trustee, of all sums due and to become due
thereon for principal, premium, if any, and interest.
50
The Company shall pay and indemnify the Debt Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 11.01 or 11.05 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of outstanding
Debt Securities of the affected series.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture
all moneys then held by any paying agent of the Debt Securities of any series
(other than the Debt Trustee) shall, upon written demand of the Company, be
repaid to it or paid to the Debt Trustee, and thereupon such paying agent shall
be released from all further liability with respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Debt Trustee
or any paying agent for payment of the principal of, premium, if any, or
interest on any Debt Securities of any series and not applied but remaining
unclaimed by the Holders thereof for two years after the date upon which the
principal of, premium, if any, or interest on such Debt Securities, as the case
may be, shall have become due and payable, shall be repaid to the Company by the
Debt Trustee or such paying agent on written demand; and the Holder of any such
Debt Securities shall thereafter look only to the Company for any payment which
such Holder may be entitled to collect and all liability of the Debt Trustee or
such paying agent with respect to such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys
or U.S. Government Obligations.
The Company shall be deemed to have been Discharged
(as defined below) from its obligations with respect to any series of Debt
Securities on the 91st day after the applicable conditions set forth below have
been satisfied:
(1) the Company shall have deposited or caused
to be deposited irrevocably with the Debt
Trustee or the Defeasance Agent (as defined
below) as trust funds in trust, specifically
pledged as security for, and dedicated
solely to, the benefit of the Holders of the
Debt Securities of such series (i) money in
an amount, or (ii) U.S. Government
Obligations, maturing as to principal and
interest at such times and in such amounts
as will insure the availability of cash, or
(iii) a combination of (i) and (ii),
sufficient, in the opinion (with respect to
(ii) and (iii)) of a nationally recognized
firm of independent public accountants
expressed in a written certification thereof
delivered to the
51
Debt Trustee and the Defeasance Agent, if
any, to pay and discharge each installment
of principal of, premium, if any, and
interest on the outstanding Debt Securities
of such series on the dates such
installments of principal, premium or
interest are due;
(2) if the Debt Securities of such series are
then listed on any national securities
exchange or quoted on a quotation system,
the Company shall have delivered to the Debt
Trustee and the Defeasance Agent, if any, an
Opinion of Counsel to the effect that the
exercise of the option under this Section
11.05 would not cause such Debt Securities
to be delisted from such exchange or
quotation system;
(3) no Default or Event of Default with respect
to the Debt Securities of such series shall
have occurred and be continuing on the date
of such deposit; and
(4) the Company shall have delivered to the Debt
Trustee and the Defeasance Agent, if any, an
Opinion of Counsel to the effect that
Holders of the Debt Securities of such
series will not recognize income, gain or
loss for United States Federal income tax
purposes as a result of the exercise of the
option under this Section 11.05 and will be
subject to United States Federal income tax
on the same amount and in the same manner
and at the same times as would have been the
case if such option had not been exercised.
"Discharged" means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by, and
obligations under, the Debt Securities of such series and to have satisfied all
the obligations under this Indenture relating to the Debt Securities of such
series (and the Debt Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except (A) the rights of Holders of
the Debt Securities of such series to receive, from the trust fund described in
clause (1) above, payment of the principal of, premium, if any, and interest on
such Debt Securities when such payments are due; (B) the Company's obligations
with respect to such Debt Securities under Sections 2.07, 2.08, 5.02 and 11.04;
and (C) the rights, powers, trusts, duties and immunities of the Debt Trustee
hereunder.
"Defeasance Agent" means another financial
institution which is eligible to act as Debt Trustee hereunder and which assumes
all of the obligations of the Debt Trustee necessary to
52
enable the Debt Trustee to act hereunder. In the event such a Defeasance Agent
is appointed pursuant to this Section, the following conditions shall apply:
(1) The Debt Trustee shall have approval rights
over the document appointing such Defeasance
Agent and the document setting forth such
Defeasance Agent's rights and
responsibilities;
(2) The Defeasance Agent shall provide
verification to the Debt Trustee
acknowledging receipt of sufficient money
and/or U. S. Government Obligations to meet
the applicable conditions set forth in this
Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities
Solely Corporate Obligations.
No recourse for the payment of the principal of,
premium, if any, or interest on any Debt Security of any series, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this Indenture, or
in any Debt Security of any series, 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 to the Company, either directly or through
the Company or any successor Person to the Company, 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 of the Company,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, shareholders, officers or directors, as such of
the Company or any successor corporation, or any of them, 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 Debt Securities of any series or coupons, or implied therefrom; and that any
and all such personal liability, 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 Debt Securities of any series or coupons, 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 Debt Securities.
53
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and
agreements in this Indenture contained by the Company shall bind its successors
and assigns whether so expressed or not.
SECTION 13.02. Official Acts by Successor
Corporation.
Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee
or officer of the Company shall and may be done and performed with like force
and effect by the like board, committee or officer of any corporation that shall
at the time be the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by
authority of 2/3 (two-thirds) of its Board of Directors and delivered to the
Debt Trustee may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to the Company, as
the case may be, and as to any successor Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Debt Trustee
or by the Holders on the Company may be given or served by being deposited
postage prepaid by first class mail, registered or certified mail, overnight
courier service or conformed telecopy addressed (until another address is filed
by the Company with the Debt Trustee for the purpose) to the Company at 000
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx, 00000-0000, Attention: Treasurer. Any
notice, direction, request or demand by any Holder to or upon the Debt Trustee
shall be deemed to have been sufficiently given or made, for all purposes, if
given or made in writing at the office of the Debt Trustee, Bank One, N.A.,
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration (unless another address is provided by the Debt Trustee to the
Company for such purpose). Any notice or communication to a Holder shall be
mailed by first class mail to his or her address shown on the Security Register.
SECTION 13.05. Governing Law.
This Indenture and each Debt Security shall be deemed
to be a contract made under the laws of the State of New York, and for all
purposes shall be governed by and construed in accordance with the laws of said
State, without regard to conflicts of laws principles thereof.
54
SECTION 13.06. Evidence of Compliance with
Conditions Precedent.
Upon any application or demand by the Company to the
Debt Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Debt Trustee an Officer's 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 have been complied with.
Each certificate or opinion provided for in this
Indenture and delivered to the Debt Trustee with respect to compliance with a
condition or covenant provided for in this Indenture (except certificates
delivered pursuant to Section 3.05) shall include (1) a statement that the
Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 13.07. Business Days.
In any case where the date of payment of principal
of, premium, if any, or interest on the Debt Securities will not be a Business
Day, the payment of such principal of, premium, if any, or interest on the Debt
Securities need not be made on such date but may be made on the next succeeding
Business Day, with the same force and effect as if made on the date of payment
and no interest shall accrue for the period from and after such date, except
that if such next succeeding Business Day falls in the next succeeding calendar
year, then such payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by Sections 310
to 318, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of
the articles and sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions hereof.
55
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained
in this Indenture or in the Debt Securities shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
the Debt Securities, but this Indenture and the Debt Securities shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to
assign any of its respective rights or obligations under this Indenture to a
direct or indirect wholly owned Subsidiary of the Company, provided that, in the
event of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, this Indenture is binding upon and inures
to the benefit of the parties thereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties thereto.
ARTICLE XIV
REDEMPTION OF DEBT SECURITIES
SECTION 14.01. Applicability of Article.
Debt Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and, except as otherwise specified as contemplated by Section 2.03 for Debt
Securities of any series, in accordance with this Article.
SECTION 14.02. Notice of Redemption; Selection of
Debt Securities.
In case the Company shall desire to exercise the
right to redeem all, or, as the case may be, any part of the Debt Securities of
any series in accordance with their terms, it shall fix a date for redemption
and shall mail a notice of such redemption at least 30 and not more than 60 days
prior to the date fixed for redemption to the Holders of Debt Securities of such
series to be so redeemed as a whole or in part at their last addresses as the
same appear on the Security Register. Such mailing shall be by first class mail.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice by mail or any defect in the
notice to the Holder of any Debt Security of any series designated for
redemption as a whole or in part shall not affect the
56
validity of the proceedings for the redemption of any other Debt Security of
such series.
Each such notice of redemption shall specify the
CUSIP number of the Debt Securities of such series to be redeemed, the date
fixed for redemption, the redemption price at which the Debt Securities of such
series are to be redeemed (or the method by which such redemption price is to be
calculated), the place or places of payment that payment will be made upon
presentation and surrender of the Debt Securities of such series, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the Debt
Securities of a series are to be redeemed, the notice of redemption shall
specify the numbers of the Debt Securities of such series to be redeemed. In
case any Debt Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Debt Security, a new Debt Security or Debt Securities of such
series in principal amount equal to the portion thereof that has not been
redeemed will be issued.
By 10:00 a.m. New York, New York time on the
redemption date specified in the notice of redemption given as provided in this
Section, the Company will deposit with the Debt Trustee or with one or more
paying agents an amount of money sufficient to redeem on the redemption date all
the Debt Securities so called for redemption at the appropriate Redemption
Price, together with accrued interest to the date fixed for redemption.
The Company will give the Debt Trustee notice not
less than 45 days prior to the redemption date (unless a shorter notice is
acceptable to the Trustee) as to the aggregate principal amount of Debt
Securities to be redeemed and the Debt Trustee shall select, in such manner as
in its sole discretion it shall deem appropriate and fair, the Debt Securities
or portions thereof to be redeemed.
SECTION 14.03. Payment of Debt Securities Called
for Redemption.
If notice of redemption has been given as provided in
Section 14.02, the Debt Securities or portions of Debt Securities of any
series with respect to which such notice has been given shall become due and
payable on the date and at the place or places stated in such notice at the
applicable Redemption Price, together with interest accrued to the date fixed
for redemption (subject to the rights of Holders at the close of business on a
regular record date in respect of an Interest Payment Date occurring on or prior
to the redemption date), and on and after said date (unless the Company shall
default in the payment of such Debt Securities at the Redemption Price, together
with interest accrued to said date) interest on such Debt Securities or portions
of Debt Securities so called for redemption shall cease to accrue. On
presentation and surrender of such Debt Securities at a place of payment
specified in said notice, the said Debt Securities or the specified portions
thereof shall be redeemed by the Company at the applicable Redemption Price,
together with interest accrued thereon to
57
the date fixed for redemption (subject to the rights of Holders on the close of
business on a regular record date in respect of an Interest Payment Date
occurring on or prior to the redemption date).
Upon presentation of any Debt Security of a series
redeemed in part only, the Company shall execute and the Debt Trustee shall
authenticate and make available for delivery to the Holder thereof, at the
expense of the Company, a new Debt Security or Debt Securities of such series of
authorized denominations, in principal amount equal to the portion of the Debt
Security so presented that has not been redeemed.
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of
Debt Securities issued hereunder likewise covenants and agrees, that the Debt
Securities shall be issued subject to the provisions of this Article XV; and
each Holder, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of,
premium, if any, and interest on all Debt Securities issued hereunder shall, to
the extent and in the manner hereinafter set forth, be subordinated and junior
in right of payment to all Senior Indebtedness, whether outstanding at the date
of this Indenture or thereafter incurred.
No provision of this Article XV shall prevent the
occurrence of any Default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any
default by the Company in the payment of principal, premium, interest or any
other payment due on any Senior Indebtedness, or in the event that the maturity
of any Senior Indebtedness has been accelerated because of a default, then, in
either case, no payment shall be made by the Company with respect to the
principal (including redemption payments) of, premium, if any, or interest on
the Debt Securities of any series or any other amounts which may be due on such
Debt Securities pursuant to the terms hereof or otherwise).
In the event of the acceleration of the maturity of
the Debt Securities of any series, then no payment shall be made by the Company
with respect to the principal (including redemption payments) of, premium, if
any, or interest on such Debt Securities (including any other amounts which may
be due on such Debt Securities pursuant to the terms hereof or otherwise) until
the holders of all Senior Indebtedness outstanding at the time of such
acceleration shall receive payment in full of such Senior Indebtedness
(including any amounts due upon acceleration).
58
In the event that, notwithstanding the foregoing, any
payment shall be received by the Debt Trustee when such payment is
prohibited by the preceding paragraphs of this Section 15.02, such payment shall
be held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear, but
only to the extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Debt Trustee in
writing within 90 days of such payment of the amounts then due and owing on such
Senior Indebtedness, and only the amounts specified in such notice to the Debt
Trustee shall be paid to the holders of such Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution;
Bankruptcy.
Upon any payment by the Company or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution, winding-up, liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all Senior
Indebtedness of the Company shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made
by the Company on account of the principal of, premium, if any, or interest on
such Debt Securities of any series (including any other amounts which may be due
on such Debt Securities pursuant to the terms hereof or otherwise); and upon any
such dissolution or winding-up or liquidation or reorganization, any payment by
the Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, which the Holders or the Debt Trustee
would be entitled to receive from the Company, except for the provisions of this
Article XV, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders or by the Debt Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the
Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay all such Senior Indebtedness in full, in money or money's
worth, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Indebtedness, before any payment or distribution is
made to the Holders or to the Debt Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character
prohibited by the foregoing, whether in cash, property or securities, shall be
received by the Debt Trustee before all Senior Indebtedness is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or
59
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all such Senior Indebtedness in full in money in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article XV, the words "cash,
property or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article
XV with respect to the Debt Securities of any series to the payment of Senior
Indebtedness that may at the time be outstanding, provided that (i) such Senior
Indebtedness is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of such
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with, or
the merger of the Company into, another Person or the liquidation or dissolution
of the Company following the sale, conveyance, transfer or lease of its property
as an entirety, or substantially as an entirety, to another Person upon the
terms and conditions provided for in Article X of this Indenture shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 15.03 if such other Person shall, as a part of such
consolidation, merger, sale, conveyance, transfer or lease, comply with the
conditions stated in Article X of this Indenture. Nothing in Section 15.02 or in
this Section 15.03 shall apply to claims of, or payments to, the Debt Trustee
under or pursuant to Section 6.06 of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior
Indebtedness, the rights of the Holders of Debt Securities of any series shall
be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of the
Company, as the case may be, applicable to such Senior Indebtedness until the
principal of, premium, if any, and interest on the Debt Securities of such
series shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior Indebtedness of any
cash, property or securities to which the Holders or the Debt Trustee would be
entitled except for the provisions of this Article XV, and no payment over
pursuant to the provisions of this Article XV to or for the benefit of the
holders of such Senior Indebtedness by Holders or the Debt Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness of
the Company, and the Holders, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Article XV are and are intended solely for the purposes of defining the
relative rights of the Holders, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
60
Nothing contained in this Article XV or elsewhere in
this Indenture or in the Debt Securities of any series is intended to or
shall (i) impair, as between the Company, its creditors other than the holders
of Senior Indebtedness of the Company, and the Holders of Debt Securities of any
series, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders of Debt Securities of any series the principal of, premium,
if any, and interest on such Debt Securities as and when the same shall become
due and payable in accordance with their terms, or (ii) affect the relative
rights of such Holders and creditors of the Company, as the case may be, other
than the holders of Senior Indebtedness of the Company, as the case may be, nor
shall anything herein or therein prevent the Debt Trustee or any such Holder
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XV of
the holders of such Senior Indebtedness in respect of cash, property or
securities of the Company, as the case may be, received upon the exercise of any
such remedy.
Upon any payment or distribution of assets of the
Company referred to in this Article XV, the Debt Trustee, subject to the
provisions of Article VI of this Indenture, and the Holders of Debt Securities
of any series shall be entitled to conclusively rely upon any order or decree
made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent
or other Person making such payment or distribution, delivered to the Debt
Trustee or to such Holders, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XV.
SECTION 15.05. Debt Trustee to Effectuate
Subordination.
Each Holder by such Holder's acceptance thereof
authorizes and directs the Debt Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XV and appoints the Debt Trustee such Holder's
attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a
Responsible Officer of the Debt Trustee of any fact known to the Company that
would prohibit the making of any payment of monies to or by the Debt Trustee in
respect of the Debt Securities of any series pursuant to the provisions of this
Article XV. Notwithstanding the provisions of this Article XV or any other
provision of this Indenture, the Debt Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment of monies to or by the Debt Trustee in respect of the Debt Securities of
any series pursuant to the provisions of this Article XV, unless and until a
Responsible Officer of the Debt Trustee shall have received written notice
thereof from the Company or a holder or holders of Senior
61
Indebtedness or from any trustee therefor; and before the receipt of any such
written notice, the Debt Trustee, subject to the provisions of Article VI of
this Indenture, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Debt Trustee shall not have received the
notice provided for in this Section 15.06 at least two Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Debt Security), then, anything herein
contained to the contrary notwithstanding, the Debt Trustee shall have full
power and authority to receive such money and to apply the same to the purposes
for which they were received, and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such date.
The Debt Trustee, subject to the provisions of
Article VI of this Indenture, shall be entitled to conclusively rely on a
written notice delivered to it by a Person representing himself to be a holder
of Senior Indebtedness of the Company (or a trustee on behalf of such holder),
as the case may be, to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee on behalf of any such holder or holders.
In the event that the Debt Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of such
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XV, the Debt Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Debt Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article XV, and, if such evidence is not
furnished, the Debt Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
Upon any payment or distribution of assets of the
Company referred to in this Article XV, the Debt Trustee and the Holders shall
be entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Debt Trustee or to
the Holders, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XV.
SECTION 15.07. Rights of the Debt Trustee; Holders
of Senior Indebtedness.
The Debt Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article XV in respect of any
Senior Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture
62
shall deprive the Debt Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of
the Company, the Debt Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in this Article
XV, and no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture against the Debt Trustee.
The Debt Trustee shall not be deemed to owe any fiduciary duty to the holders of
such Senior Indebtedness and, subject to the provisions of Article VI of this
Indenture, the Debt Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Holders, the Company or any
other Person money or assets to which any holder of such Senior Indebtedness
shall be entitled by virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of,
or payments to, the Debt Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any
Senior Indebtedness of the Company to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company, as the case may be, or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company,
as the case may be, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the Company may, at
any time and from time to time, without the consent of or notice to the Debt
Trustee or the Holders of Debt Securities of any series, without incurring
responsibility to such Holders and without impairing or releasing the
subordination provided in this Article XV or the obligations hereunder of such
Holders to the holders of such Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, such Senior Indebtedness, or otherwise amend
or supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Indebtedness; (iii) release
any Person liable in any manner for the collection of such Senior Indebtedness;
and (iv) exercise or refrain from exercising any rights against the Company, as
the case may be, and any other Person.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
63
SUNTRUST BANKS, INC.
By:
---------------------------------------
Name:
Title:
Bank One, N.A.,
as Debt Trustee
By:
---------------------------------------
Name:
Title:
64
