Exhibit 4.2
UNITED STATES STEEL CORPORATION, ISSUER
AND
THE BANK OF NEW YORK, TRUSTEE
---------------
INDENTURE
Dated as of ,
---------------
Subordinated Debt Securities
TABLE OF CONTENTS
ARTICLE ONE Definitions and Other Provisions of General Application ....... 1
SECTION 101. Definitions .............................................. 1
SECTION 102. Compliance Certificates and Opinions ..................... 9
SECTION 103. Form of Documents Delivered to Trustee ................... 9
SECTION 104. Acts of Holders; Record Dates ............................ 10
SECTION 105. Notices, Etc., to Trustee and Corporation ................ 11
SECTION 106. Notice to Holders; Waiver ................................ 11
SECTION 107. Conflict with Trust Indenture Act ........................ 11
SECTION 108. Effect of Headings and Table of Contents ................. 12
SECTION 109. Successors and Assigns ................................... 12
SECTION 110. Severability Clause ...................................... 12
SECTION 111. Benefits of Indenture .................................... 12
SECTION 112. Governing Law ............................................ 12
SECTION 113. Legal Holidays ........................................... 12
ARTICLE TWO Security Forms ................................................ 12
SECTION 201. Forms Generally .......................................... 12
SECTION 202. Form of Face of Security ................................. 13
SECTION 203. Form of Reverse of Security .............................. 14
SECTION 204. Form of Legend for Global Securities ..................... 18
SECTION 205. Form of Trustee's Certificate of Authentication .......... 18
i
ARTICLE THREE The Securities .............................................. 19
SECTION 301. Amount Unlimited; Issuable in Series ..................... 19
SECTION 302. Denominations ............................................ 21
SECTION 303. Execution, Authentication, Delivery and Dating ........... 22
SECTION 304. Temporary Securities ..................................... 23
SECTION 305. Registration, Registration of Transfer and Exchange ...... 23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities ......... 25
SECTION 307. Payment of Interest; Interest Rights Preserved ........... 26
SECTION 308. Persons Deemed Owners .................................... 27
SECTION 309. Cancellation ............................................. 27
SECTION 310. Computation of Interest .................................. 28
ARTICLE FOUR Satisfaction and Discharge ................................... 28
SECTION 401. Satisfaction and Discharge of Indenture .................. 28
SECTION 402. Application of Trust Money ............................... 29
ARTICLE FIVE Remedies ..................................................... 29
SECTION 501. Events of Default ........................................ 29
SECTION 502. Acceleration of Maturity; Rescission and Annulment ....... 31
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee ............................................... 32
SECTION 504. Trustee May File Proofs of Claim ......................... 33
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities ............................................ 33
SECTION 506. Application of Money Collected ........................... 34
SECTION 507. Limitation on Suits ...................................... 34
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest ..................................... 35
SECTION 509. Restoration of Rights and Remedies ....................... 35
SECTION 510. Rights and Remedies Cumulative ........................... 35
SECTION 511. Delay or Omission Not Waiver ............................. 36
SECTION 512. Control by Holders ....................................... 36
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SECTION 513. Waiver of Past Defaults .................................. 36
SECTION 514. Undertaking for Costs .................................... 36
SECTION 515. Waiver of Usury, Stay or Extension Laws .................. 37
ARTICLE SIX The Trustee ................................................... 37
SECTION 601. Certain Duties and Responsibilities ...................... 37
SECTION 602. Notice of Defaults ....................................... 37
SECTION 603. Certain Rights of Trustee ................................ 37
SECTION 604. Not Responsible for Recitals or Issuance of Securities ... 38
SECTION 605. Trustee May Hold Securities .............................. 39
SECTION 606. Money Held in Trust ...................................... 39
SECTION 607. Compensation, Reimbursement, Indemnification ............. 39
SECTION 608. Conflicting Interests .................................... 40
SECTION 609. Corporate Trustee Required; Eligibility .................. 40
SECTION 610. Resignation and Removal; Appointment of Successor ........ 40
SECTION 611. Acceptance of Appointment by Successor ................... 42
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business .............................................. 43
SECTION 613. Preferential Collection of Claims Against Corporation .... 43
SECTION 614. Appointment of Authenticating Agent ...................... 43
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Corporation ....... 45
SECTION 701. Corporation to Furnish Trustee Names and Addresses
of Holders ............................................... 45
SECTION 702. Preservation of Information; Communications to Holders ... 46
SECTION 703. Reports by Trustee ....................................... 46
SECTION 704. Reports by Corporation ................................... 46
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease ........ 47
SECTION 801. Corporation May Consolidate, Etc., Only on Certain Terms . 47
SECTION 802. Successor Substituted .................................... 47
SECTION 803. Trustee Entitled to Opinion .............................. 48
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ARTICLE NINE Supplemental Indentures ...................................... 48
SECTION 901. Supplemental Indentures Without Consent of Holders ....... 48
SECTION 902. Supplemental Indentures With Consent of Holders .......... 49
SECTION 903. Execution of Supplemental Indentures ..................... 50
SECTION 904. Effect of Supplemental Indentures ........................ 51
SECTION 905. Conformity with Trust Indenture Act ...................... 51
SECTION 906. Reference in Securities to Supplemental Indentures ....... 51
ARTICLE TEN Covenants ..................................................... 51
SECTION 1001. Payment of Principal, Premium and Interest .............. 51
SECTION 1002. Maintenance of Office or Agency ......................... 51
SECTION 1003. Money for Securities Payments to Be Held in Trust ....... 52
SECTION 1004. Statement by Officers as to Default ..................... 53
SECTION 1005. Waiver of Certain Covenants ............................. 54
ARTICLE ELEVEN Redemption of Securities ................................... 54
SECTION 1101. Applicability of Article ................................ 54
SECTION 1102. Election to Redeem; Notice to Trustee ................... 54
SECTION 1103. Selection by Trustee of Securities to Be Redeemed ....... 55
SECTION 1104. Notice of Redemption .................................... 55
SECTION 1105. Deposit of Redemption Price ............................. 56
SECTION 1106. Securities Payable on Redemption Date ................... 56
SECTION 1107. Securities Redeemed in Part ............................. 57
ARTICLE TWELVE Sinking Funds .............................................. 57
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SECTION 1201. Applicability of Article ................................ 57
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities ... 57
SECTION 1203. Redemption of Securities for Sinking Fund ............... 58
ARTICLE THIRTEEN Defeasance ............................................... 58
SECTION 1301. Corporation's Option to Effect Defeasance ............... 58
SECTION 1302. Defeasance and Discharge ................................ 58
SECTION 1303. Covenant Defeasance ..................................... 59
SECTION 1304. Conditions to Defeasance or Covenant Defeasance ......... 59
SECTION 1305. Deposited Money, U.S. Government Obligations and
Defeased Municipal Obligations to Be Held in Trust;
Miscellaneous Provisions ................................ 61
SECTION 1306. Reinstatement ........................................... 62
ARTICLE FOURTEEN Subordination of Securities.............................. 62
SECTION 1401. Securities Subordinate to Senior Debt.................... 62
SECTION 1402. Payment over of Proceeds upon Dissolution, Etc........... 62
SECTION 1403. No Payment when Senior Debt in Default................... 63
SECTION 1404. Payment Permitted in Certain Situations.................. 64
SECTION 1405. Subrogation to Rights of Holders of Senior Debt.......... 64
SECTION 1406. Provisions Solely to Define Relative Rights.............. 64
SECTION 1407. Trustee to Effectuate Subordination...................... 65
SECTION 1408. No Waiver of Subordination Provisions.................... 65
SECTION 1409. Notice to Trustee........................................ 66
SECTION 1410. Reliance on Judicial Order or Certificate of Liquidating
Agent.................................................... 66
SECTION 1411. Trustee Not Fiduciary For Holders of Senior Debt......... 67
SECTION 1412. Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights...................................... 67
SECTION 1413. Article Applicable to Paying Agents...................... 67
SECTION 1414. Certain Conversions or Exchanges Deemed Payment.......... 67
SECTION 1415. Defeasance of this Article Fourteen...................... 68
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CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST
INDENTURE INDENTURE
ACT SECTION SECTION
----------- -------
Section 310(a)(1)....... 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 609
(b) 608
610
Section 311(a).......... 613
(b) 613
Section 312(a).......... 701
702
(b) 702
(c) 702
Section 313(a).......... 703
(b) 703
(c) 703
(d) 703
Section 314(a).......... 704
(a)(4) 101
1004
(b) Not Applicable
(c) (1) 102
(c) (2) 102
(c) (3) Not Applicable
(d) Not Applicable
(e) 102
Section 315(a).......... 601
603
(b) 602
(c) 601
(d)(1) 601
(d)(2) 601
603
(d)(3) 601
603
(e) 514
Section 316(a).......... 101
(a)(1)(A) 502
512
(a) (1)(B) 513
(a) (2) Not Applicable
(b) 508
(c) 104
Section 317(a)(1)....... 503
(a)(2) 504
(b) 1003
Section 318(a).......... 107
(b) 107
(c) 101
107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
INDENTURE, dated as of , , between United States Steel
Corporation, a Delaware corporation (the "Corporation"), having its principal
office at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, and The Bank of
New York, a New York banking corporation, as Trustee (the "Trustee").
For and in consideration of the premises and the purchase of
subordinated debentures, notes, bonds or other debt instruments (the
"Securities" by the holders thereof (the "Holders"), it is mutually agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise express, requires the following shall
apply:
(1) The terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) All other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise
expressly provided herein, the term "generally accepted
accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such
computation;
(4) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Indenture; and
(5) The words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means the board of directors of the Corporation or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means a
day that is not a day on which banking institutions in that Place of Payment are
authorized or obligated by law or executive order to close.
"Commission" means the United States Securities and Exchange
Commission.
"Corporation" means United States Steel Corporation or its successor.
"Corporation Request" or "Corporation Order" means a written request or
order signed in the name of the Corporation by its Chairman of the Board, any
Vice Chairman of the Board, Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer or any Vice President, and by its Treasurer,
any Assistant Treasurer, the Comptroller, any Assistant Comptroller, its
Secretary or any Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate value of all
assets of the Corporation and its Subsidiaries after deducting therefrom (a) all
current liabilities (excluding all long-term debt due within one year), (b) all
investments in unconsolidated subsidiaries and all investments accounted for on
the equity basis, and (c) all goodwill, patents and trademarks, unamortized debt
discounts and other similar intangibles (all determined in conformity with
generally accepted accounting principles and calculated on a basis consistent
with the Corporation's most recent audited consolidated financial statements).
2
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which at the date of original execution of this Indenture is located at The Bank
of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286,
Attention: Corporate Trust Administration.
"corporation" includes associations, corporations, companies, limited
liability companies, and business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Defeased Municipal Obligations" means obligations issued by any state,
county, city or other unit of local government, or any authority or similar
governmental body located in the United States of America, the interest on which
is not included in gross income for federal income tax purposes provided that:
(i) such obligations are (a) not subject to redemption prior to
their respective stated maturity dates or (b) irrevocable
instructions concerning their call and redemption have been
given to a trustee or paying agent or escrow agent, and the
issuer of such obligations has irrevocably waived the right to
redeem them other than as set forth in such instructions;
(ii) the obligations are secured by cash and/or by U.S. Government
Obligations that may be applied only to interest, principal,
and premium payments of such obligations;
(iii) the principal of and interest on the U.S. Government
Obligations (plus any cash in the escrow fund) are sufficient
to meet the liabilities of the obligations;
(iv) the U.S. Government Obligations securing such obligations are
held by an escrow agent or trustee organized under the laws of
the United States of America or any state thereof;
(v) the U.S. Government Obligations are not available to satisfy
any other claims, including those against the trustee or
escrow agent that holds the U.S. Government Obligations; and
(vi) the obligations are rated Aaa by Moody's or AAA by S&P.
"Depositary" means, with respect to Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"Dollar" means the coin or currency of the United States as at the time
of payment is legal tender for the payment of public and private debts.
"Establishment Action" shall mean:
3
(i) a resolution duly adopted by the Corporation's Board of
Directors establishing one or more series of Securities and
authorizing the issuance of any Security or,
(ii) a resolution or action by a committee, officer or employee of
the Corporation, establishing one or more series of Securities
and/or authorizing the issuance of any Security, in each case,
pursuant to a resolution duly adopted by the Corporation's
Board of Directors.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Foreign Currency" means a currency of the government, or governments,
of any country, or countries, other than the United States of America.
"Foreign Government Obligations" means, with respect to the Securities
of any series that are denominated in a Foreign Currency, securities that are
(i) direct obligations of the government, or governments, that
issued or caused to be issued such currency for the payment of
which obligations its, or their, full faith and credit is
pledged or,
(ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of such government, or
governments, the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by such
government, or governments,
that in either case under clauses (i) or (ii), are not callable or redeemable at
the option of the issuer thereof.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto.
"interest", when used with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Junior Securities" has the meaning specified in Section 1414 (a).
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
4
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" means, as the context may require, (i) to mortgage, pledge,
encumber or subject to a lien or (ii) a mortgage, pledge, encumbrance or lien.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, any Vice Chairman of the Board, Chief Executive Officer, President,
Chief Operating Officer, Chief Financial Officer or any Vice President, and by
the Treasurer, any Assistant Treasurer, the Comptroller, any Assistant
Comptroller, the Secretary or any Assistant Secretary, of the Corporation, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Corporation.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of, or counsel to, the Corporation, and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Corporation) in
trust or set aside and segregated in trust by the Corporation
(if the Corporation shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities
are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant
to Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or
issued in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Corporation;
5
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date,
(A) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding shall
be the amount of the principal thereof that would be
due and payable as of such date of such determination
upon acceleration of the Maturity thereof to such
date pursuant to Section 502,
(B) if, as of such date, the principal amount payable at
the Stated Maturity of a Security is not
determinable, the principal amount of such Security
that shall be deemed to be Outstanding shall be the
amount as specified or determined as contemplated by
Section 301,
(C) the principal amount of a Security denominated in one
or more foreign currencies or currency units that
shall be deemed to be Outstanding shall be the U.S.
dollar equivalent, determined as of such date in the
manner provided as contemplated by Section 301, of
the principal amount of such Security (or, in the
case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such
Clause), and
(D) Securities owned by the Corporation or any other
obligor upon the Securities or any Affiliate of the
Corporation or of such other obligor shall be
disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or
other action, only Securities which the Trustee knows
to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Corporation or any other obligor upon the Securities or any Affiliate
of the Corporation or of such other obligor.
"Paying Agent" means the Corporation or any Person authorized by the
Corporation to pay the principal of and/or any premium or interest on any
Securities on behalf of the Corporation.
"Person" means any individual, association, corporation, partnership,
joint venture, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and/or any premium or
interest on the Securities of that series are payable as specified as
contemplated by Section 301(6).
"Predecessor Security" of any particular Security means every previous
Security
6
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any blast furnace facility or steel
producing facility, or casters that are part of a plant that includes such a
facility, having a net book value in excess of 1% of Consolidated Net Tangible
Assets at the time of determination.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" shall mean, with respect to the Corporation, the
principal, premium, if any, and interest on
(i) all indebtedness of the Corporation, whether outstanding on the
date hereof or hereafter created, incurred or assumed, which is
for money borrowed, or evidenced by a note or similar instrument
given in connection with the acquisition of any business,
properties or assets, including securities;
(ii) any indebtedness of others of the kinds described in the
preceding clause (i) for the payment of which the Corporation is
responsible or liable (directly or indirectly, contingently
or otherwise) as guarantor or otherwise; and
(iii) amendments, renewals, extensions and refundings of any such
indebtedness, unless in any instrument or instruments evidencing
or securing such indebtedness or pursuant to which the same is
outstanding, or in any such amendment, renewal, extension or
refunding, it is expressly provided that such indebtedness is not
superior in right of payment to the Securities of any series.
The Senior Debt shall continue to be Senior Debt and entitled to the
benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any term of the Senior Debt or extension or renewal of
the Senior Debt.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation or other business entity where more
than 50% of the outstanding Voting Stock of which is owned, directly or
indirectly, by the Corporation or by one or more other Subsidiaries, or by the
Corporation and one or more other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that if
the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture
Act" means, to the
7
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"United States" means the United States of America (including the
states and the District of Columbia) and its possessions at the relevant date.
"U.S. Government Obligation" means:
(x) any security that is:
(i) a direct obligation of the United States of America
for the payment of which the full faith and credit of
the United States of America is pledged or
(ii) an obligation 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,
that, in either case (i) or (ii), is not callable or redeemable at the
option of the issuer thereof, and
(y) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government
Obligation which is specified in Clause (x) above and
held by such bank for the account of the holder of
such depositary receipt, or with respect to any
specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and
held, 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
depositary receipt from any amount received by the
custodian in respect of the U.S. Government
Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.
"Vice President", when used with respect to the Corporation or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Power" means the total voting power represented by all
outstanding shares of all classes of Voting Stock.
"Voting Stock" means a corporation's or other business entity's stock
or other equity interests of any class or classes (however designated),
including membership
8
interests, membership shares or other similar equity interests, having ordinary
Voting Power for the election of the directors of such entity, other than stock
having such power only by reason of the happening of a contingency.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Corporation to the Trustee to
take any action under any provision of this Indenture, the Corporation shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the
Corporation, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
9
information with respect to such factual matters is in the possession of the
Corporation, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by, an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is herein expressly required, to the
Corporation. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Corporation, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner the Trustee deems sufficient.
The Security Register shall prove the ownership of Securities.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Corporation
in reliance thereon, whether or not notation of such action is made upon such
Security.
The Corporation may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders of
Securities. If not set by the Corporation prior to the first solicitation of a
Holder of Securities made by any Person in respect of any such action, or, in
the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided) prior to such first solicitation or
vote, as the case may be. With regard to any
10
record date, only the Holders of Securities on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the relevant
action.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND CORPORATION.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Corporation shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Corporation by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Corporation addressed to:
the address last furnished in writing to the Trustee by the
Corporation, or, if no such address has been furnished,
Treasurer, United States Steel Corporation, 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at the address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, the Person entitled to receive such notice, either before or
after the event, may waive such notice in writing and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
11
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Corporation shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEVERABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security that specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by an
Establishment Action 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 the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution
12
thereof. If the form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Corporation
and delivered to the Trustee at or prior to the delivery of the Corporation
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
SECTION 202. FORM OF FACE OF SECURITY.
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
UNITED STATES STEEL CORPORATION
[Insert title of the Series of Subordinated Debt Securities]
No.____________$____________
UNITED STATES STEEL CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Corporation", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum of ________________
Dollars on ________________ [if the Security is to bear interest prior to
Maturity, insert -- , and to pay interest thereon from ________________ or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on ________________ and ________________ in each
year, commencing ____________, at the rate of ____% per annum, until the
principal hereof is paid or made available for payment ][if applicable, insert
-- , provided that any principal and premium, and any such installment of
interest, which is overdue shall bear interest at the rate of ____% per annum
(to the extent that the payment of such interest shall be legally enforceable),
from the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the
________________ or ________________ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum
13
(to the extent that the payment of such interest shall be legally enforceable),
from the dates such amounts are due until they are paid or made available for
payment. Interest on any overdue principal or premium shall be payable on
demand.
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Corporation maintained for that purpose in ________________, in
such [coin or currency of the United States of America] [Foreign Currency,
consistent with the provisions below,] as at the time of payment is legal tender
for payment of public and private debts [if applicable, insert -- ; provided,
however, that at the option of the Corporation payment of interest may be made
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or by electronic funds transfer to an
account maintained by the Person entitled thereto as specified in the Security
Register, provided that such Person shall have given the Trustee written
instructions].
[If the security is payable in a foreign currency, insert the
appropriate provision.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
Dated:
UNITED STATES STEEL CORPORATION
By _____________________________________
Attest: ________________________________
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of subordinated debt
securities of the Corporation (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of
________________________,(herein called the "Indenture", which term shall have
the meaning assigned to it in such instrument), between the Corporation and The
Bank of New York, as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Corporation, the Trustee and the Holders
of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert -- , limited in aggregate principal
amount to $________].
[If applicable, insert -- The Securities of this series are subject
to redemption upon not less than 30 days' notice by mail, [if applicable, insert
-- (1) on ________________ in any year commencing with the year ________ and
ending with
14
the year ________ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after ________________, 20____], as a whole or in
part, at the election of the Corporation, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [if applicable,
insert -- on or before ________________, ____%, and if redeemed] during the
12-month period beginning ________________ of the years indicated,
Year Redemption Price
---- ----------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject
to redemption upon not less than 30 days' notice by mail, (1) on
________________ in any year commencing with the year ______ and ending with the
year ______ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [if applicable, insert -- on or after ______], as a whole or
in part, at the election of the Corporation, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning ________________ of the years indicated,
REDEMPTION REDEMPTION PRICE FOR
PRICE FOR REDEMPTION OTHERWISE
REDEMPTION THAN THROUGH
THROUGH OPERATION OF THE
YEAR OPERATION OF THE SINKING FUND
---- SINKING FUND ---------------------
----------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof, all
as provided in the Indenture.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on __________ in each year beginning with the year ______ and
ending with the year ______ of [if applicable, insert -- not less than $________
("mandatory sinking fund") and not more than] $________ aggregate principal
amount of Securities of
15
this series. Securities of this series acquired or redeemed by the Corporation
otherwise than through [if applicable, insert -- mandatory] sinking fund
payments may be credited against subsequent [if applicable, insert -- mandatory]
sinking fund payments otherwise required to be made [if applicable, insert -- ,
in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions of
the Indenture, (b) authorizes and directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Debt, whether now outstanding or hereafter incurred, and waives reliance
by each such Holder upon said provisions.
[If applicable, insert -- The Securities shall [not be superior in
right of payment to, and shall] rank pari passu with[,] -- insert description
of existing debt of the Company that is intended to rank on a parity with the
Securities.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment of
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
[If applicable, insert a paragraph regarding the indexing of the
Security.]
[If applicable, insert a paragraph regarding conversion or exchange of
the Security.]
The Indenture contains provisions permitting the Corporation and the
Trustee to modify the Indenture or any supplemental indenture without the
consent of the Holders for one or more of the following purposes: (1) to
evidence the succession of another corporation to the Corporation; (2) to add to
the covenants of the Corporation further covenants, restrictions, conditions or
provisions; (3) to add additional events of default for the benefit of Holders
of all or any series of Securities; (4) to add to or change
16
provisions of the Indenture to allow the issuance of Securities in other forms;
(5) to add to, change or eliminate any of the provisions of the Indenture in
respect of one or more series of Securities thereunder, under certain conditions
specified therein; (6) to secure the Securities; (7) to establish the form or
terms of Securities of any series as permitted by Sections 201 and 301 of the
Indenture; (8) to evidence the appointment of a successor Trustee; (9) to make
provision with respect to any conversion or exchange rights as specified as
contemplated pursuant to Section 301 of the Indenture; and (10) to cure any
ambiguity, to correct or supplement any provision of the Indenture which may be
defective or inconsistent with any other provision of the Indenture, or to make
any other provisions with respect to matters or questions arising under the
Indenture that do not materially adversely affect the interests of the Holders
in any material respect.
The Indenture also permits, with certain exceptions set forth therein,
the amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Corporation and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
at the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of such series, to waive compliance by the
Corporation with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Corporation,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth,
17
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Corporation in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $________ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Corporation or the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of transfer,
the Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may be
registered, in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture.
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
The Bank of New York,
18
As Trustee
By ________________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
The terms of each series of Securities shall be either
(i) established in an Establishment Action or
(ii) established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series.
Such Establishment Action or supplemental indenture shall provide:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of
any other series) and a statement that the Securities will be
offered pursuant to this Indenture;
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and
except for any Securities that, pursuant to Section 303, are
deemed never to have been authenticated and delivered
hereunder) and the price (expressed as a percentage of the
aggregate principal amount thereof) at which the Securities of
the series will be issued;
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest;
(4) the date or dates on which the principal of any Securities of
the series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date;
19
(6) the place or places where the principal of and/or any premium
or interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which, the currency or currencies (including currency units)
in which and the other terms and conditions upon which any
Securities of the series may be redeemed, in whole or in part,
at the option of the Corporation and, if other than by a Board
Resolution, the manner in which any election by the
Corporation to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Corporation to redeem or
purchase any Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of the Holder
thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which any
Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of
the series shall be issuable;
(10) if the amount of principal of or any premium or interest on
any Securities of the series may be determined with reference
to an index, pursuant to a formula or other method, the manner
in which such amounts shall be determined;
(11) if other than the currency of the United States of America,
the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of
the series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of
America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of
the Corporation or the Holder thereof, in one or more
currencies or currency units other than that or those in which
such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any
premium or interest on such Securities as to which such
election is made shall be payable, the periods within which
and the terms and conditions upon which such election is to be
made and the amount so payable (or the manner in which such
amount shall be determined);
(13) if other than the entire principal amount thereof, the portion
of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any
one or more dates prior to the Stated Maturity, the amount
which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose
20
thereunder or hereunder, including the principal amount
thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or,
in any such case, the manner in which such amount deemed to be
the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or
any specified part, shall be defeasible pursuant to Section
1302 or Section 1303 or both such Sections (or, if defeasible
by another method, such other method) and, if other than by an
action pursuant to a Board Resolution, the manner in which any
election by the Corporation to defease such Securities shall
be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for
such Global Securities, the form of any legend or legends
which shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 204 and any
circumstances in addition to or in lieu of those set forth in
Clause (2) of the last paragraph of Section 305 in which any
such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global
Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global
Security or a nominee thereof;
(17) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the
right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and
payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series;
(19) if the Securities are subordinate other than in accordance
with Article Fourteen, such other subordination provisions;
and
(20) if the Securities of the series are convertible into, or
exchangeable for, other securities, the terms and conditions
pursuant to which the Securities of the series will be
convertible or exchangeable; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in the
Establishment Action referred to above or in any indenture supplemental hereto.
The Corporation shall provide to the Trustee a copy of any such Establishment
Action. The Securities shall be subordinated in right of payment to Senior Debt
as provided in Article Fourteen and/or as specified as contemplated pursuant to
this section.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations
21
of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Corporation by its
Chairman of the Board, any Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Treasurer or an Assistant Treasurer or its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. The seal of the Corporation may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Security.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Corporation shall bind the
Corporation, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Corporation may deliver Securities of any series executed by
the Corporation to the Trustee for authentication, together with a Corporation
Order for the authentication and delivery of such Securities, and the Trustee in
accordance with the Corporation Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established by one or more Establishment Actions as permitted by Sections 201
and 301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by an
Establishment Action as permitted by Section 201, that such
form has been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have been established by an
Establishment Action as permitted by Section 301, that such
terms have been established in conformity with the provisions
of this Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Corporation in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations
of the Corporation enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if
22
all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Establishment Action otherwise required pursuant
to Section 301 or the Corporation Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Corporation, and the Corporation shall deliver
such Security to the Trustee for cancellation as provided in Section 309, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Corporation Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Corporation will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Corporation in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Corporation shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Corporation shall cause to be kept in an office or agency of the
Corporation in a Place of Payment a register (the register maintained in any
such office or agency of the Corporation in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Corporation shall
provide for the registration of Securities and of transfers
23
of Securities. The Trustee, or any other party serving in such capacity with the
Trustee's consent, is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series
at the office or agency of the Corporation in a Place of Payment for that
series, the Corporation shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Corporation shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Corporation, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Corporation or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Corporation shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (B) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of the following clauses shall apply only to Global
Securities:
(1) Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for
such Global Security or a nominee thereof and delivered to
such Depositary or a nominee thereof or custodian therefor,
and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
24
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Security or a
nominee thereof unless
(A) such Depositary
(i) has notified the Corporation that it is
unwilling or unable to continue as
Depositary for such Global Security or
(ii) has ceased to be a clearing agency
registered under the Exchange Act,
(B) there shall have occurred and be continuing an Event
of Default with respect to such Global Security or
(C) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section
301.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this
Section, Section 304, 306, 906 or 1107 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global
Security or a nominee thereof.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Corporation shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and
(ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless,
then, in the absence of notice to the Corporation or the Trustee that such
Security has been acquired by a bona fide purchaser, the Corporation shall
execute and the Trustee
25
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Corporation in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Corporation may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Corporation, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Corporation, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Corporation may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Corporation shall notify
the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the
Corporation shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held
in trust for the
26
benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
that shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Corporation of such Special Record Date and, in the name and
at the expense of the Corporation, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given to each Holder of Securities
of such series in the manner set forth in Section 106, not
less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The Corporation may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by
the Corporation to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
If the Securities of the series are convertible or exchangeable and
unless otherwise specified as contemplated by Section 301, in the case of any
Security of such series which is converted or exchanged after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion or exchange, and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted or exchanged, interest whose Stated Maturity
is after the date of conversion or exchange of such Security shall not be
payable.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Corporation, the Trustee nor any agent of the Corporation or the Trustee shall
be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Corporation may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Corporation may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Corporation has not issued and sold, and all
27
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. Until directed otherwise by a Corporation Order, all cancelled
Securities held by the Trustee shall be conspicuously marked as such and, if
destroyed, the Trustee shall deliver to the Corporation a certificate with
respect to such destruction.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Corporation Request cease to be of further
effect with respect to any (or all) series of Securities (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, at the expense of the Corporation,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and
delivered (other than
(i) Securities which have been destroyed, lost
or stolen and which have been replaced or
paid as provided in Section 306 and
(ii) Securities for whose payment money has
theretofore been deposited in trust or
segregated and held in trust by the
Corporation and thereafter repaid to the
Corporation or discharged from such trust,
as provided in Section 1003)
have been delivered to the Trustee for cancellation;
or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of
28
notice of redemption by the Trustee in the
name, and at the expense, of the
Corporation,
and the Corporation, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date of
such deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Corporation has paid or caused to be paid all other sums
payable hereunder by the Corporation; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to
such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation to the Trustee under Section 607, the obligations
of the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402, Article Six and
the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on
any Security
29
of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Corporation 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 or
which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series),
and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified
mail, to the Corporation by the Trustee or to the Corporation
and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series 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
(5) the entry by a court having jurisdiction in the premises of a
decree or order
(A) for relief in respect of the Corporation in an
involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law;
(B) adjudging the Corporation a bankrupt or insolvent or
approving as properly filed a petition seeking
reorganization, arrangement, adjustment or
composition of or in respect of the Corporation under
any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law;
(C) appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar
official of the Corporation or of any substantial
part of its property; or
(D) ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or
order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive
days;
or
(6) (A) the commencement by the Corporation of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law to be
adjudicated a bankrupt or insolvent;
30
(B) the consent by the Corporation to the entry of a
decree or order for relief in respect of it in an
involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or the consent by
it to the commencement of any bankruptcy or
insolvency case or proceeding against it;
(C) the filing by the Corporation of a petition or answer
or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent
by the Corporation to the filing of such petition;
(D) the consent by the Corporation to the appointment of
or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official of the Corporation or of any
substantial part of its property;
(E) the making by the Corporation of an assignment for
the benefit of creditors;
(F) the admission by the Corporation in writing of its
inability to pay its debts generally as they become
due; or,
(G) the taking of corporate action by the Corporation in
furtherance of any such action;
or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Corporation (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(5)
or 501(6) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders
31
of a majority in principal amount of the Outstanding Securities of that series,
by written notice to the Corporation and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Corporation has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that
series that have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Corporation covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Corporation will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates (or
yield to maturity in the case of Original Issue Discount Securities) prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
32
Trustee, its agents and counsel, except as a result of the Trustee's negligence
or bad faith.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Corporation (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607 except as a result of its negligence or bad faith.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel (except no such provision shall
be made respecting compensation, expenses, disbursements and advances made as a
result of Trustee's negligence), be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.
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SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith.
SECOND: Subject to Article Fourteen, in case the principal of the
outstanding Securities of any series in respect of which such moneys have been
collected shall not have become due, to the payment of interest on the
Securities of such series, in the order of maturity of the installments of such
interest, with interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the same rate or the
yield to maturity (in the case of Original Issue Discount Securities) specified
on the Securities of such series, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference.
THIRD: Subject to Article Fourteen, in case the principal of the
outstanding Securities of any series in respect of which such moneys have been
collected shall have become due, by declaration, or otherwise, to the payment of
the whole amount then owing and unpaid upon the Securities of such series for
principal, premium (if any) and interest, with interest upon the overdue
principal, premium (if any) and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the same rate
or the yield to maturity (in the case of Original Issue Discount Securities)
specified on the Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal, premium (if
any) and interest, without preference or priority of principal and premium (if
any), or of any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid interest.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that
series;
(2) The Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity
34
against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Corporation, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
35
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default:
(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Corporation.
36
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Corporation covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Corporation (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event or events, as the
case may be, specified in Section 501, not including periods of grace, if any,
provided for therein.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, action, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Corporation mentioned herein shall
be sufficiently evidenced by a Corporation Request or Corporation
Order, and any resolution of the Board of Directors or Establishment
Action may
37
be sufficiently evidenced by a Board Resolution or Establishment
Action, as the case may be;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, action, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the
Corporation, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken 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.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Corporation, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Corporation of Securities or the proceeds thereof.
38
SECTION 605. TRUSTEE MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee, or any Paying Agent, in trust hereunder need
not be segregated from other funds except to the extent required by law. Neither
the Trustee nor any Paying Agent shall be under any liability for interest on
any money received by it hereunder except as otherwise agreed in writing with
the Corporation.
SECTION 607. COMPENSATION, REIMBURSEMENT, INDEMNIFICATION.
The Corporation agrees as follows:
(1) to pay to the Trustee from time to time reasonable compensation as
shall be agreed in writing between the Corporation and the Trustee
for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder and the costs and expenses of enforcing this right
to indemnification.
If any action, suit or proceeding is brought against any Trustee in
connection with any claim for which it is entitled to indemnity hereunder, it
shall promptly (but no later than ten days following service) notify the
Corporation in writing enclosing a copy of all papers served. All counsel
employed to defend any such claim shall be retained directly by the Corporation
and may serve as counsel to the Corporation and/or one or more Trustees. Absent
a conflict of interest, the Corporation shall not be required to pay the fees
and expenses of more than one law firm in connection with its obligations
hereunder. A Trustee entitled to indemnification may, in addition to counsel
engaged by the Corporation, engage counsel to represent such party at that
party's sole expense. Notwithstanding any other provision of this Indenture, the
Corporation shall not be liable
39
to pay any settlement agreed to without its written consent.
SECTION 608. CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series or a trustee under the indenture
dated July 27, 2001 between the Corporation and the Trustee.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the
Corporation. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Corporation. If the instrument
of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the Trustee being removed may
petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
40
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Corporation or by any Holder
who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the
Corporation or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case,
(A) the Corporation by a Board Resolution may remove the
Trustee with respect to all Securities, or
(B) subject to Section 514, any Holder who has been a bona
fide Holder of a Security for at least six months may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the
Corporation, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or
all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 611. If,
within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Corporation and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with
the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Corporation.
If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Corporation or the Holders and
accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all others
41
similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Corporation shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series
in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Corporation and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Corporation or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Corporation, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and
42
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Corporation shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST CORPORATION.
If and when the Trustee shall be or become a creditor of the Corporation
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Corporation (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent must be
acceptable to the Corporation and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
43
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
In case at the time such successor to any Authenticating Agent with
respect to any series shall succeed to such Authenticating Agent, any of the
Securities of such series shall have been authenticated but not delivered, any
such successor to such Authenticating Agent may adopt the certificate of
authentication of any predecessor Authenticating Agent and deliver such
Securities so authenticated; and in case at that time any of the Securities of
such series shall not have been authenticated, any successor to any
Authenticating Agent may authenticate such Securities either in the name of any
predecessor hereunder or in the name of successor Authenticating Agent; and in
all such cases such certificate shall have the full force which it is anywhere
in the Securities of such series or in this Indenture provided that the
certificate of the predecessor Authenticating Agent shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Authenticating Agent or to authenticate Securities in the name of
any predecessor Authenticating Agent shall apply only to its successor or
successors by merger, conversion or consolidation.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Corporation. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Corporation. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which must be acceptable to the Corporation and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have agreed with the Trustee that: it will perform and carry out the
duties of an Authenticating Agent as herein set forth; it will keep and maintain
and furnish to the Trustee from time to time as requested by the Trustee
appropriate records of all transactions carried out by it as Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; it is eligible for
44
appointment as Authenticating Agent under this Section 614 and will notify the
Trustee promptly if it shall cease to be so qualified; and it will indemnify the
Trustee against any loss, liability or expense incurred by the Trustee and will
defend any claim asserted against the Trustee by reason of acts or failures to
act of the Authenticating Agent but it shall have no liability for any action
taken by it at the specific written direction of the Trustee.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York, As Trustee
By________________________________________
As Authenticating Agent
By _______________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
SECTION 701. CORPORATION TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Corporation will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than June 30 and December 31 in each year,
a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as
of a date no more than 15 days prior to the date such list is
furnished, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Corporation of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
45
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee, or its designee, in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Corporation and the Trustee that neither the Corporation nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than sixty days after each May 1
following the date of first issuance.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Corporation. (The
Corporation will notify the Trustee when any Securities are listed on any stock
exchange pursuant to Section 704.)
SECTION 704. REPORTS BY CORPORATION.
The Corporation shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
The Corporation shall notify the Trustee when any Securities are listed on
any stock exchange.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. CORPORATION MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Corporation covenants that it will not merge or consolidate with any
other Person or sell or convey all or substantially all of its assets to any
Person, except that the Corporation may merge or consolidate with, or sell or
convey all or substantially all of its assets to, any other Person, provided
that
(1) (a) the Corporation shall be the continuing Person or
(b) (i) the successor Person (if other than the Corporation) shall
be a Person organized and existing under the laws of the
United States of America or a State thereof and
(ii) such Person shall expressly assume the due and punctual
payment of the principal of and any premium and interest
on all the Securities, according to their tenor, and the
due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be
performed by the Corporation
and
(2) the Corporation or such successor Person, as the case may be, shall
not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or
condition and no event which with the lapse of time, the giving of
notice or both would constitute an Event of Default shall have
occurred and be continuing.
For purposes of this Section 801, "substantially all of its assets" shall
mean, at any date, a portion of the non-current assets reflected in the
Corporation's consolidated balance sheet as of the end of the most recent
quarterly period that represents at least sixty-six and two-thirds percent
(66 2/3%) of the total reported value of such assets.
SECTION 802. SUCCESSOR SUBSTITUTED.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person of the obligations under this Indenture and
the Securities in accordance with Section 801, such successor Person shall
succeed to and be substituted for the Corporation, with the same effect as if it
had been named herein as a party hereto, and the Corporation shall thereupon be
relieved of any further obligations or liabilities hereunder and upon the
Securities and the Corporation as the predecessor Person may thereupon or at any
time thereafter be dissolved, wound-up or liquidated. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in the
name of the predecessor corporation, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Corporation and
delivered to the Trustee and, upon the order of such successor Person, instead
of the Corporation, and subject to all the terms, conditions and limitations in
this
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Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Corporation to the Trustee for authentication and any Securities which
such successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
SECTION 803. TRUSTEE ENTITLED TO OPINION.
The Trustee, subject to the provisions of Sections 601 and 603, may
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale or conveyance, and any such assumption, complies
with the provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Corporation, when authorized by
its Board of Directors, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for one or more of the following purposes:
(1) to evidence the succession of another Person to the Corporation and
the assumption by any such successor of the covenants of the
Corporation herein and in the Securities; or
(2) to add to the covenants of the Corporation for the benefit of the
Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power
herein conferred upon the Corporation; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series
of Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
48
(5) To add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination
(A) shall neither
(i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to
the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security
with respect to such provision
or
(B) shall become effective only when there is no such Security
Outstanding;
or
(6) to secure the Securities of any series; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(9) to make provision with respect to any conversion or exchange rights
contemplated by Section 301; or
(10) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision
herein; or
(11) to make such amendments that do not adversely affect the interests
of the Holders of Securities of any series in any material respect;
or
(12) to add, change or eliminate any provision of this Indenture as shall
be necessary or desirable in accordance with any amendments to the
Trust Indenture Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Corporation and
the Trustee, the Corporation, when authorized by its Board of Directors, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any
49
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest or premium on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or
change the coin or currency in which any Security or any premium or
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or adversely affect any right of the Holder of any
Security to require the Corporation to repurchase such Security
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders
is required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
1005, except to increase any percentage set forth in such Sections
or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1005.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee
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may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Corporation shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Corporation, to any such supplemental indenture
may be prepared and executed by the Corporation and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of (including any amount in respect of original issue discount) and
any premium and interest on each of the Securities of such series at the Place
of Payment, at the respective times and in the manner provided in the Securities
and this Indenture. The principal of, premium, and interest on the Securities
shall be payable only in accordance with the terms of the relevant Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Corporation will maintain an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Corporation in respect of the Securities of
that series and this Indenture may be served. The Corporation will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Corporation shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, or an affiliate of the
Trustee, and the Corporation hereby appoints the Trustee as its agent to receive
all such
51
presentations, surrenders, notices and demands.
The Corporation may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Corporation of its obligation to maintain an
office or agency for such purposes. The Corporation will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Corporation shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Corporation shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Corporation will promptly notify the Trustee of its action or failure so to act.
The Corporation will cause each Paying Agent, other than the Trustee or
the Corporation, for any series of Securities to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will (1)
comply with the provisions of the Trust Indenture Act applicable to it as a
Paying Agent and (2) during the continuance of any default by the Corporation
(or any other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series. Each of the
Corporation and the Trustee, having agreed to the foregoing on its behalf as a
Paying Agent by its execution and delivery of this instrument, has hereby
satisfied the provisions of this paragraph with respect to itself as a Paying
Agent.
The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Corporation Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Corporation, in trust for the payment of the principal of or any premium or
interest on any
52
Security of any series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Corporation on Corporation Request, or (if then held by the Corporation) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Corporation for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Corporation as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Corporation cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in New York, New York, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Corporation free of the trust formerly impressed upon it.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
The Corporation will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Corporation ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Corporation is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and, if the
Corporation shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
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SECTION 1005. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Corporation may, with respect to the Securities
of any series, omit in any particular instance to comply with any term,
provision or condition set forth in any covenant provided pursuant to Section
301(18), 901(2) or 901(7) for the benefit of the Holders of such series if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Corporation and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series that are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Corporation to redeem any Securities shall be
evidenced by a
54
Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the
Corporation of less than all the Securities of any series (including any such
redemption affecting only a single Security), the Corporation shall, at least 60
days prior to the Redemption Date fixed by the Corporation (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Corporation shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination or any integral multiple thereof) for such Security. If less than
all the Securities of such series and of a specified tenor are to be redeemed
(unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Corporation in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting
of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to
be redeemed and, if less than all the Outstanding Securities of any
series consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case, and
(7) if applicable, the conversion price or exchange rate, the date on
which the right to convert or exchange the Securities to be redeemed
shall terminate and the place or places where such Securities may be
surrendered for conversion or exchange, as the case may be.
Notice of redemption of Securities to be redeemed at the election of the
Corporation shall be given by the Corporation or, at the Corporation's request,
by the Trustee in the name and at the expense of the Corporation and shall be
irrevocable.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Corporation shall deposit with the
Trustee or with a Paying Agent (or, if the Corporation is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Corporation shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Corporation at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 301, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof
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for redemption, the principal and any premium shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security that is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Corporation or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Corporation and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Corporation shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities is herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided for by the terms of
such Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Corporation
(1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and
(2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Corporation pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities,
in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series required to be made pursuant to the
terms of such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund
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payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Corporation will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 15 nor more than 45 days prior to each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. CORPORATION'S OPTION TO EFFECT DEFEASANCE.
The Corporation may elect, at its option at any time, to have Section 1302
or Section 1303 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible pursuant to
such Section 1302 or 1303, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions set
forth in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Corporation's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case may
be, the Corporation shall be deemed to have been discharged from its obligations
with respect to such Securities as provided in this Section on and after the
date the conditions set forth in Section 1304 are satisfied (a "Defeasance").
Defeasance means that the Corporation shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Corporation, shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or discharged
hereunder:
(1) The rights of Holders of such Securities to receive, solely from the
trust fund described in Section 1304 and as more fully set forth in
such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due,
(2) The Corporation's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003,
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(3) The rights, powers, trusts, duties and immunities of the Trustee
hereunder and
(4) This Article.
Subject to compliance with this Article, the Corporation may exercise its
option (if any) to have this Section applied to any Securities notwithstanding
the prior exercise of its option (if any) to have Section 1303 applied to such
Securities.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Corporation's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case may
be,
(1) the Corporation shall be released from its obligations under Section
801, Section 803, and any such covenants provided pursuant to
Section 301(18), 901(2) or 901(6) for the benefit of the Holders of
such Securities, and
(2) the occurrence of any event specified in Sections 501(3), 501(4)
(with respect to any of Section 801, Section 803, and any such
covenants provided pursuant to Section 301(18), 901(2) or 901(6))
and 501(8) shall be deemed not to be or result in an Event of
Default,
(3) the provisions of Article Fourteen shall cease to be effective.
in each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Corporation may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 501(4) or Article Fourteen), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
(1) The Corporation shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with
the provisions of this Article applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefits of
the Holders of such Securities,
(A) Money in an amount (in such currency, currencies or currency
unit or units in which the Securities of such series are
payable), or
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(B) In the case of Securities denominated in Dollars, U.S.
Government Obligations, or, in the case of Securities
denominated in a Foreign Currency, Foreign Government
Obligations, that through the scheduled payment of principal
and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of
any payment, money in an amount, or
(C) In the case of Securities denominated in Dollars, Defeased
Municipal Obligations, that through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the
due date of any payment, money in an amount, or
(D) A combination thereof,
in each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or any such other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on such Securities on the
respective Stated Maturities, in accordance with the terms of this Indenture
and such Securities.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the
Corporation shall have delivered to the Trustee an Opinion of
Counsel stating that
(A) the Corporation has received from, or there has been published
by, the Internal Revenue Service a ruling or
(B) since the date of this instrument, there has been a change in
the applicable Federal income tax law,
in either case (A) or (B) to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the
Corporation shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result
of the deposit and Covenant Defeasance to be effected with respect
to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(4) No event which is, or after notice or lapse of time or both would
become,
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an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections
501(5) and (6), at any time on or prior to the 90th day after the
date of such deposit (it being understood that this condition shall
not be deemed satisfied until after such 90th day).
(5) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(6) Such Defeasance or Covenant Defeasance shall not result in a breach
or constitute a default under, any other agreement or instrument to
which the Corporation is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within
the meaning of the Investment Corporation Act of 1940 (and any
statute successor thereto) unless such trust shall be registered
under such Act or exempt from registration thereunder.
(8) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Debt shall have
occurred and be continuing, (B) no event of default with respect to
any Senior Debt shall have resulted in such Senior Debt becoming,
and continuing to be, due and payable prior to the date on which it
would otherwise have become due and payable (unless payment of such
Senior Debt has been made or duly provided for), and (C) no other
event of default with respect to any Senior Debt shall have occurred
and be continuing permitting (after notice or lapse of time or both)
the holders of such Senior Debt (or a trustee on behalf of such
holders) to declare such Senior Debt due and payable prior to the
date on which it would otherwise have become due and payable.
(9) The Corporation shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
SECTION 1305. DEPOSITED MONEY, U.S. GOVERNMENT OBLIGATIONS AND DEFEASED
MUNICIPAL OBLIGATIONS TO BE HELD IN TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money, U.S. Government Obligations (including the proceeds thereof), Defeased
Municipal Obligations (including the proceeds thereof) and Foreign Government
Obligations (including the proceeds thereof) deposited with the Trustee or other
qualifying trustee (solely for purposes of this Section and Section 1306, the
Trustee and any such other trustee are referred to collectively as the
"Trustee") pursuant to Section 1304 in respect of any Securities shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Corporation acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal and any premium and interest,
but money so held in trust need not be segregated from other funds except to the
extent required by law.
The Corporation shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
and Foreign Government Obligations deposited pursuant to Section 1304 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
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Corporation from time to time upon Corporation
Request any money, U.S.
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Government Obligations, Defeased Municipal Obligations or Foreign Government
Obligations held by it as provided in Section 1304 with respect to any
Securities that, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to such Securities.
SECTION 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Corporation has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, if the Corporation makes any
payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Corporation shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. SECURITIES SUBORDINATE TO SENIOR DEBT.
The Corporation covenants and agrees, and each Holder of Securities of
any series by the Holder's acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article,
subject to the provisions of Article Four and Article Thirteen and except as may
otherwise be specified as contemplated by Section 301 and set forth in the
Securities of a series, the indebtedness represented by the Securities of such
series and the payment of the principal of and any premium and interest on each
and all of the Securities of such series are hereby expressly made subordinate
and junior in right of payment to the prior payment in full of all amounts then
due and payable in respect of all Senior Debt of the Corporation, to the extent
and in the manner herein set forth (unless a different manner is set forth in
the Securities of such series). No provision of this Article shall prevent the
occurrence of any default or Event of Default hereunder.
Senior Debt shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Debt then outstanding.
SECTION 1402. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of:
(i) any insolvency, bankruptcy, receivership, liquidation,
62
reorganization, readjustment, composition or other
similar proceeding relating to the Corporation, its
creditors or its property,
(ii) any proceeding for the liquidation, dissolution or other
winding up of the Corporation, whether voluntary or
involuntary, or bankruptcy proceedings,
(iii) any assignment by the Corporation for the benefit of its
creditors,
(iv) any other marshalling of the assets of the Corporation,
all Senior Debt shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made by the Corporation
on account of the Securities of any series. Any payment or distribution, whether
in cash, securities or other property (other than securities of the Corporation
or any other corporation provided for by a plan or reorganization or a
readjustment, the payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to the indebtedness
evidenced by the Securities of any series, to the payment of all Senior Debt at
the time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), which would otherwise (but for
these subordination provisions) be payable or deliverable in respect to the
Securities of any series shall be paid or delivered directly to the holders of
Senior Debt in accordance with the priorities then existing among such holders
until all Senior Debt shall have been paid in full. No present or future holder
of any Senior Debt shall be prejudiced in the right to enforce subordination of
the indebtedness constituting the Securities of any series by any act of failure
to act on the part of the Corporation.
SECTION 1403. NO PAYMENT WHEN SENIOR DEBT IN DEFAULT.
In the event that:
(i) the Corporation shall default in the payment of any
principal, or premium, if any, or interest on any Senior
Debt when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or
declaration or otherwise; or
(ii) an event of default occurs with respect to any Senior
Debt permitting the holders thereof to accelerate the
maturity thereof and written notice describing such
event of default and requesting commencement of payment
blockage on transactions as thereinafter described is
given to the Corporation by the holders of Senior Debt,
then unless and until such default in payment and event of default shall have
been cured or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property, securities, by set-off of otherwise) shall be made
or agreed to be made on account of the Securities of any series or any interest
thereon in respect of any repayment, redemption, retirement, purchase or other
acquisition of the Securities of any series.
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SECTION 1404. PAYMENT PERMITTED IN CERTAIN SITUATIONS.
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Securities of any series shall prevent
(a) the Corporation, at any time except during the pendency
of any dissolution, winding-up, liquidation or
reorganization of the Corporation, whether voluntary or
involuntary or any bankruptcy, insolvency, receivership
or other proceedings of the Corporation referred to in
Section 1402 or under the conditions described in
Section 1403, from making payments at any time of
principal of, or premium, if any, or interest on the
Securities of such series, or
(b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of
the principal of, or premium, if any, or interest on
the Securities of such series or the retention of such
payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge
that such payment would have been prohibited by the
provisions of this Article.
SECTION 1405. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Upon the payment in full of all Senior Debt, the rights of the holders
of Securities of any series shall be subrogated to all the rights of any holders
of Senior Debt to receive any further payments or distributions applicable to
the Senior Debt until the Securities of any series shall have been paid in full,
and such payments or distributions received by the Holders of Securities of any
series by reason of such subrogation, of cash, securities or other property
which otherwise would be paid or distributed to the holders of Senior Debt,
shall, as between the Corporation and its creditors other than the holders of
Senior Debt, on the one hand, and the Holders of Securities of any series, on
the other, be deemed to be a payment by the Corporation on account of Senior
Debt, and not on account of the Securities of any series.
SECTION 1406. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of Securities of any
series on the one hand and the holders of Senior Debt on the other hand. Nothing
contained in this article or elsewhere in the Indenture or in the Securities of
such series is intended to or shall
(a) impair, as among the Corporation, its creditors other
than holders of Senior Debt and the Holders of
Securities of such series, the obligation of the
Corporation, which is absolute and unconditional (and
which, subject to the rights under this Article of the
holders of Senior Debt, is intended to rank equally
with all other general obligations of the Corporation),
to pay to the Holders of Securities of such series the
principal of (and premium,
64
if any) and interest on, the Securities of such series
as and when the same shall become due and payable in
accordance with their terms; or
(b) affect the relative rights against the Corporation of
the Holders of Securities of such series and creditors
of the Corporation, as the case may be, other than the
holders of Senior Debt; or
(c) prevent the Trustee or the Holder of any Securities of
such series from exercising all remedies otherwise
permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this
Article of the holders of Senior Debt to receive cash,
property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 1407. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of Securities of any series by such Holder's acceptance
thereof authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any
and all such purposes.
SECTION 1408. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt 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 Corporation or by any
act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Corporation with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities of any
series, without incurring responsibility to the Holders of the Securities of
such series and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of Securities of such
series to the holders of Senior Debt, do any one or more of the following:
(a) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, Senior Debt,
or otherwise amend or supplement in any manner Senior
Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding;
(b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing
Senior Debt;
(c) release any Person liable in any manner for the
collection of Senior Debt; and
65
(d) exercise or refrain from exercising any rights against
the Corporation and any other Person.
SECTION 1409. NOTICE TO TRUSTEE.
The Corporation shall give prompt written notice to the Trustee of any
fact known to the Corporation which would prohibit the making of any payment to
or by the Trustee in respect of the Securities of any series pursuant to the
provisions of this Article. Notwithstanding the provisions of this Article or
any other provision of the Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of any Securities of any series
pursuant to the provisions of this Article, unless and until the Trustee shall
have received written notice thereof from the Corporation or a holder or
holders of Senior Debt or from any trustee therefor; and, prior to the receipt
of any such written notice, the Trustee, subject to the provisions of Section
603, shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section 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 (or premium, if
any) or interest on any Securities of any series), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such moneys and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
Subject to the provisions of Section 603, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Debt (or a
trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment of distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt 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, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 1410. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Corporation referred
to in this Article, the Trustee, subject to the provisions of Section 603, and
the Holders of Securities of any series shall be entitled to conclusively 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
66
similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities of such series, for
the purpose of ascertaining the Persons entitled to participate in such payment
or distribution, the holders of the Senior Debt and other indebtedness of the
Corporation, 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.
SECTION 1411. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of such Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt with respect to its obligations and
duties created hereunder and shall not be liable to any such holders or
creditors if it shall in good faith pay over or distribute to Holders of
Securities of any series or to the Corporation or to any other Person cash,
property or securities to which any holders of Senior Debt shall be entitled by
virtue of this Article or otherwise.
SECTION 1412. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF
TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in the Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1413. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Corporation and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that this Section shall not apply to the
Corporation or any Affiliate of the Corporation if it or such Affiliate acts as
Paying Agent.
SECTION 1414. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT.
For the purposes of this Article only, (a) the issuance and delivery of
securities which are subordinate in right of payment to all then outstanding
Senior Debt to substantially the same extent as the Securities are so
subordinate ("Junior Securities") (or cash paid in
67
lieu of fractional shares) upon conversion or exchange of Securities of any
series as contemplated by Section 301, shall not be deemed to constitute a
payment or distribution on account of the principal of or premium or interest on
Securities of such series or on account of the purchase or other acquisition of
Securities of such series and (b) the payment, issuance or delivery of cash,
property or securities (other than Junior Securities and cash paid in lieu of
fractional shares) upon conversion or exchange of Securities of any series shall
be deemed to constitute payment on account of the principal of such Securities
of such series. Nothing contained in this Article or elsewhere in the Indenture
or in the Securities of any series is intended to or shall impair, as among the
Corporation, its creditors other than holders of Senior Debt and the Holders of
Securities of such series the right, which is absolute and unconditional, of the
Holder of any Securities of such series to convert or exchange such Securities
of such series in accordance with the terms specified as contemplated by Section
301.
SECTION 1415. DEFEASANCE OF THIS ARTICLE FOURTEEN.
The subordination of the Securities provided by this Article Fourteen
is expressly made subject to the provisions for defeasance or covenant
defeasance in Article Thirteen hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities than outstanding shall thereupon cease to be
subordinated pursuant to this Article Fourteen.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
UNITED STATES STEEL CORPORATION
By:
-------------------------------------
Attest:
----------------------------------
Assistant Secretary
The Bank of New York
By:
-------------------------------------
Attest:
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----------------------------------
Assistant Secretary
Commonwealth of
Pennsylvania
County of Allegheny ss.:
}
On the day of , , before me personally came , to
me known, who, being by me duly sworn, did depose and say that he/she is
of United States Steel Corporation, one of the corporations described in
and which executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he/she signed his/her name thereto by like authority.
State of New York
County of New York ss.:
}
On the day of , , before me personally came , to
me known, who, being by me duly sworn, did depose and say that he/she is
of The Bank of New York, one of the corporations described in and which
executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he/she signed his/her name thereto by like authority.
69
