Exhibit 4.1
XxXXXXXXX & COMPANY, INCORPORATED,
as Issuer,
and
SUNTRUST BANK,
as Trustee
-------------------------------
INDENTURE
Dated as of September [_], 2000
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of September [_], 2000
Trust Indenture Act Section Indenture Section
--------------------------- ------------------
Section 310 (a) (1) ..................................................... 6.9
(a) (2) ..................................................... 6.9
(a) (3) ..................................................... Not Applicable
(a) (4) ..................................................... Not Applicable
(a) (5) ..................................................... 6.9
(b) ..................................................... 6.8, 6.10
Section 311 (a) ..................................................... 6.13(a)
(b) ..................................................... 6.13(b)
(b) (2) ..................................................... 7.3(a)(2), 7.3(b)
Section 3.12 (a) ..................................................... 7.1, 7.2(a)
(b) ..................................................... 7.2(b)
(c) ..................................................... 7.2(c)
Section 3.13 (a) ..................................................... 7.3(a)
(b) ..................................................... 7.3(b)
(c) ..................................................... 7.3(a), 7.3(b)
(d) ..................................................... 7.3(c)
Section 3.14 (a) ..................................................... 7.4
(b) ..................................................... Not Applicable
(c) (1) ..................................................... 1.2
(c) (2) ..................................................... 1.2
(c) (3) ..................................................... Not Applicable
(d) ..................................................... Not Applicable
(e) ..................................................... 1.2
Section 3.15 (a) ..................................................... 6.1(a)
(b) ..................................................... 6.2, 7.3(a) (6)
(c) ..................................................... 6.1(b)
(d) ..................................................... 6.1(c)
(d) (1) ..................................................... 6.1(a) (1)
(d) (2) ..................................................... 6.1(c) (2)
(d) (3) ..................................................... 6.1(c) (3)
(e) ..................................................... 5.14
Section 3.16 (a) (1) ..................................................... 1.1
(a) (1) (A).................................................. 5.2, 5.12
(a) (1) (B).................................................. 5.13
(a) (2) ..................................................... Not Applicable
(b) ..................................................... 5.8
Section 3.17 (a) (1) ..................................................... 5.3
(a) (2) ..................................................... 5.4
(b) ..................................................... 10.3
Section 3.18 (a) ..................................................... 1.7
------------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS (1)
---------------------
RECITALS OF THE COMPANY...........................................................................................1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................................1
Section 1.1 Definitions........................................................................1
Section 1.2 Compliance Certificates and Opinions...............................................9
Section 1.3 Form of Documents Delivered to Trustee............................................10
Section 1.4 Acts of Holders...................................................................11
Section 1.5 Notices, etc. to Trustee and Company..............................................12
Section 1.6 Notice to Holders; Waiver.........................................................12
Section 1.7 Conflict with Trust Indenture Act.................................................13
Section 1.8 Effect of Headings and Table of Contents..........................................13
Section 1.9 Successors and Assigns............................................................13
Section 1.10 Separability Clause...............................................................13
Section 1.11 Benefits of Indenture.............................................................13
Section 1.12 Governing Law.....................................................................13
Section 1.13 Legal Holidays....................................................................13
Section 1.14 Certain Matters Relating to Currencies............................................14
ARTICLE II SECURITY FORMS........................................................................................14
Section 2.1 Forms Generally...................................................................14
Section 2.2 Form of Trustee's Certificate of Authentication...................................15
ARTICLE III THE SECURITIES.......................................................................................15
Section 3.1 Amount Unlimited; Issuable in Series..............................................15
Section 3.2 Denominations.....................................................................18
Section 3.3 Execution, Authentication, Delivery and Dating....................................18
Section 3.4 Temporary Securities..............................................................19
Section 3.5 Registration, Registration of Transfer and Exchange...............................20
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities..................................21
Section 3.7 Payment of Interest; Interest Rights Preserved....................................22
Section 3.8 Persons Deemed Owners.............................................................23
---------------------------------
(1) Note: This table of contents shall not, for any purpose, be deemed to
be a part of this Indenture.
Section 3.9 Cancellation......................................................................24
Section 3.10 Computation of Interest...........................................................24
Section 3.11 Global Securities.................................................................24
ARTICLE IV SATISFACTION AND DISCHARGE............................................................................27
Section 4.1 Satisfaction and Discharge of Securities of any Series............................27
Section 4.2 Application of Trust Money........................................................29
Section 4.3 Satisfaction and Discharge of Indenture...........................................30
Section 4.4 Reinstatement.....................................................................30
ARTICLE V REMEDIES...............................................................................................31
Section 5.1 Events of Default.................................................................31
Section 5.2 Acceleration of Maturity; Rescission and Annulment................................32
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee...................34
Section 5.4 Trustee May File Proofs of Claim..................................................34
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.......................35
Section 5.6 Application of Money Collected....................................................36
Section 5.7 Limitation on Suits...............................................................36
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest........37
Section 5.9 Restoration of Rights and Remedies................................................37
Section 5.10 Rights and Remedies Cumulative....................................................37
Section 5.11 Delay or Omission Not Waiver......................................................38
Section 5.12 Control by Holders................................................................38
Section 5.13 Waiver of Past Defaults...........................................................38
Section 5.14 Undertaking for Costs.............................................................38
Section 5.15 Waiver of Stay or Extension Laws..................................................39
ARTICLE VI THE TRUSTEE...........................................................................................39
Section 6.1 Certain Duties and Responsibilities...............................................39
Section 6.2 Notice of Defaults................................................................41
Section 6.3 Certain Rights of Trustee.........................................................41
Section 6.4 Not Responsible for Recitals or Issuance of Securities............................42
Section 6.5 May Hold Securities...............................................................43
Section 6.6 Money Held in Trust...............................................................43
Section 6.7 Compensation and Reimbursement....................................................43
Section 6.8 Qualification of Trustee; Conflicting Interests...................................43
Section 6.9 Corporate Trustee Required; Eligibility...........................................44
Section 6.10 Resignation and Removal; Appointment of Successor.................................44
Section 6.11 Acceptance of Appointment by Successor............................................46
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.......................47
ii
Section 6.13 Preferential Collection of Claims Against Company.................................48
Section 6.14 Appointment of Authenticating Agent...............................................52
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY....................................................54
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.........................54
Section 7.2 Preservation of Information; Communications to Holders............................55
Section 7.3 Reports by Trustee................................................................56
Section 7.4 Reports by Company................................................................58
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................................59
Section 8.1 Company May Consolidate, etc., Only on Certain Terms..............................59
Section 8.2 Successor Corporation Substituted.................................................60
Section 8.3 Officers' Certificate and Opinion of Counsel......................................60
ARTICLE IX SUPPLEMENTAL INDENTURES...............................................................................60
Section 9.1 Supplemental Indentures Without Consent of Holders................................60
Section 9.2 Supplemental Indentures with Consent of Holders...................................62
Section 9.3 Execution of Supplemental Indentures..............................................63
Section 9.4 Effect of Supplemental Indentures.................................................63
Section 9.5 Conformity with Trust Indenture Act...............................................64
Section 9.6 Reference in Securities to Supplemental Indentures................................64
ARTICLE X COVENANTS..............................................................................................64
Section 10.1 Payment of Principal, Premium and Interest........................................64
Section 10.2 Maintenance of Office or Agency...................................................64
Section 10.3 Money for Security Payments to be Held in Trust...................................65
Section 10.4 Corporate Existence...............................................................67
Section 10.5 Maintenance of Properties.........................................................67
Section 10.6 Payment of Taxes and Other Claims.................................................67
Section 10.7 Limitations on Liens..............................................................68
Section 10.8 Limitations on Sale and Leaseback.................................................69
Section 10.9 Statement by Officers as to Default...............................................70
Section 10.10 Waiver of Certain Covenants.......................................................70
Section 10.11 Defeasance of Certain Obligations.................................................70
ARTICLE XI REDEMPTION OF SECURITIES..............................................................................72
Section 11.1 Applicability of Article..........................................................72
Section 11.2 Election to Redeem; Notice to Trustee.............................................73
Section 11.3 Selection by Trustee of Securities to be Redeemed.................................73
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Section 11.4 Notice of Redemption..............................................................73
Section 11.5 Deposit of Redemption Price.......................................................74
Section 11.6 Securities Payable on Redemption Date.............................................74
Section 11.7 Securities Redeemed in Part.......................................................75
ARTICLE XII SINKING FUNDS........................................................................................75
Section 12.1 Applicability of Article..........................................................75
Section 12.2 Satisfaction of Sinking Fund Payments with Securities.............................76
Section 12.3 Redemption of Securities for Sinking Fund.........................................76
iv
INDENTURE, dated as of September [_], 2000, between XxXXXXXXX & COMPANY,
INCORPORATED, a Maryland corporation (the "Company"), and SUNTRUST BANK, a
national banking association organized under the laws of the State of Georgia,
as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) 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;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of this Indenture; and
(d) 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 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" with respect to any sale leaseback transaction
restricted by Section 10.8 means the lesser of (i) the total net amount of rent
required to be paid during the remaining base term of the related lease or until
the earliest date on which the lessee may terminate such lease upon payment of a
penalty or a lump-sum termination payment (in which case the total net rent
shall include such penalty or termination payment), discounted at the weighted
average interest rate borne by the Outstanding Securities, compounded
semi-annually, or (ii) the sale price of the property so leased multiplied by a
fraction, the numerator of which is the remaining base term of the related lease
and the denominator of which is the base term of such lease.
"Authenticating Agent" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Securities.
"Beneficial Owner" means, with respect to Global Securities, the Person who
is the beneficial owner of such Securities as reflected on the books of the
Depositary for such Securities or on the books of a Person maintaining an
account with such Depositary (directly or as an indirect participant, in
accordance with the rules of such Depositary).
"Board of Directors" means either the board of directors of the Company, as
the case may be, 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 Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
2
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by
law, regulation or executive order to close.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of recognized
standing selected by the Company. The term "independent" when used with respect
to any specified firm of public accountants means such a firm which (1) is in
fact independent, (2) does not have any direct financial interest or any
material indirect financial interest in the Company or in any other obligor upon
the Securities of any series or in any affiliate of the Company or of such other
obligor, and (3) is not connected with the Company or such other obligor or any
affiliate of the Company or of such other obligor, as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions, but such firm may be the regular auditors employed by the Company.
Whenever it is herein provided that any Certificate of a Firm of Independent
Public Accountants shall be furnished to the Trustee for Securities of any
series, such Certificate shall state that the signer has read this definition
and that the signer is independent within the meaning hereof.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
President or a Vice President, and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Net Tangible Assets" means the total assets of the Company
and its consolidated subsidiaries, including the investment in (at equity) and
the net amount of advances to and accounts receivable from corporations which
are not consolidated subsidiaries less the following:
(i) current liabilities of the Company and its consolidated
subsidiaries, including an amount equal to indebtedness
required
3
to be redeemed by reason of any sinking fund payment due in
12 months or less from the date as of which current
liabilities are to be determined;
(ii) all other liabilities of the Company and its consolidated
subsidiaries other than Funded Debt, deferred income taxes and
liabilities for employee post-retirement health plans other
than pensions recognized in accordance with Statement of
Financial Accounting Standards No. 106;
(iii) all depreciation and valuation reserves and all other reserves
(except for reserves for contingencies which have not been
allocated to any particular purpose) of the Company and its
consolidated subsidiaries;
(iv) the book amount of all segregated intangible assets of the
Company and its consolidated subsidiaries, including, but
without limitation, such items as goodwill, trademarks, trade
names, patents and unamortized debt discount and expense less
unamortized debt premium; and
(v) appropriate adjustments on account of minority interests of
other persons holding stock in subsidiaries.
Consolidated Net Tangible Assets shall be determined on a consolidated
basis in accordance with generally accepted accounting principles and as
provided herein.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at 000 X.
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, 00000, Attn: Corporate Trust Department;
provided that with respect to presentment, transfer, exchange, registration or
payment of Securities, "Corporate Trust Office" means at the date hereof
SunTrust Bank c/x Xxxxxx Trust Bank of New York, Wall Street Plaza, 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Corporation" includes corporations, associations, companies and business
trusts.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means a clearing agency registered as such under the Exchange
Act, as amended, or any successor thereto, which shall in either case be
designated by the Company pursuant to Section 3.1 until a successor
4
Depositary shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Depositary" shall mean or include each Person
who is then a Depositary hereunder, and if at any time there is more than one
such Person, "Depositary" as used with respect to the Securities of any
series shall mean the Depositary with respect to the Securities of that
series.
"Discounted Security" means any Security which provides for an amount
(excluding any amounts attributable to accrued but unpaid interest thereon) less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exempted Indebtedness" means as of any particular time the sum of (i) all
then outstanding indebtedness for borrowed money of the Company and Restricted
Subsidiaries incurred after the date hereof and secured by any mortgage,
security interest, pledge or lien other than those permitted by paragraph (a) of
Section 10.7, and (ii) all Attributable Debt with respect to Sale and Leaseback
Transactions entered into by the Company and Restricted Subsidiaries after the
date hereof other than those permitted by paragraph (a) of Section 10.8.
"Funded Debt" means any indebtedness of the Company or a Restricted
Subsidiary for borrowed money having a maturity of more than 12 months from the
date such indebtedness was incurred or having a maturity of less than 12 months
but by its terms being renewable or extendable beyond 12 months from the date
such indebtedness was incurred at the option of the obligor.
"Global Security" means a Security evidencing all or part of a series of
Securities which is executed by the Company and authenticated and delivered to
the Depositary or pursuant to the Depositary's instructions, all in accordance
with this Indenture and pursuant to a Company Order, which shall be registered
in the name of the Depositary or its nominee and which shall represent the
amount of uncertificated securities as specified therein.
"Government Obligations" means securities that are (i) direct obligations
of the government which issued the currency in which the Securities of a
particular series are payable or (ii) obligations of a Person controlled or
5
supervised by and acting as an agency or instrumentality of the government that
issued the currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed by such government, which, in
either case, are full faith and credit obligations of such government payable in
such currency and are not callable or redeemable at the option of the issuer
thereof.
"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 entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 3.1.
"Interest", when used with respect to a Discounted Security which 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.
"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.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, a Vice President or the Treasurer, and by the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company (including in-house counsel) or the Trustee, and who shall be
reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the
6
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities; PROVIDED 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; and
Securities, except to the extent provided in Section 4.3, with respect
to which the Company has effected defeasance as provided in Article IV;
and
(c) Securities that have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands the Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) Securities
owned by the Company, any obligor upon the Securities or any Affiliate of the
Company shall be disregarded and deemed not to be Outstanding, except that (A)
in determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded and
(B) 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 Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor; and (ii) the principal amount of any
Discounted Security that shall be deemed to be Outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon a declaration of acceleration pursuant to
Section 5.2.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
7
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for a mutilated
Security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Principal Property" means any manufacturing or processing plant or
warehouse, together with the land upon which it is erected and any fixtures and
equipment comprising a part thereof, owned by the Company or any Restricted
Subsidiary and located in the United States, the book value (net of
depreciation) of which on the date as of which the determination is being made
is an amount which exceeds 1% of Consolidated Net Tangible Assets, other than
any such manufacturing or processing plant or warehouse or any portion thereof
or any such fixture or equipment (together with the land upon which it is
erected and any fixtures and equipment comprising a part thereof) (i) which is
financed by Industrial Development Bonds or (ii) which, in the opinion of the
Board of Directors, is not of material importance to the total business
conducted by the Company and its Subsidiaries, taken as a whole.
"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 3.1.
"Responsible Officer", when used with respect to the Trustee, means any
officer assigned to the Corporate Trust Department of the Trustee, including any
vice president, assistant vice president, assistant secretary or any other
officer of the Trustee to whom any corporate trust matter is referred because of
his or her knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary that owns, operates or leases
one or more Principal Properties.
8
"Securities" has the meaning specified in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"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 each corporation of which the Company or the Company and
one or more Subsidiaries, or any one or more Subsidiaries, directly or
indirectly own securities entitling the holders thereof to elect a majority of
the directors, either at all times or so long as there is no default or
contingency that permits the holders of any other class or classes of securities
to vote for the election of one or more directors.
"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
such successor Trustee, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Yield to Maturity", when used with respect to any Discounted Security,
means the yield to maturity, if any, set forth on the face thereof.
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company or any obligor on the
Securities shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture (including any
covenants, compliance with which constitutes a condition precedent) relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that, in the case of any such
9
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need
be furnished.
Every certificate (other than certificates provided pursuant to Section
10.9) or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) 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
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3 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, any one such Person,
or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company 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 Company stating that the
information with respect to such factual matters is in the possession of the
10
Company, 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 1.4 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by 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 hereby expressly required, to the Company. 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 6.1) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security or the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent
11
or the Company in reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 1.5 NOTICES, ETC. TO TRUSTEE AND COMPANY.
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,
(a) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed, in writing, to or
with the Trustee at 000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, 00000, Attn:
Corporate Trust Department; or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose (except as provided in Section 5.1(c)) hereunder if in writing and
mailed, first-class postage prepaid, to the Company addressed to it at 00
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, 00000, Attention: Secretary; or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, 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. Any notice when mailed to a Holder in the aforesaid
manner shall be conclusively deemed to have been received by such Holder whether
or not actually received by such Holder. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause, it shall be impracticable to mail notice of any event as
required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
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SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8 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 1.9 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10 SEPARABILITY 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 1.11 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, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12 GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 1.13 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made 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, and no interest
shall accrue with respect to such payment for the period from and after such
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Interest Payment Date, Redemption Date or Stated Maturity, as the case may be,
to such next succeeding Business Day.
SECTION 1.14 CERTAIN MATTERS RELATING TO CURRENCIES.
Whenever any action or Act is to be taken hereunder by the Holders of
Securities denominated in different currencies or currency units, then for
purposes of determining the principal amount of Securities held by such Holders,
the aggregate principal amount of the Securities denominated in a foreign
currency or currency unit shall be deemed to be that amount of Dollars that
could be obtained for such principal amount on the basis of a spot rate of
exchange specified to the Trustee for such series in an Officers' Certificate
for such Foreign Currency or currency unit into Dollars as of the date the
taking of such action or Act by the Holders of the requisite percentage in
principal amount of the Securities is evidenced to such Trustee.
The Trustee shall segregate moneys, funds and accounts held by the Trustee
in one currency or currency unit from any moneys, funds or accounts held in any
other currencies or currency units, notwithstanding any provision herein that
would otherwise permit the Trustee to commingle such amounts.
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.
The Securities of each series shall be in substantially the form
established by or pursuant to a Board Resolution 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 as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. 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 Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the
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Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 6.14, the Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Securities referred to in the within-mentioned Indenture.
---------------------------------
SUNTRUST BANK
as Trustee
By _______________________________
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount
of the Securities of the series that 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 Sections
3.4, 3.5, 3.6, 9.6 or 11.7);
(3) the date or dates on which the principal of the
Securities of the series is payable;
15
(4) the rate or rates at which the Securities of
the series shall bear interest, if any, the date or dates from which
such interest shall accrue (which, in either case or both, if so
provided in such Board Resolution, may be determined by the Company
from time to time and set forth in the Securities of the series
issued from time to time), the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the
interest payable on any Interest Payment Date;
(5) the place or places where, subject to the
provisions of Section 10.2, the principal of (and premium, if any)
and interest on Securities of the series shall be payable, any
Securities of that series may be surrendered for exchange, and
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served;
(6) the period or periods within which, the price
or prices at which, the currency or currency unit in which, and the
terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at
which, the currency or currency unit in which, and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of
the series shall be issuable;
(9) if other than the principal amount thereof,
the portion of the principal amount of Securities of the series that
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.2;
(10) any Events of Default and covenants of the
Company with respect to the Securities of that series, whether or
not such Events of Default or covenants are consistent with the
Events of Defaults or covenants set forth herein;
(11) if other than Dollars, the currency or
currency unit in which payment of the principal of (and premium, if
any) or interest,
16
if any, on the Securities of that series shall be made or in which the
Securities of that series shall be denominated and the particular
provisions applicable thereto;
(12) if the principal of (and premium, if any) and
interest, if any, on the Securities of that series are to be
payable, at the election of the Company or a Holder thereof, in a
currency or currency unit other than that in which such Securities
are denominated or stated to be payable, the period or periods
within which, and the terms and conditions upon which, such election
may be made, and the time and manner of determining the exchange
rate between the currency or currency unit in which such Securities
are denominated or stated to be payable and the currency or currency
unit in which such Securities are to be so payable;
(13) if the amount of payments of principal of
(and premium, if any) or interest, if any, on the Securities of that
series may be determined with reference to an index based on a
currency or currency unit other than that in which such Securities
are denominated or stated to be payable or any other index, the
manner in which such amounts shall be determined;
(14) if the Securities of that series do not bear
interest, the applicable dates for purposes of Section 7.1;
(15) if the provisions of Section 4.1 relating to
the satisfaction and discharge of this Indenture shall apply to the
Securities of that series; or if provisions for the satisfaction and
discharge of this Indenture other than as set forth in Section 4.1
shall apply to the Securities of that series;
(16) the application, if any, of Section 10.11 to the
Securities of that series;
(17) whether the Securities of that series shall
be issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary for such Global
Security or Securities; and whether such Global Security or
Securities shall be temporary or permanent; and
(18) any other terms of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
17
All Securities of any one series shall be substantially identical except
as to denomination, rate of interest, Stated Maturity and the date from which
interest, if any, shall accrue, and except as may otherwise be provided in or
pursuant to such Board Resolution relating thereto. The terms of such
Securities, as set forth above, may be determined by the Company from time to
time if so provided in or established pursuant to the authority granted in a
Board Resolution. All Securities of any one series need not be issued at the
same time, and unless otherwise provided, a series may be reopened for
issuance of additional Securities of such series.
If any of the terms of the series are 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
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 3.2 DENOMINATIONS.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated
by Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
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 on the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise. If the form or terms of the
Securities of the series have been established in or pursuant to
18
one or more Board Resolutions as permitted by Sections 2.1 and 3.1, 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 6.1) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by
or pursuant to Board Resolution as permitted by Section 2.1, that
such form has been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 3.1, that
such terms have been established in conformity with the provisions
of this Indenture; and
(c) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general
equity principles.
With respect to Securities of a series whose terms are to be established from
time to time the Trustee shall be entitled to receive the Opinion of Counsel
described in this Section in connection with the first authentication of
Securities of that series. 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.
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
duly executed by the Trustee by manual signature of an authorized officer,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
SECTION 3.4 TEMPORARY SECURITIES.
19
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities of such series 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 conclusively evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of 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 Company in a Place of Payment for such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series of authorized
denominations. Until so exchanged, the temporary Securities of such series
shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities of such series.
SECTION 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as the Security Registrar may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities.
The Trustee is hereby initially 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 any
series at the office or agency in a Place of Payment for such series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities
of the same series of the same tenor in any authorized denomination or
denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of the same tenor in any authorized denomination
20
or denominations and of a like 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 Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which 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 Company, 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 or redemption, shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.4, 9.6 or
11.7 not involving any transfer.
The Company shall not be required (a) to issue, register the transfer of
or exchange any Security if such Security may be among those selected for
redemption during a period beginning at the opening of business 15 days
before the day of the selection of the Securities to be redeemed under
Section 11.3 or Section 12.3 and ending at the close of business on the day
of the mailing of the relevant notice of redemption, 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 Securities being redeemed in part,
or (c) to issue, register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If (i) the Company and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Security, and (ii) there is delivered
to the
21
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company
and the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security
or in lieu of any such destroyed, lost or stolen Security, a new Security of
like tenor and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion,
may, instead of issuing a new Security, pay any such Security.
Upon the issuance of any new Securities under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security 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 Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of such 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 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name the Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, and at maturity, to the persons to whom principal is payable.
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
("Defaulted Interest") shall forthwith cease to be payable to the Holder on
the Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case,
as provided in clause (a) or (b) below:
22
(a) The Company 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 and on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Subsection provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company in writing of such Special Record Date and, in the name and at the
expense of the Company, the Trustee shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such
series at his address as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Person in whose names
the Securities (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (b).
(b) The Company 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
written notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.8 PERSONS DEEMED OWNERS.
23
Prior to and at the time of due presentment for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Security is registered as the
owner of such Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 3.7) interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
SECTION 3.9 CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee
shall be destroyed and, if requested, certification of their destruction
delivered to the Company, unless by a Company Order the Company directs that
canceled securities be returned to it.
SECTION 3.10 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.1 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.
SECTION 3.11 GLOBAL SECURITIES.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with Section 3.3 and the Company Order with respect to
such series, authenticate and deliver one or more Global Securities in
temporary or permanent form that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of the outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the depositary for such Global
Security or Securities or the nominee of such depositary, (iii) shall be
delivered by the Trustee to such depositary or pursuant to such depositary's
instruction, and (iv) shall bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for Securities
in definitive form, this Security may not be
24
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary". The Trustee shall deal with the
Depositary and its participants as representatives of the Beneficial Owners of
the Global Securities for purposes of exercising the rights of the Holders
hereunder and the rights of the Beneficial Owners of the Global Securities shall
be limited to those established by law and agreements between such Beneficial
Owners and the Depositary and its participants. Beneficial Owners shall not be
entitled to certificates for Global Securities as to which they are the
Beneficial Owners. Requests and directions from, and votes of, such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Beneficial Owners.
Notwithstanding any other provision of this Section or Section 3.5, unless
and until it is exchanged in whole or in part for Securities in definitive form,
a Global Security representing all or a portion of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary. The Beneficial Owner's ownership of Securities shall be recorded on
the records of a participant of the Depositary that maintains such Beneficial
Owner's account for such purpose and the participant's record ownership of such
Securities shall be recorded on the records of the Depositary.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for Securities of a
series shall no longer be registered or in good standing under the Exchange Act
or other applicable statute or regulation, and the Company shall not have
appointed a successor Depositary with respect to the Securities of such series,
or if at any time there shall have occurred and be continuing an Event of
Default under this Indenture with respect to the Securities of such series, the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
25
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive
form and in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such series in exchange for such
Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect to
Securities of a series, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series in definitive form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute and the Trustee shall authenticate and deliver, without charge,
(i) to each Person specified by the Depositary a new Security
or Securities of the same series, of any authorized denomination as
requested by such Person in aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global
Security; and
(ii) to the Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be canceled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section 3.11 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the persons in whose names such Securities are so registered.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF SECURITIES OF ANY SERIES.
(a) The Company shall be deemed to have satisfied and discharged the entire
indebtedness on all the Securities of any particular series (i) that have become
due and payable, or (ii) by their terms are to become due and payable at their
Stated Maturity within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the Securities of such
series, or (iii) with respect to which this Section 4.1 is specified to be
applicable pursuant to Section 3.1, and, so long as no Event of Default shall be
continuing, the Trustee for the Securities of such series, upon Company Request
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when:
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i) any
Securities and coupons of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.6,
(ii) coupons appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender is not required as
provided in Section 11.6 and (iii) Securities and coupons of such series
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in the last paragraph of
Section 10.3) have been delivered to such Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
described in (A) above (and, in the case of (i) or (ii) below, any coupons
appertaining thereto) not theretofore so delivered to the Trustee for the
Securities of such series for cancellation:
(i) the Company has deposited or caused to be deposited with such
Trustee as trust funds in trust an amount in the currency or currency
unit in which the Securities of such series are payable (except as
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otherwise specified pursuant to Section 3.1 for the Securities of such
series), sufficient to pay and discharge the entire indebtedness on
all such Outstanding Securities of such series and any related coupons
for unpaid principal (and premium, if any) and interest, if any, to
the Stated Maturity or any Redemption Date as contemplated by Section
4.2, as the case may be; or
(ii) the Company has deposited or caused to be deposited with
such Trustee as obligations in trust such amount of Government
Obligations as will, as evidenced by a Certificate of a Firm of
Independent Public Accountants delivered to such Trustee, together
with the predetermined and certain income to accrue thereon (without
consideration of any reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all such Outstanding
Securities of such series and any related coupons for unpaid principal
(and premium, if any) and interest, if any, to the Stated Maturity or
any Redemption Date as contemplated by Section 4.2, as the case may
be; or
(iii) the Company has deposited or caused to be deposited with
such Trustee in trust an amount equal to the amount referred to in
clause (i) or (ii) in any combination of currency or currency unit or
Government Obligations;
(2) the Company has paid or caused to be paid all other sums payable with
respect to the Securities of such series and any related coupons;
(3) the Company has delivered to such 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 the entire
indebtedness on all Securities of such series and any related coupons have been
complied with; and
(4) if the Securities of such series and any related coupons are not to
become due and payable at their Stated Maturity within one year of the date of
such deposit or are not to be called for redemption within one year of the date
of such deposit under arrangements satisfactory to such Trustee as of the date
of such deposit, then the Company shall have given, not later than the date of
such deposit, an Opinion of Counsel based on the fact that (x) the
28
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (y), since the date hereof, there has been a
change in the applicable United States federal income tax law, in either case
to the effect that, and such opinion shall confirm that, the Holders of the
Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred.
(b) Upon the satisfaction of the conditions set forth in this Section 4.1
with respect to all the Securities of all series, the terms and conditions of
such series, including the terms and conditions with respect thereto set forth
in this Indenture, shall no longer be binding upon, or applicable to, the
Company, and the Holders of the Securities of such series and any related
coupons shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 4.1(a)(1)(B); PROVIDED, HOWEVER, that in no
event shall the Company be discharged from (i) any payment obligations in
respect of Securities of such series and any related coupons which are deemed
not to be Outstanding under clause (c) of the definition thereof if such
obligations continue to be valid obligations of the Company under applicable
law, (ii) from any obligations under Sections 4.2(b), 6.7, 6.10 and 10.11 and
(iii) from any obligations under Sections 3.5 and 3.6 (except that Securities of
such series issued upon registration of transfer or exchange or in lieu of
mutilated, destroyed, lost or stolen Securities and any related coupons shall
not be obligations of the Company) and Sections 7.1 and 10.2; and PROVIDED,
FURTHER, that in the event a petition for relief under the Bankruptcy Act of
1978 or Title 11 of the United States Code or a successor statute is filed and
not discharged with respect to the Company within 91 days after the deposit, the
entire indebtedness on all Securities of such series and any related coupons
shall not be discharged, and in such event the Trustee shall return such
deposited funds or obligations as it is then holding to the Company upon Company
Request.
SECTION 4.2 APPLICATION OF TRUST MONEY.
(a) All money and obligations deposited with the Trustee for any series of
Securities pursuant to Section 4.1 shall be held irrevocably in trust and shall
be made under the terms of an escrow trust agreement in form satisfactory to
such Trustee. Such money and obligations shall be applied by such Trustee, in
accordance with the provisions of the Securities, any coupons, this Indenture
and such escrow trust agreement, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as such
Trustee may determine, to the Persons entitled thereto,
29
of the principal of (and premium, if any) and interest, if any, on the
Securities for the payment of which such money and obligations have been
deposited with such Trustee. If Securities of any series are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provision or in accordance with any mandatory sinking fund requirement, the
Company shall make such arrangements as are reasonably satisfactory to the
Trustee for any series of Securities for the giving of notice of redemption
by such Trustee in the name, and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee for any series of
Securities against any tax, fee or other charge imposed on or assessed against
Government Obligations deposited pursuant to Section 4.1 or the interest and
principal received in respect of such Government Obligations other than any such
tax, fee or other charge which by law is payable by or on behalf of Holders. The
obligation of the Company under this Section 4.2(b) shall be deemed to be an
obligation of the Company under Section 6.7(b).
(c) Anything in this Article IV to the contrary
notwithstanding, the Trustee for any series of Securities shall deliver or pay
to the Company from time to time upon Company Request any money or Government
Obligations held by it as provided in Section 4.1 which, as expressed in a
Certificate of a Firm of Independent Public Accountants delivered to such
Trustee, are in excess of the amount thereof which would then have been required
to be deposited for the purpose for which such money or Government Obligations
were deposited or received provided such delivery can be made without
liquidating any Government Obligations.
SECTION 4.3 SATISFACTION AND DISCHARGE OF INDENTURE.
Upon compliance by the Company with the provisions of Section 4.1 as to
the satisfaction and discharge of each series of Securities issued hereunder,
and if the Company has paid or caused to be paid all other sums payable under
this Indenture, this Indenture shall cease to be of any further effect (except
as otherwise provided herein). Upon Company Request and receipt of an Opinion of
Counsel and an Officers' Certificate complying with the provisions of Section
1.2, the Trustees for all series of Securities (at the expense of the Company)
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Sections 3.5, 3.6, 4.2(b), 6.7, 6.10, 7.1, 10.2
and 10.11 and the obligations of the Trustee for any series of Securities under
Section 4.2 shall survive.
SECTION 4.4 REINSTATEMENT.
30
If the Trustee for any series of Securities is unable to apply any of
the amounts (for purposes of this Section 4.4, "Amounts") or Government
Obligations, as the case may be, described in Section 4.1(a)(1)(B)(i) or (ii),
respectively, in accordance with the provisions of Section 4.1 by reason of any
legal proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities of such series and the
coupons, if any, appertaining thereto shall be revived and reinstated as though
no deposit had occurred pursuant to Section 4.1 until such time as the Trustee
for such series is permitted to apply all such Amounts or Government
Obligations, as the case may be, in accordance with the provisions of Section
4.1; PROVIDED, HOWEVER, that if, due to the reinstatement of its rights or
obligations hereunder, the Company has made any payment of principal of (or
premium, if any) or interest, if any, on such Securities or coupons, the Company
shall be subrogated to the rights of the Holders of such Securities or coupons
to receive payment from such Amounts or Government Obligations, as the case may
be, held by the Trustee for such series.
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
Unless otherwise specified in Section 3.1 with respect to any series of
Securities, "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):
(a) default in the payment of any interest on any Security of
such series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(b) default in the payment of the principal of (or premium, if
any, on) any Security of such series at its Maturity; or
(c) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture (other than a default in the
performance, or a breach, of a covenant or warranty which is specifically dealt
with elsewhere in this Section or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than such
series),
31
and continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of such 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
(d) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company to the entry
of a decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by the Company of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by the Company to the filing of
such petition or the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by the Company in
writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such action.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to the Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series may, and the Trustee upon the request of
the Holders of not less than 25% in aggregate principal amount of
32
the Outstanding Securities of such series shall, declare the principal amount
(or, if the Securities of such series are Discounted Securities, such portion
of the principal amount as may be specified in the terms of that series) of
all the Securities of such series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by the Holders)
and, upon any such declaration such principal amount (or specified amount)
shall become due and payable. If an Event of Default specified in Section 5.1(d)
or (e) occurs and is continuing, then the principal of all the Securities
shall IPSO FACTO become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after such 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 of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all
Securities of such series,
(B) the principal of (and premium, if any,
on) any Securities of such series which have become
due otherwise than by such declaration of
acceleration and 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,
disbursement and advances of the Trustee, its agents
and counsel; and
(ii) all Events of Default with respect to Securities
of such series, other than the non-payment of principal of
Securities of such series which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 5.13.
33
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(a) 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
(b) default is made in the payment of principal of
(or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, with interest upon
the overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
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 for
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 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
34
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor,
upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims for the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any money or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or 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 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 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.5 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 and 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, be for the
35
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 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
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 6.7; and
SECOND: Subject to Article XII, to the payment of the
amounts then due and unpaid upon the Securities for principal
(and premium, if any) and interest, in respect of which or for
the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and
premium, if any) and interest.
SECTION 5.7 LIMITATION ON SUITS.
No Holder of any Securities 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
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than 25% in principal amount
for the Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against the cost, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
36
(e) 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 such series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, distribute or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
SECTION 5.8 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 on the terms stated herein, which is
absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.7) 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 5.9 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 the Company, the
Trustee and the Holders shall, subject to any determination in such
proceeding, 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 has been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as provided in Section 3.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Trustee and 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.
37
SECTION 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
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 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 5.12 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
(a) such direction shall not be in conflict with any
rule of law or with this Indenture; and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 5.13 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 and its
consequences, except a default
(a) in the payment of the principal of (or premium, if
any) or interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Article IX 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 5.14 UNDERTAKING FOR COSTS.
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All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of any undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Securities, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS.
The Company 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 stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (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 VI
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) With respect to Securities of any series, except during
the continuance of an Event of Default with respect to Securities of such
series,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of
39
the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions
which by provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements
for this Indenture.
(b) In case an Event of Default with respect to Securities of
any series has occurred and is continuing, the Trustee shall with respect to
Securities of such series exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, EXCEPT that
(1) this Subsection (c) shall not be construed
to limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
Securities of any series and with respect to any action taken
or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount
of the Outstanding Securities of such series relating to the
time, method and place of conducting and proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 6.2 NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail
to all Holders of Securities of such series, as their names and addresses
appear in the Security Register, notice of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; PROVIDED,
HOWEVER, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series
or in the payment of any sinking fund installment with respect to Securities,
the Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee, or a trust committee of the
board of directors or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders; and PROVIDED, FURTHER, that in the case of any default of the
character specified in Section 5.1(d) no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company request or Company Order
and any resolution of the Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate and Opinion of Counsel;
41
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence or
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein, and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
42
SECTION 6.5 MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities, and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 6.6 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder.
SECTION 6.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of
an express trust);
(b) 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
(c) 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 this
trust, 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.
SECTION 6.8 QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS.
The Trustee shall be subject to the provisions of Section 310(b) of
the Trust Indenture Act during the period of time required thereby. Nothing
herein shall prevent the Trustee from filing with the Commission the
application
43
referred to in the penultimate paragraph of Section 310(b) of the Trust
Indenture Act. In determining whether the Trustee has a conflicting interest
as defined in Section 310(b) of the Trust Indenture Act with respect to the
Securities of any series, there shall be excluded Securities of any
particular series of Securities other than that series.
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be:
(i) 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 exercise corporate
trust powers, and subject to supervision or examination by Federal or
State authority, or
(ii) a corporation or other Person organized and
doing business under the laws of a foreign government that is permitted
to act as Trustee pursuant to a rule, regulation, or other order of the
Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to a United States
institutional trustee,
having a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. No obligor
upon the Securities or a Person directly or indirectly controlling,
controlled by, or under common control with such obligor shall serve as
Trustee upon the Securities. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10 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 under
Section 6.11.
(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
44
Company. If an instrument of acceptance by a successor Trustee 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 an Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
310(b) of the Trust Indenture Act pursuant to Section 6.8 hereof after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months unless the
Trustee's duty to resign is stayed in accordance with Section 310(b) of
the Trust Indenture Act, or
(2) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 5.14, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of any one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee with
respect to the securities of such series and shall comply with the applicable
requirements of Section 6.11. 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
45
of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 6.11, become the
successor Trustee and supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders of such Securities
and accepted appointment in the manner required by Section 6.11, the Holder
of any Security of such series who has been a bona fide Holder for at least
six months may, subject to Section 5.14, on behalf of himself and all others
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 Company 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
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Securities of such series as their names and addresses appear in
the Security Register. 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 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee appointed
hereunder shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company 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, trusts and duties
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.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and
46
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,
trust and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers, trusts and
duties referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) 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 6.12 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
47
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 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
Subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities (as defined in
Subsection (c) of this Section):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three-month
period and valid as against the Company and its other creditors, except
any such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this Subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company
upon the date of such default; and
(2) all property received by the Trustee in respect
of any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three-month period, or an amount equal to the proceeds of any
such property, if disposed of, SUBJECT, HOWEVER, to the rights, if any,
of the Company and its other creditors in such property or such
proceeds. Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i)
payments made on account of any such claim by any
Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale
of any such claim by the Trustee to a third Person,
and (iii) distributions made in cash, securities or
other property in respect of claims filed against the
Company
48
in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy
Code or applicable State law;
(B) to realize, for its own account, upon
any property held by it as security for any such
claim, if such property was so held prior to the
beginning of such three-month period;
(C) to realize, for its own account, but
only to the extent of the claim hereinafter
mentioned, upon any property held by it as security
for any such claim, if such claim was created after
the beginning of such three-month period and such
property was received as security therefor
simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at
the time such property was so received the Trustee
had no reasonable cause to believe that a default as
defined in Subsection (c) of this Section would occur
within three months; or
(D) to receive payment on any claim referred
to in paragraph (B) or (C), against the release of
any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be,
to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Holders and the holders of other indenture securities
in such manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Code or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything
49
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee and the Holders of the Securities and the holders of other indenture
securities dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Code or applicable State law, but after crediting thereon receipts
on account of the indebtedness represented by their respective claims from
all sources other than from such dividends and from the funds and property so
held in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to
such claim, in bankruptcy or receivership or proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings
for reorganization is pending shall have jurisdiction (i) to apportion
between the Trustee and the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds
and property held in such special account and proceeds thereof, or (ii) in
lieu of such apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders and the holders of
other indenture securities, with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for
any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to
apply the provisions of this paragraph as a mathematical formula.
Any Trustee that has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim,
which would have given rise to the obligation to account, if
such Trustee had continued as Trustee, occurred after the
beginning of such three-month period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.
50
(b) There shall be excluded from the operation of Subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by the
Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture or
of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the
time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction as
defined in Subsection (c) of this Section;
(5) the ownership of stock or of other securities of
a corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper as defined in Subsection (c) of this
Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make
payment in full of the principal of or interest (and premium,
if any) on any of the Securities or upon the other indenture
securities when and as such principal or interest becomes due
and payable;
(2) the term "other indenture securities" means
securities upon which the Company is an obligor outstanding
under any
51
other indenture (i) under which the Trustee is also trustee,
(ii) which contains provisions substantially similar to the
provisions of this Section, and (iii) under which a default
exists at the time of the apportionment of the funds and
property held in such special account;
(3) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks and
payable upon demand;
(4) the term "self-liquidating paper" means any
draft, xxxx of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or
obligation;
(5) the term "Company" means any obligor upon
the Securities;
(6) the term "Federal Bankruptcy Code" means the
Bankruptcy Code or Title 11 of the United States Code; and
(7) the term "Federal Reserve Act, as amended"
means Title 12 of the United States Code.
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding 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 exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.6, 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
52
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
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 supervising or examining authority, then
for the purpose 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 the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. 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.
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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 6.7.
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 alternate
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.
SUNTRUST BANK, As Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than June 30th and December 30th
in each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of the preceding June 15th or December
15th, as the case may be; and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
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PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar or Paying Agent (if so acting). The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states the applicants' desire to communicate with other Holders with respect to
their rights under this Indenture or under the Securities and is accompanied by
a copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either
(1) afford such applicants access to the
information preserved at the time by the Trustee in accordance
with Section 7.2(a), or
(2) inform such applicants as to the approximate
number of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 7.2(a), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 7.2(a), a copy of the form
of proxy or other communication which is specified in such requests, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best
55
interests of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter
an order so declaring, the Trustee shall mail copies of such material to all
such Holders with reasonable promptness after the entry of such order and the
renewal of such tender, otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 7.2(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 7.2(b).
SECTION 7.3 REPORTS BY TRUSTEE.
(a) Within 60 days after March 31st of each year commencing
with the first March 31st after the first issuance of Securities, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear in
the Security Register, a brief report dated as of such March 31st with respect
to any of the following events which may have occurred within the prior 12
months (but if no such event has occurred within such period no report need be
transmitted):
(1) any change to its eligibility under Section 6.9
and its qualifications under Section 310(b) of the Trust
Indenture Act pursuant to Section 6.8 hereof;
(2) the creation of any material change to a
relationship specified in Section 310(b)(1) through Section
310(b)(10) of the Trust Indenture Act;
(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement
of which it claims or may claim a lien or charge, prior to
that of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not
be required (but may
56
elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Securities Outstanding on the date
of such report;
(4) any change to the amount, interest rate and
maturity date of all other indebtedness owing by the Company
(or by any other obligor on the Securities) to the Trustee in
its individual capacity, on the date of such report, with a
brief description of any property held as collateral security
therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section
6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any additional issue of Securities which the
Trustee has not previously reported; and
(7) any action taken by the Trustee in the
performance of its duties hereunder which it has not
previously reported and which in its opinion materially
affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee
in accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
to state, the circumstances surrounding the making thereof) made by the Trustee
(as such) since the date of the last report transmitted pursuant to Subsection
(a) of this Section (or if no such report has yet been so transmitted, since the
date of execution of this instrument) for the reimbursement of which it claims
or may claim a lien or charge, prior to that of the Securities, on property or
funds held or collected by it as Trustee and which it has not previously
reported pursuant to this Subsection, except that the Trustee shall not be
required (but may elect) to report such advances if such advances remaining
unpaid at any time aggregate 10% or less of the principal amount of the
Securities Outstanding at such time, such report to be transmitted within 90
days after such time.
(c) A copy of each such report shall, at the time of such
transmission to the Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, with the Commission and also with the
Company. The Company will notify the Trustee when the Securities are listed on
any stock exchange.
57
SECTION 7.4 REPORTS BY COMPANY.
The Company and any other obligor upon the Securities shall:
(a) file with the Trustee, within 15 days after the
Company or any other obligor upon the Securities is required
to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) which the Company or any other obligor upon the
Securities may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act;
or, if the Company or any other obligor upon the Securities is
not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with
the Trustee and, to the extent permitted by the Commission,
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Exchange
Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents
and reports with respect to compliance by the Company or any
other obligor upon the Securities with the conditions and
covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names
and addresses appear in the Security Register, within 30 days
after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by
the Company or any other obligor upon the Securities pursuant
to Subsections (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
58
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or
merge into another corporation or convey, transfer or lease
its properties and assets substantially as an entirety to any
Person, the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation organized and existing under the laws of the
United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interests on all
the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such
transaction and treating any indebtedness that becomes an
obligation of the Company or a Subsidiary as a result of such
transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened
and be continuing;
(3) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, any Principal
Property of the Company would become subject to a mortgage,
pledge, lien, security interest or other encumbrance that
would not be permitted by this Indenture, the Company or such
successor corporation or Person, as the case may be, shall
take such steps as shall be necessary effectively to secure
the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
59
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company, with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein; and thereafter, except in the
case of a lease, the Company shall be discharged from all obligations and
covenants under the Indenture and the Securities.
SECTION 8.3 OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive and rely upon an Officers' Certificate and 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 VIII.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
60
(2) to add to the covenants of the Company 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 Company; or
(3) to add any additional Events of Default with
respect to any or all series of Securities (and, if any such
Event of Default applies to fewer than all series of
Securities, stating each series to which such Event of Default
applies); or
(4) to add 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
(5) to change or eliminate any of the provisions of
this Indenture, PROVIDED that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to establish the form or terms of Securities of
any series as permitted by Sections 2.1 and 3.1; or
(7) 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 6.11(b); or
(8) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the
provisions of this Indenture; or
(9) to add to the conditions, limitations and
restrictions on the authorized amount, form, terms or purposes
of issue, authentication and delivery of Securities, as herein
set forth, other conditions, limitations and restrictions
thereafter to be observed; or
61
(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Section 4.1 or 10.11, PROVIDED that any
such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons
or any other series of Securities in any material respect; or
(11) to comply with the requirements of the
Commission in order to effect or maintain the qualification of
this Indenture under the Trust Indenture Act, as contemplated
by Section 9.5 or otherwise; or
(12) to make any change that does not adversely
affect the legal rights under this Indenture of any Holder of
Securities of any series.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(a) change the Stated Maturity of the principal of,
or any installment of interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or reduce the
amount of the principal of a Discounted Security that would be
due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, or change any Place
of Payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date); or
(b) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose
62
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
(c) modify any of the provisions of this Section or
Sections 5.13 and 10.10, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of
the Holder of each 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 10.10, or the deletion of this provision,
in accordance with the requirements of Sections 6.11(b) and
9.1(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of 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.
Upon the request of the Company, each accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture.
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 9.3 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 6.1) shall be fully protected in relying upon, an
Opinion of Counsel and an Officers' Certificate stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
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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 9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to the Article shall
conform to the requirements of the Trust Indenture Act as then in effect and
shall be deemed to include any provisions of the Trust Indenture Act necessary
to effect such conformity.
SECTION 9.6 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 Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where Securities of such series may be presented
or surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such series and this Indenture
may be served. The office of the Trustee at its Corporate Trust Office or at the
offices or agencies of its agent shall be such office or
64
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will
give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may 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 designation; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and any change in the location
of any such office or agency.
SECTION 10.3 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it
will, on or not more than one Business Day before each due date of the
principal of (and premium, if any) or interest on any of the Securities,
segregate and hold in trust for the benefit of the Holders entitled thereto a
sum sufficient to pay the principal (and premium, if any) or 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.
If the Company is not acting as Paying Agent, the Company will, on
or before each due date of the principal of (and premium, if any), or
interest on, any Securities, deposit with a Paying Agent a sum in same day
funds sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of such
action or any failure so to act.
If the Company is not acting as Paying Agent, the Company will cause
each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
will:
65
(a) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities
in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(b) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
making of any payment of principal (and premium, if any) or
interest;
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent; and
(d) acknowledge, accept and agree to comply in all
aspects with the provisions of this Indenture relating to the
duties, rights and disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Unless otherwise required by applicable law, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust
for the payment of the principal of (and premium, if any) or interest on any
Security and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense
of the Company cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, or mail to
each such Holder or both notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification,
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publication or mailing, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 10.4 CORPORATE EXISTENCE.
Subject to Article VIII, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and each Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries as a whole and
that the loss thereof is not disadvantageous in any material respect to the
Holders; and PROVIDED, FURTHER, HOWEVER, that the foregoing shall not
prohibit a sale, transfer or conveyance of a Subsidiary or any of their
respective assets in compliance with the terms of this Indenture.
SECTION 10.5 MAINTENANCE OF PROPERTIES.
The Company shall cause all properties owned by the Company or any
Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent the Company from discontinuing the
maintenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 10.6 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(ii) all material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
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SECTION 10.7 LIMITATIONS ON LIENS.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, hereafter, create, assume or suffer to exist any
mortgage, security interest, pledge or lien (herein referred to as a "Lien")
of or upon any Principal Property, or any shares of capital stock or
evidences of indebtedness for borrowed money issued by any Restricted
Subsidiary and owned by the Company or any Restricted Subsidiary, whether
owned at the date of this Indenture or thereafter acquired, without making
effective provision, and the Company in such case will make or cause to be
made effective provision, whereby the Securities shall be secured by such
Lien equally and ratably with any and all other indebtedness or obligations
thereby secured, so long as such indebtedness or obligations shall be so
secured; PROVIDED, HOWEVER, that the foregoing shall not apply to any of the
following:
(1) Liens that exist on the date of this Indenture;
(2) Liens on property of any corporation existing at
the time such corporation becomes a Subsidiary;
(3) Liens in favor of the Company or any Subsidiary;
(4) Liens in favor of governmental bodies to secure
progress, advance or other payments pursuant to contract or
statute or indebtedness incurred to finance all or a part of
construction of or improvements to property subject to such
Liens;
(5) Liens on property existing at the time of
acquisition thereof (including acquisition through merger or
consolidation), and construction and improvement Liens that
are entered into within 180 days from the date of such
construction or improvement, provided that in the case of
construction or improvement the Lien shall not apply to any
property theretofore owned by the Company or any Restricted
Subsidiary except substantially unimproved real property on
which the property so constructed or the improvement is
located;
(6) mechanics' and similar Liens arising in the
ordinary course of business in respect of obligations not due
or being contested in good faith;
(7) Liens for taxes, assessments, or governmental
charges or levies that are not delinquent or are being
contested in good faith;
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(8) Liens arising from any legal proceedings that are
being contested in good faith;
(9) any Liens that (i) are incidental to the ordinary
conduct of its business or the ownership of its properties and
assets, (ii) were not incurred in connection with the
borrowing of money or the obtaining of advances or credit and
(iii) do not in the aggregate materially detract from the
value of the property of the Company or any Subsidiary or
materially impair the use thereof in the operation of its
business;
(10) Liens securing industrial development or
pollution control bonds; and
(11) Liens for the sole purpose of extending,
renewing or replacing (or successively extending, renewing or
replacing) in whole or in part any of the foregoing.
(b) Notwithstanding the provisions of paragraph (5) of this
Section 10.7, the Company or any Restricted Subsidiary may, without equally
and ratably securing the Securities, create or assume Liens which would
otherwise be subject to the foregoing restrictions if at the time of such
creation or assumption, and after giving effect thereto, Exempted
Indebtedness does not exceed 15% of Consolidated Net Tangible Assets.
SECTION 10.8 LIMITATIONS ON SALE AND LEASEBACK.
(a) The Company will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any person providing for the
leasing (as lessee) by the Company or any Restricted Subsidiary of any
Principal Property (except for temporary leases for a term, including any
renewal thereof, of not more than three years and except for leases between
the Company and a Restricted Subsidiary or between Restricted Subsidiaries)
which property has been or is to be sold or transferred by the Company or a
Restricted Subsidiary to such person (herein referred to as a "Sale and
Leaseback Transaction") unless either (i) the Company or such Restricted
Subsidiary would be entitled to incur a Lien on such property without equally
and ratably securing the Securities pursuant to clauses (5) and (11) of
paragraph (a) of Section 10.7 or (ii) the net proceeds of such sale are at
least equal to the fair value (as determined by the Board of Directors) of
such property and the Company shall apply an amount equal to the net proceeds
of such sale to the retirement (other than any mandatory retirement or
payment at maturity) of (x) securities (other than any retirement prohibited
by the terms of any Securities pursuant to prohibitions on advance
refundings) or (y) Funded Debt of the Company or any Restricted Subsidiary
ranking prior to or
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on a parity with the Securities, within 120 days of the effective date of any
such arrangement.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 10.8, the Company or any Restricted Subsidiary may enter into Sale
and Leaseback Transactions, if at the time of such entering into, and after
giving effect thereto, Exempted Indebtedness does not exceed 15% of
Consolidated Net Tangible Assets.
SECTION 10.9 STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of Sections 10.1 to 10.8,
inclusive, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
SECTION 10.10 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.1 through 10.8 if, before or
after the time for such compliance, the Holders of not less than a majority
in aggregate principal amount of the Securities at the time Outstanding
shall, by Act of such Holders, waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such
waiver shall extend to or effect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of
any such covenant or condition shall remain in full force and effect.
SECTION 10.11 DEFEASANCE OF CERTAIN OBLIGATIONS.
If specified pursuant to Section 3.1 to be applicable to the
Securities of any series, the Company may omit to comply with and shall have
no liability in respect of any term, provision, condition or limitation set
forth in Section 8.1, Section 10.7 and Section 10.8 (and, if specified
pursuant to Section 3.1, the Company's obligations under any other covenant),
whether directly or indirectly, by reason of any reference elsewhere herein
to any such Section or such other covenant or by reason of reference in any
Section or such other covenant to any other provision herein or in any other
document, and any such omission to comply shall not constitute a default or
an Event of Default under Section 5.1(c); PROVIDED, HOWEVER, that the
following conditions have been satisfied:
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(1) with respect to all Outstanding Securities of
such series and any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, the
Company shall have deposited or caused to be deposited with
the Trustee for such series as trust funds or obligations in
trust an amount of
(i) cash in the currency or currency unit in
which the Securities of such series are payable
(except as otherwise specified pursuant to Section
3.1 for the Securities of such series);
(ii) Government Obligations; or
(iii) a combination of such cash and
Government Obligations,
in each case in an amount which, together with, as evidenced
by a Certificate of a Firm of Independent Public Accountants
delivered to such Trustee, the predetermined and certain
income to accrue on any Government Obligations when due
(without the consideration of any reinvestment thereof) is
sufficient to pay and discharge when due the entire
indebtedness on all such Outstanding Securities of such series
and any related coupons for unpaid principal (and premium, if
any) and interest, if any, to the Stated Maturity or any
Redemption Date, as the case may be;
(2) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a
party or by which it is bound;
(3) no Event of Default or event which with the
giving of notice or lapse of time, or both, would become an
Event of Default with respect to the Securities of that Series
shall have occurred and be continuing on the date of such
deposit and no Event of Default under Section 5.1(d) or
Section 5.1(e) or event of which with the giving of notice or
lapse of time, or both, would become an Event of Default under
Section 5.1(d) or Section 5.1(e) shall have occurred and be
continuing on the 91st day after such date;
(4) the Company 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 defeasance contemplated in the Section have been complied
with;
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(5) if the Securities of such series and any related
coupons are not to become due and payable at their Stated
Maturity within one year of the date of such deposit or are
not to be called for redemption within one year of the date of
such deposit under arrangements satisfactory to such Trustee
as of the date of such deposit, then the Company shall have
given, not later than the date of such deposit, an Opinion of
Counsel confirming that the Holders of the Securities of such
series will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance
and will be subject to federal income tax on the same amount
and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred;
and
(6) the Company shall have delivered to the Trustee
an Opinion of Counsel (which may be subject to the customary
exceptions) to the effect that after the 91st day following
deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally.
All obligations of the Company under this Indenture with respect to the
Securities of such series, other than with respect to Section 8.1, Section 10.7
and Section 10.8 (and, if specified pursuant to Section 3.1, the Company's
obligations under any other covenant), shall remain in full force and effect.
Anything in this Section 10.11 to the contrary notwithstanding, the Trustee for
any series of Securities shall deliver or pay to the Company, from time to time
upon Company Request, any money or Government Obligations held by it as provided
in this Section 10.11 which, as expressed in a Certificate of a Firm of
Independent Public Accountants delivered to such Trustee, are in excess of the
amount thereof which would then have been required to be deposited for the
purpose of which such money or Government obligations were deposited or
received, provided such delivery can be made without liquidating any Government
Obligations.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
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otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant to
Section 11.1 shall be evidenced by a Board Resolution and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice period shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities to be redeemed.
SECTION 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities or portions thereof to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption, by such method as the Trustee
shall deem to be fair and appropriate, and the amounts to be redeemed may be
equal to $1,000 or any integral multiple thereof.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
SECTION 11.4 NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 days prior to the Redemption Date, to each
Holder of Securities to be redeemed, at his address appearing in the Security
Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be
redeemed, the identification of the particular Securities to be
redeemed;
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(d) in the case of a Security to be redeemed in part, the
principal amount of such Security to be redeemed and that after the
Redemption Date upon surrender of such Security, a new Security or
Securities in the aggregate principal amount equal to the unredeemed
portion thereof will be issued;
(e) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof, and
that (unless the Company shall default in payment of the Redemption
Price) interest thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(h) the CUSIP Number of the Securities.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
SECTION 11.5 DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money in same day funds 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 or portions thereof which are to be redeemed on that date.
SECTION 11.6 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
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
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such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price together with accrued interest to
the Redemption Date; PROVIDED, HOWEVER, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such on the relevant Regular Record Dates according to the terms and the
provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security.
SECTION 11.7 SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at the office or agency of the Company maintained for such purpose pursuant to
Section 10.2 (with, if the Company, the Security Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Security Registrar or the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge to the Holder, a new Security or
Securities, 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; PROVIDED, HOWEVER, that the
Depositary need not surrender Global Securities for a partial redemption and may
be authorized to make a notation on such Global Security of such partial
redemption. In the case of a partial redemption of the Global Securities, the
Depositary, and in turn, the participants in the Depositary, shall have the
responsibility to select any Securities to be redeemed by random lot.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided
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for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (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
Company 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 the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, PROVIDED that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, 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 of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. The Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.
This Indenture may be signed in any number of counterparts with the
same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original of
this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
XxXXXXXXX & COMPANY, INCORPORATED
By
____________________________________
Name:
Title:
SUNTRUST BANK,
Trustee
By
____________________________________
Name:
Title:
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