EXHIBIT 4
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XXXXXXX CORPORATION
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INDENTURE
Dated as of September __, 1998
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THE FIRST NATIONAL BANK OF
CHICAGO
Trustee
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TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE........................... 1
SECTION 1.1. DEFINITIONS....................................................... 1
SECTION 1.2. OTHER DEFINITIONS................................................. 6
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT................. 6
SECTION 1.4. RULES OF CONSTRUCTION............................................. 7
ARTICLE II. THE SECURITIES...................................................... 7
SECTION 2.1. FORM AND DATING................................................... 7
SECTION 2.2. EXECUTION AND AUTHENTICATION...................................... 8
SECTION 2.3. REGISTRAR AND PAYING AGENT........................................ 9
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST............................... 9
SECTION 2.5. HOLDER LISTS...................................................... 9
SECTION 2.6. TRANSFER AND EXCHANGE............................................. 10
SECTION 2.7. REPLACEMENT SECURITIES............................................ 14
SECTION 2.8. OUTSTANDING SECURITIES............................................ 14
SECTION 2.9. TREASURY SECURITIES............................................... 15
SECTION 2.10. TEMPORARY SECURITIES............................................. 15
SECTION 2.11. CANCELLATION..................................................... 15
SECTION 2.12. DEFAULTED INTEREST............................................... 15
ARTICLE III. REDEMPTION......................................................... 16
SECTION 3.1. NOTICE TO TRUSTEE................................................. 16
SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED............................ 16
SECTION 3.3. NOTICE OF REDEMPTION.............................................. 16
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.................................... 17
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE....................................... 17
SECTION 3.6. SECURITIES REDEEMED IN PART....................................... 17
SECTION 3.7. OPTIONAL REDEMPTION............................................... 18
ARTICLE IV. COVENANTS........................................................... 18
SECTION 4.1. PAYMENT OF PRINCIPAL AND INTEREST................................. 18
SECTION 4.2. SEC REPORTS....................................................... 18
SECTION 4.3. COMPLIANCE CERTIFICATE............................................ 18
SECTION 4.4. STAY, EXTENSION AND USURY LAWS.................................... 19
SECTION 4.5. CORPORATE EXISTENCE............................................... 19
SECTION 4.6. TAXES............................................................. 19
SECTION 4.7. LIMITATION ON SECURED DEBT........................................ 19
SECTION 4.8. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS..................... 20
SECTION 4.9. EXEMPTED INDEBTEDNESS............................................. 21
ARTICLE V. SUCCESSORS........................................................... 21
SECTION 5.1. LIMITATION ON CONSOLIDATION, MERGER AND SALE OF ASSETS............ 21
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED................................. 21
ARTICLE VI. DEFAULTS AND REMEDIES............................................... 22
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TABLE OF CONTENTS
PAGE
SECTION 6.1. EVENTS OF DEFAULT................................................. 22
SECTION 6.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT................ 23
SECTION 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE... 24
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM.................................. 25
SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES....... 25
SECTION 6.6. APPLICATION OF MONEY COLLECTED.................................... 25
SECTION 6.7. LIMITATION ON SUITS............................................... 26
SECTION 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST.. 26
SECTION 6.9. RESTORATION OF RIGHTS AND REMEDIES................................ 27
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE................................... 27
SECTION 6.11. DELAY OR OMISSION NOT WAIVER..................................... 27
SECTION 6.12. CONTROL BY HOLDERS............................................... 27
SECTION 6.13. WAIVER OF PAST DEFAULTS.......................................... 28
SECTION 6.14. UNDERTAKING FOR COSTS............................................ 28
ARTICLE VII. TRUSTEE............................................................ 29
SECTION 7.1. DUTIES OF TRUSTEE................................................. 29
SECTION 7.2. RIGHTS OF TRUSTEE................................................. 30
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE...................................... 31
SECTION 7.4. TRUSTEE'S DISCLAIMER.............................................. 31
SECTION 7.5. NOTICE OF DEFAULTS................................................ 31
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS..................................... 31
SECTION 7.7. COMPENSATION AND INDEMNITY........................................ 32
SECTION 7.8. REPLACEMENT OF TRUSTEE............................................ 32
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.................................. 34
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.................................... 34
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY................ 34
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE............................ 34
SECTION 8.1. SATISFACTION AND DISCHARGE OF INDENTURE........................... 34
SECTION 8.2. APPLICATION OF TRUST FUNDS; INDEMNIFICATION....................... 35
SECTION 8.3. LEGAL DEFEASANCE OF SECURITIES OF EITHER SERIES................... 36
SECTION 8.4. COVENANT DEFEASANCE............................................... 37
SECTION 8.5. REPAYMENT TO COMPANY.............................................. 38
ARTICLE IX. AMENDMENTS AND WAIVERS.............................................. 39
SECTION 9.1. WITHOUT CONSENT OF HOLDERS........................................ 39
SECTION 9.2. WITH CONSENT OF HOLDERS........................................... 39
SECTION 9.3. LIMITATIONS....................................................... 40
SECTION 9.4. COMPLIANCE WITH TRUST INDENTURE ACT............................... 40
SECTION 9.5. REVOCATION AND EFFECT OF CONSENTS................................. 40
SECTION 9.6. NOTATION ON OR EXCHANGE OF SECURITIES............................. 41
SECTION 9.7. TRUSTEE PROTECTED................................................. 41
ARTICLE X. MISCELLANEOUS........................................................ 41
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TABLE OF CONTENTS
PAGE
SECTION 10.1. TRUST INDENTURE ACT CONTROLS..................................... 41
SECTION 10.2. NOTICES.......................................................... 41
SECTION 10.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS...................... 42
SECTION 10.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT............... 42
SECTION 10.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.................... 42
SECTION 10.6. RULES BY TRUSTEE AND AGENTS...................................... 43
SECTION 10.7. LEGAL HOLIDAYS................................................... 43
SECTION 10.8. NO RECOURSE AGAINST OTHERS....................................... 43
SECTION 10.9. COUNTERPARTS..................................................... 43
SECTION 10.10. GOVERNING LAWS.................................................. 43
SECTION 10.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS................... 44
SECTION 10.12. SUCCESSORS...................................................... 44
SECTION 10.13. SEVERABILITY.................................................... 44
SECTION 10.14. TABLE OF CONTENTS, HEADINGS, ETC................................ 44
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XXXXXXX CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of September __, 1998
(S) 310(a)(1)................................................................. 7.10
(a)(2)................................................................. 7.10
(a)(3)................................................................. Not Applicable
(a)(4)................................................................. Not Applicable
(a)(5)................................................................. 7.10
(b).................................................................... 7.10
(S) 311(a).................................................................... 7.11
(b).................................................................... 7.11
(c).................................................................... Not Applicable
(S) 312(a).................................................................... 2.5
(b).................................................................... 10.3
(c).................................................................... 10.3
(S) 313(a).................................................................... 7.6
(b)(1)................................................................. 7.6
(b)(2)................................................................. 7.6
(c)(1)................................................................. 7.6
(d).................................................................... 7.6
(S) 314(a).................................................................... 4.2, 10.5
(b).................................................................... Not Applicable
(c)(1)................................................................. 10.4
(c)(2)................................................................. 10.4
(c)(3)................................................................. Not Applicable
(d).................................................................... Not Applicable
(e).................................................................... 10.5
(f).................................................................... Not Applicable
(S) 315(a).................................................................... 7.1
(b).................................................................... 7.5
(c).................................................................... 7.1
(d).................................................................... 7.1
(e).................................................................... 6.14
(S) 316(a).................................................................... 2.9
(a)(1)(A).............................................................. 6.12
(a)(1)(B).............................................................. 6.13
(b).................................................................... 6.8
(S) 317(a)(1)................................................................. 6.3
(a)(2)................................................................. 6.4
(b).................................................................... 2.4
(S) 318(a).................................................................... 10.1
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
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Indenture dated as of September __, 1998 between Xxxxxxx Corporation,
a Delaware corporation ("Company"), and The First National Bank of Chicago, a
national banking corporation ("Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Securities issued under
this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"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" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"Agent" means any Registrar or Paying Agent.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Security, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Attributable Debt", in respect of a Sale and Leaseback Transaction,
means, as of any particular time, the present value (discounted at the rate of
interest implicit in the lease involved in such Sale and Leaseback Transaction,
as determined in good faith by the Company) of the obligation of the lessee
thereunder for rental payments (excluding, however, any amounts required to be
paid by such lessee, whether or not designated as rent or additional rent, on
account of maintenance and repairs, insurance, taxes, assessments, water rates
or similar charges or any amounts required to be paid by such lessee thereunder
contingent upon the amount of sales, maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges) during the remaining term of such
lease (including any period for which such lease has been extended or may, at
the option of the lessor, be extended).
"Board of Directors" means the Board of Directors of the Company or
any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been adopted by the
Board of Directors or pursuant to authorization by the Board of Directors and to
be in full force and effect on the date of the certificate of the Secretary or
Assistant Secretary, as the case may be, and delivered to the Trustee.
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"Business Day" means any day except a Saturday, Sunday or a legal
holiday in The City of New York on which banking institutions are authorized or
required by law, regulation or executive order to close.
"Company" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Company Order" means a written order signed in the name of the
Company by two Officers, one of whom must be the Company's principal executive
officer, principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the
Company by its Chairman of the Board of Directors, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated Assets" means the aggregate of all assets of the Company
and its Subsidiaries (including the value of all existing Sale and Leaseback
Transactions and any assets resulting from the capitalization of other long-term
lease obligations in accordance with GAAP), appearing on the most recent
available consolidated balance sheet of the Company and its Subsidiaries at
their net book values, after deducting related depreciation, amortization and
other valuation reserves, all prepared in accordance with GAAP.
"Consolidated Current Liabilities" means the aggregate of the current
liabilities of the Company and its Subsidiaries appearing on the most recent
available consolidated balance sheet of the Company and its Subsidiaries, all in
accordance with GAAP. In no event shall Consolidated Current Liabilities include
any obligation of the Company and its Subsidiaries issued under a revolving
credit or similar agreement if the obligation issued under such agreement
matures by its terms within twelve months from the date thereof but by the terms
of such agreement such obligation may be renewed or extended or the amount
thereof reborrowed or refunded at the option of the Company or any Subsidiary
for a term in excess of 12 months from the date of determination.
"Consolidated Net Assets" means Consolidated Assets after deduction of
Consolidated Current Liabilities.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Definitive Security" means a certificated Security registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of the applicable Form of Security attached hereto
except that such Security shall not bear the Global Security Legend and shall
not have the "Schedule of Exchanges of Interests in the Global Security"
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attached to each Form of Security.
"Depository" means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depository for such Series by the Company,
which Depository shall be a clearing agency which (i) credits beneficial
interests in such Global Securities to its participating organizations through a
computerized book-entry system and (ii) if located in the United States, is
registered under the Exchange Act; and if at any time there is more than one
such person, "Depository" as used with respect to the Securities of any Series
shall mean the Depository with respect to the Securities of such Series.
"Dollars" means the currency of The United States of America.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than twelve months from the date of the most recent
consolidated balance sheet of the Company and its Subsidiaries or renewable and
extendable beyond twelve months at the option of the borrower and all
obligations in respect of lease rentals which under GAAP would be shown on the
consolidated balance sheet of the Company as a liability item other than a
current liability; provided, however, that Funded Debt shall not include any of
the foregoing to the extent that such indebtedness or obligations are not
required by GAAP to be shown on the balance sheet of the Company.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Securities, issued to the Depository for such Series
or its nominee, and registered in the name of such Depository or nominee.
"Holder" or "Securityholder" means a person in whose name a Security
is registered.
"Indebtedness" means, with respect to a Person, (i) all liabilities
representing borrowed money or purchase money obligations as shown on the
liability side of a balance sheet, (ii) all indebtedness secured by any Lien
existing on property owned subject to such Lien, whether or not such secured
indebtedness has been assumed and (iii) contingent obligations in respect of, or
to purchase or otherwise acquire, any such indebtedness of others described in
the foregoing clauses (i) or (ii) above, including guarantees and endorsements
(other than for purposes of collection in the ordinary course of business of any
such indebtedness).
"Indenture" means this Indenture as amended or supplemented from time
to time and shall include the form and terms of particular Securities
established as contemplated hereunder.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Security through a Participant.
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"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien or
other security arrangement of any kind or nature whatsoever on or with respect
to such property or assets (including any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Maturity" when used with respect to any Security or installment of
principal thereof or interest thereon, means the date on which the principal of
such Security or such installment of principal or interest becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, notice of option to elect
repayment or otherwise.
"Officer" means the Chairman of the Board of Directors, any President,
any Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the Company's principal executive officer, principal
financial officer or principal accounting officer.
"Opinion of Counsel" means a written opinion of legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company.
"Participant" means, with respect to the Depositary, a Person who has
an account with the Depositary.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on the Security.
"Principal Property" means any manufacturing plant, warehouse, office
building or parcel of real property (including fixtures but excluding leases and
other contract rights which might otherwise be deemed real property) owned by
the Company or any Subsidiary, whether owned on the date of the Indenture or
thereafter, provided each such plant, warehouse, office building or parcel of
real property has a gross book value (without deduction for any depreciation
reserves) at the date as of which the determination is being made of in excess
of two percent of the Consolidated Net Assets of the Company and the
Subsidiaries, other than any such plant, warehouse, office building or parcel of
real property or portion thereof which, in the opinion of the Board of Directors
(evidenced by a Board Resolution delivered to the Trustee), is not of material
importance to the business conducted by the Company and its Subsidiaries taken
as a whole.
4
"Responsible Officer" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Secured Debt" means Indebtedness for borrowed money and any Funded
Debt which, in each case, is secured by a security interest in (a) any Principal
Property or (b) any shares of capital stock or Indebtedness of any Subsidiary.
"Securities Act" means the Securities Act of 1933, as amended.
"Series" means each of the Series 1 Securities and the Series 2
Securities.
"Significant Subsidiary" means any direct or indirect Subsidiary of
the Company that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933,
as amended, as such regulation is in effect on the date hereof.
"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" of any specified Person means any corporation or other
entity (including, without limitation, partnerships, joint ventures and
associations) of which at least a majority of the outstanding stock having by
the terms thereof ordinary voting power for the election of directors of such
corporation or other entity (irrespective of whether or not at the time stock of
any other class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time directly or
indirectly owned by such Person, or by one or more Subsidiaries, or by such
Person and one or more other Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"TIA" means, to the extent required by any such amendment, the Trust Indenture
Act as so amended.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each person who is then a Trustee hereunder, and
if at any time there is more than one such person, "Trustee" as used with
respect to the Securities of either Series shall mean the Trustee with respect
to Securities of that Series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii)
5
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of The United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by The United
States of America, and which in the case of (i) and (ii) are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation evidenced by such
depository receipt.
Section 1.2. Other Definitions.
DEFINED IN
TERM SECTION
"Authentication Order" 2.2
"Bankruptcy Law" 6.1
"Custodian" 6.1
"DTC" 2.3
"Event of Default" 6.1
"Form of Security" 2.1.1
"GAAP" 1.4(c)
"Legal Holiday" 10.7
"Paying Agent" 2.3
"Registrar" 2.3
"Sale and Leaseback Transaction" 4.8
"Series 1 Securities" 2.1.1
"Series 2 Securities" 2.1.1
"Securities" 2.1.1
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company
and any
6
successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein are used herein as so defined.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with United States generally accepted accounting
principles;
(c) references to "GAAP" or "generally accepted accounting principles"
shall mean United States generally accepted accounting principles in effect
as of the time when and for the period as to which such accounting
principles are to be applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the plural
include the singular; and
(f) provisions apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 2.1. Form and Dating.
2.1.1. General
. Attached hereto as Annex A-1 and Annex A-2, respectively, are true
and correct copies of specimen securities (each a "Form of Security")
representing the Company's _____% Senior Notes due 2008 (the "Series 1
Securities") and the Company's _____% Senior Notes due 2028 (the "Series 2
Securities," and collectively with the Series 1 Securities, the "Securities").
The Securities may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Security shall be dated the date of its
authentication. The Securities shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture, and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Security conflicts with the express
7
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
2.1.2. Global Securities
. Securities issued in global form shall be substantially in the form
of the applicable Form of Security attached hereto (including the Global
Security Legend thereon and the "Schedule of Exchanges of Interests in the
Global Security" attached thereto). Securities issued in definitive form shall
be substantially in the form of the applicable Form of Security attached hereto
(but without the Global Security Legend thereon and without the "Schedule of
Exchanges of Interests in the Global Security" attached thereto). Each Global
Security shall represent such of the outstanding Securities as shall be
specified therein and each shall provide that it shall represent the aggregate
principal amount of outstanding Securities from time to time endorsed thereon
and that the aggregate principal amount of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Security to
reflect the amount of any increase or decrease in the aggregate principal amount
of outstanding Securities represented thereby shall be made by the Trustee or
the Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.6 hereof.
Section 2.2. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities
and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time a Security is authenticated, the Security shall nevertheless
be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers (an "Authentication Order"), authenticate Series 1 Securities and
Series 2 Securities for original issue up to the aggregate principal amount
stated in paragraph 1 of the applicable Form of Security. The aggregate
principal amount of Series 1 Securities and Series 2 Securities outstanding at
any time may not exceed such amount except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
8
Section 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and
the term "Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
shall notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The Company
or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Securities.
Section 2.4. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Securities, and will notify the
Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Securities.
Section 2.5. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders, and
the Company shall otherwise comply with TIA (S) 312(a).
9
Section 2.6. Transfer and Exchange.
2.6.1. Transfer and Exchange of Global Securities
. A Global Security may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Securities will be exchanged by the Company for
Definitive Securities if (i) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within 120
days after the date of such notice from the Depositary or (ii) the Company in
its sole discretion determines that the Global Securities (in whole but not in
part) should be exchanged for Definitive Securities and delivers a written
notice to such effect to the Trustee. Upon the occurrence of either of the
preceding events in (i) or (ii) above, Definitive Securities shall be issued in
such names as the Depositary shall instruct the Trustee. Global Securities also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.7
and 2.10 hereof. Every Security authenticated and delivered in exchange for, or
in lieu of, a Global Security or any portion thereof, pursuant to this Section
2.6 or Section 2.7 or 2.10 hereof, shall be authenticated and delivered in the
form of, and shall be, a Global Security. A Global Security may not be
exchanged for another Security other than as provided in this Section 2.6.1,
however, beneficial interests in a Global Security may be transferred and
exchanged as provided in Section 2.6.2, 2.6.3 or 2.6.7 hereof.
2.6.2. Transfer and Exchange of Beneficial Interests in the Global
Securities
. The transfer and exchange of beneficial interests in the Global
Securities shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the applicable procedures. Transfers of
beneficial interests in the Global Securities also shall require compliance with
either subparagraph (a) or (b) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(a) Transfer of Beneficial Interests in the Same Global Security
. Beneficial interests in any Global Security may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in a
Global Security. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this Section
2.6.2(a).
(b) All Other Transfers and Exchanges of Beneficial Interests in
Global Securities
. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.6.2(a) above, the transferor of such
beneficial interest must deliver to the Registrar either (A) (1) a written order
from a Participant or an Indirect Participant given to the
10
Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another Global
Security in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive Security
in an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Security shall be registered
to effect the transfer or exchange referred to in (1) above. Upon satisfaction
of all of the requirements for transfer or exchange of beneficial interests in
Global Securities contained in this Indenture and the Securities or otherwise
applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Security(s) pursuant to Section 2.6.7 hereof.
2.6.3. Transfer or Exchange of Beneficial Interests for Definitive
Securities
. If any holder of a beneficial interest in a Global Security
proposes to exchange such beneficial interest for a Definitive Security or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Definitive Security, then, upon satisfaction of the conditions set
forth in Section 2.6.2(b) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Security to be reduced accordingly
pursuant to Section 2.6.8 hereof, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the instructions a
Definitive Security in the appropriate principal amount. Any Definitive Security
issued in exchange for a beneficial interest pursuant to this Section 2.6.3
shall be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Securities to
the Persons in whose names such Securities are so registered.
2.6.4. Transfer and Exchange of Definitive Securities for Beneficial
Interests
. A Holder of a Definitive Security may exchange such Security for a
beneficial interest in a Global Security or transfer such Definitive Securities
to a Person who takes delivery thereof in the form of a beneficial interest in a
Global Security at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Definitive Security and
increase or cause to be increased the aggregate principal amount of one of the
Global Securities.
2.6.5. Transfer and Exchange of Definitive Securities for Definitive
Securities
. Upon request by a Holder of Definitive Securities and such Holder's
compliance with the provisions of this Section 2.6.5, the Registrar shall
register the transfer or exchange of Definitive Securities. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such
11
Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable. A Holder of Definitive Securities may transfer such
Securities to a Person who takes delivery thereof in the form of a Definitive
Security.
2.6.6. Legends
. The following legends shall appear on the face of all Global
Securities issued under this Indenture unless specifically stated otherwise in
the applicable provisions of this Indenture. Each Global Security shall bear a
legend in substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE THEREOF. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, 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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
2.6.7. Cancellation and/or Adjustment of Global Securities
. At such time as all beneficial interests in a particular Global
Security have been exchanged for Definitive Securities or a particular Global
Security has been redeemed, repurchased or canceled in whole and not in part,
each such Global Security shall be returned to or retained and canceled by the
Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Security or for Definitive Securities, the
principal amount of Securities represented by such Global Security shall be
reduced accordingly and an endorsement shall be
12
made on such Global Security by the Trustee or by the Depositary at the
direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
2.6.8. General Provisions Relating to Transfers and Exchanges.
(a) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Securities and
Definitive Securities upon the Company's order or at the Registrar's
request.
(b) No service charge shall be made to a holder of a beneficial
interest in a Global Security or to a Holder of a Definitive Security for
any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.6, 5.1 and 9.6 hereof).
(c) The Registrar shall not be required to register the transfer or
exchange of any Security selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
(d) All Global Securities and Definitive Securities issued upon any
registration of transfer or exchange of Global Securities or Definitive
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Definitive Securities surrendered upon such
registration of transfer or exchange.
(e) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Securities during a period beginning at the
opening of business 15 days before the day of any selection of Securities
for redemption under Section 3.2 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (C) to
register the transfer of or to exchange a Security between a record date
and the next succeeding interest payment date.
(f) Prior to due presentment for the registration of a transfer of any
Security, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of and
interest on such Securities and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the
contrary.
(g) The Trustee shall authenticate Global Securities and Definitive
Securities in
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accordance with the provisions of Section 2.2 hereof.
(h) All certifications, certificates and Opinions of Counsel required
to be submitted to the Registrar pursuant to this Section 2.6 to effect a
registration of transfer or exchange may be submitted by facsimile.
Section 2.7. Replacement Securities.
If any mutilated Security is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Security, the Company shall issue and the Trustee, upon receipt
of an Authentication Order, shall authenticate a replacement Security if the
Trustee's requirements are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee, any Agent
and any authenticating agent from any loss that any of them may suffer if a
Security is replaced. The Company may charge the Holder for its expenses in
replacing a Security.
Every replacement Security is a valid obligation of the Company and
shall evidence the same debt as the Security for which it is a replacement.
Section 2.8. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.9 hereof, a Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.7 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Securities payable on that date, then on and after that date
such Securities shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.9. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of either Series have concurred in any direction, waiver or consent,
Securities owned by the Company,
14
or by any Affiliate of the Company, shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities of such Series that the Trustee knows are so owned shall be so
disregarded.
Section 2.10. Temporary Securities.
Until certificates representing Securities are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of certificated Securities but may have variations
that the Company considers appropriate for temporary Securities and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities.
Holders of temporary Securities shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Securities (subject to the record retention requirement
of the Exchange Act). Certification of the destruction of all canceled
Securities shall be delivered to the Company. The Company may not issue new
Securities to replace Securities that it has paid or that have been delivered to
the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities of
either Series, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, in each case at the rate
provided in such Securities and in Section 4.1 hereof. The Company shall notify
the Trustee in writing of the amount of defaulted interest proposed to be paid
on each Security and the date of the proposed payment. The Company shall fix
or cause to be fixed each such special record date and payment date, provided
that no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
15
ARTICLE III.
REDEMPTION
Section 3.1. Notice to Trustee.
The Company may, with respect to either Series of Securities, reserve
the right to redeem and pay the Series of Securities or may covenant to redeem
and pay the Series of Securities or any part thereof prior to the Stated
Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants to
redeem prior to the Stated Maturity thereof all or part of the Series of
Securities pursuant to the terms of such Securities, it shall notify the Trustee
of the redemption date and the principal amount of the Series of Securities to
be redeemed. The Company shall give the notice at least 45 days before the
redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.2. Selection of Securities to be Redeemed.
If less than all the Securities of a Series are to be redeemed at any
time, the Trustee shall select the Securities of the Series to be redeemed in
any manner that the Trustee deems fair and appropriate. The Trustee shall make
the selection from Securities of the Series outstanding not previously called
for redemption. The Trustee may select for redemption portions of the principal
of Securities of the Series that have denominations larger than $1,000.
Securities of the Series and portions of them it selects shall be in amounts of
$1,000 or whole multiples of $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
Section 3.3. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed.
The notice shall identify the Securities of the Series to be redeemed
(including CUSIP numbers) and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(e) that interest on Securities called for redemption ceases to accrue
on and after the redemption date; and
16
(f) any other information as may be required by the terms of the
particular Series or the Securities being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided in
Section 3.3, Securities called for redemption become due and payable on the
redemption date and at the redemption price. A notice of redemption may not be
conditional. Upon surrender to the Paying Agent, such Securities shall be paid
in accordance with the provisions provided for in the Securities.
Section 3.5. Deposit of Redemption Price.
On or before 10:00 a.m., New York City time, on the redemption date,
the Company shall deposit with the Paying Agent money sufficient to pay the
redemption price of and accrued interest, if any, on all Securities to be
redeemed on that date. The Trustee or the Paying Agent shall promptly return to
the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Securities to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Securities or the portions of Securities called for redemption. If a
Security is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Security was registered at the close of
business on such record date. If any Security called for redemption shall not
be so paid upon surrender for redemption because of the failure of the Company
to comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case at
the rate provided in the Securities.
Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed portion of the Security
surrendered.
Section 3.7. Optional Redemption.
The Securities of either Series will be redeemable, as a whole or in
part, at the option of the Company, pursuant to the terms contained in such
Securities.
17
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the Holders of
each Series of Securities that it will duly and punctually pay the principal of
and interest, if any, on the Securities of such Series in accordance with the
terms of such Securities and this Indenture.
Section 4.2. SEC Reports.
The Company shall deliver to the Trustee, within 15 days after it
files them with the SEC, 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 SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA (S) 314(a).
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.3. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each and
every covenant (without regard to periods of grace or notice requirements)
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
Section 4.4. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at
18
any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture or the Securities; and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not, by resort to any such law, 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
has been enacted.
Section 4.5. Corporate Existence.
Subject to Article V, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each
Significant Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Significant
Subsidiary, 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 taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
Section 4.6. Taxes.
The Company shall, and shall cause each of its Significant
Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies, except as contested in good faith and by appropriate
proceedings.
Section 4.7. Limitation on Secured Debt.
The Company will not, and will not permit any Subsidiary to, create,
assume, or guarantee any Secured Debt without making effective provision for
securing the Securities equally and ratably with such Secured Debt. The
foregoing restrictions shall not apply, however, to debt secured by (i) purchase
money mortgages created to secure payment for the acquisition or construction of
any property including, but not limited to, any indebtedness incurred by the
Company or a Subsidiary prior to, at the time of, or within 180 days after the
later of the acquisition, the completion of construction (including any
improvements on an existing property) or the commencement of commercial
operation of such property, which indebtedness is incurred for the purpose of
financing all or any part of the purchase price of such property or construction
or improvements on such property, (ii) mortgages, pledges, liens, security
interest or encumbrances (collectively referred to herein as "security
interests") on property, or any conditional sales agreement or any title
retention with respect to property, existing at the time of acquisition thereof,
whether or not assumed by the Company or a Subsidiary, (iii) security interests
on property or shares of capital stock or indebtedness of any corporation or
firm existing at the time such corporation or firm becomes a Subsidiary, (iv)
security interests in property or shares of capital stock or indebtedness of a
corporation existing at the time such corporation is
19
merged into or consolidated with the Company or a Subsidiary or at the time of a
sale, lease, or other disposition of the properties of a corporation or firm as
an entirety or substantially as an entirety to the Company or a Subsidiary,
provided that no such security interests shall extend to any other Principal
Property of the Company or such Subsidiary prior to such acquisition or to other
Principal Property thereafter acquired other than additions or improvements to
the acquired property, (v) security interests on property of the Company or a
Subsidiary in favor of the United States of America or any state thereof, or in
favor of any other country, or any department, agency, instrumentality or
political subdivision thereof (including, without limitation, security interests
to secure indebtedness of the pollution control or industrial revenue type) in
order to permit the Company or any Subsidiary to perform a contract or to secure
indebtedness incurred for the purpose of financing all or any part of the
purchase price for the cost of constructing or improving the property subject to
such security interests or which is required by law or regulation as a condition
to the transaction of any business or the exercise of any privilege, franchise
or license, (vi) security interests on any property or assets of any Subsidiary
to secure indebtedness owing by it to the Company or to another Subsidiary,
(vii) any mechanics', materialmen's, carriers' or other similar lien arising in
the ordinary course of business (including construction of facilities) in
respect of obligations which are not yet due or which are being contested in
good faith, (viii) any security interest for taxes, assessments or government
charges or levies not yet delinquent, or already delinquent, but the validity of
which is being contested in good faith, (ix) any security interest arising in
connection with legal proceedings being contested in good faith, including any
judgment lien so long as execution thereof is being stayed, (x) landlords' liens
on fixtures located on premises leased by the Company or a Subsidiary in the
ordinary course of business, or (xi) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in part, of any
security interest referred to in the foregoing clauses (i) to (x) inclusive.
Section 4.8. Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any Subsidiary to, enter any
lease for a term longer than three years (excluding leases of newly acquired,
improved or constructed property) covering any Principal Property of the Company
or any Subsidiary that is sold to any other person in connection with such lease
(a "Sale and Leaseback Transaction"), unless either (a) the Company or such
Subsidiary would be entitled, without equally and ratably securing the
Securities, to incur Indebtedness secured by a mortgage on the Principal
Property leased pursuant to clauses (i) through (xi) of Section 4.7 hereof, or
(b) an amount equal to the value of the Principal Property so leased is applied
to the retirement, within 120 days of the effective date of such arrangement, of
indebtedness for borrowed money incurred or assumed by the Company or a
Subsidiary which is recorded as Funded Debt as shown on the most recent
consolidated balance sheet of the Company and which in the case of such
Indebtedness of the Company, is not subordinate and junior in right of payment
to the prior payment of the Securities.
Section 4.9. Exempted Indebtedness.
Notwithstanding Section 4.7 and Section 4.8, the Company and any one
or more
20
Subsidiaries may, without securing the Securities, issue, assume, or guarantee
Secured Debt or enter into any Sale and Leaseback Transaction which would
otherwise be subject to the restrictions of Section 4.7 and Section 4.8,
provided that, after giving effect thereto, the aggregate amount of such Secured
Debt then outstanding (not including Secured Debt permitted under the exceptions
set forth in Section 4.7) and the Attributable Debt of Sale and Leaseback
Transactions (other than Sale and Leaseback Transactions in accordance with
clause (a) or (b) of Section 4.8) at such time does not exceed 15% of
Consolidated Net Assets.
ARTICLE V.
SUCCESSORS
Section 5.1. Limitation on Consolidation, Merger and Sale of Assets
The Company may not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of its assets to, another Person
unless (a) the successor or transferee is a corporation, partnership or trust
organized and validly existing under the laws of the United States of America,
any State or the District of Columbia, and such successor or transferee
expressly assumes the Company's obligations on outstanding Securities under a
supplemental indenture, (b) immediately after giving effect to the transaction,
no Default or Event of Default shall have occurred and be continuing, and (c)
the Company has delivered to the trustee an Officers' Certificate and an Opinion
of Counsel stating compliance with these provisions.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor person has been named
as the Company herein; provided, however, that the predecessor Company in the
case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest, if any, on the
Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
either Series, means any one of the following events:
(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 (unless
21
the entire amount of such payment is deposited by the Company with the
Trustee or with a Paying Agent prior to the expiration of such 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 warranty
of the Company in this Indenture, which default continues uncured 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 not less than 25% in 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 Company or any of its Significant Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is unable to pay its debts as the same become
due; or
(e) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case,
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of its
property, or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
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Section 6.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of either Series at
the time outstanding occurs and is continuing (other than an Event of Default
referred to in Section 6.1(d) or (e)), then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the outstanding
Securities of that Series may declare the principal amount of and accrued and
unpaid interest, if any, on all of the Securities of that Series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount) and accrued and unpaid interest, if any, shall become
immediately due and payable. If an Event of Default specified in Section 6.1(d)
or (e) shall occur, the principal amount (or specified amount) of and accrued
and unpaid interest, if any, on all outstanding 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 a declaration of acceleration with respect to
either 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 that Series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest, if any, on all Securities of that
Series,
(ii) the principal of any Securities of that 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,
(iii) to the extent that payment of such interest is lawful,
interest upon any overdue principal and overdue interest at the rate
or rates prescribed therefor in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(b) all Events of Default with respect to Securities of that Series,
other than the non-payment of the principal of Securities of that Series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
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Section 6.3. 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 any Security at the
Maturity thereof,
then, 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 interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal or any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of either Series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
Series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
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
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be
24
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
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 6.5. 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
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
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 6.6. 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 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
7.7; and
Second: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind (subject to any subordination provisions applicable to the
Securities of either Series), according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: To the Company.
25
Section 6.7. Limitation on Suits.
No Holder of any Security of either 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 that
Series;
(b) the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(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
(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 that Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 6.8. Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, premium, if any, and interest, if any, on,
such Security on the Stated Maturity or 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 6.9. 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, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all
26
rights and remedies of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
Section 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 6.12. Control by Holders.
Subject to Section 7.1(e), the Holders of a majority in principal
amount of the outstanding Securities of either 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,
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
Section 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
outstanding Securities of either Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to such
Series and its consequences, except a Default in the payment of the principal
of, premium, if any, or interest, if any, on any Security of such Series or,
27
if applicable, in respect of a covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Security of such
Series affected (provided, however, that the Holders of a majority in principal
amount of the outstanding Securities of either Series may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration). 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 6.14. Undertaking for Costs.
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 an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Company, 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 of either Series, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of or interest
on any Security on or after the Stated Maturity or Stated Maturities expressed
in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his or her
own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers'
Certificates or Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture; however, in the case
of any
28
such Officers' Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates and
Opinions of Counsel to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b)
of this Section.
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to
Securities of either Series 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 any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such Series.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to risk
its own funds or otherwise incur any financial liability in the performance
of any of its duties, 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 is not reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating agent shall
be entitled to the protections, immunities and standard of care as are set
forth in paragraphs (a), (b) and (c) of this Section with respect to the
Trustee.
29
Section 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely on and shall be protected in
acting or refraining from acting upon any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care. No
Depository shall be deemed an agent of the Trustee, and the Trustee shall
not be responsible for any act or omission by any Depository.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee may consult with counsel of its selection 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.
(f) 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 of Securities 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.
(g) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10
and 7.11.
30
Section 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect
to the Securities of either Series and if it is known to a Responsible Officer
of the Trustee, the Trustee shall mail to each Securityholder of the Securities
of that Series, notice of a Default or Event of Default within 90 days after it
occurs or, if later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default. Except in the case of a Default or Event of
Default in payment of principal of or interest on any Security of either Series,
the Trustee may withhold the notice if and so long as its corporate trust
committee or a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Securityholders of that
Series.
Section 7.6. Reports by Trustee to Holders.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
TIA at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the TIA, the Trustee shall, within sixty days after each April
1 following the date of this Indenture deliver to Holders a brief report, dated
as of April 1, which complies with the provisions of such Section 313(a).
A copy of each report at the time of its mailing to Securityholders of
either Series shall be filed with the SEC and each stock exchange on which the
Securities of that Series are listed. The Company shall promptly notify the
Trustee when Securities of either Series are listed on any stock exchange or of
any delisting thereof.
Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services as shall be agreed in writing between the Company
and the Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
Except as set forth in the next paragraph, the Company shall indemnify
each of the Trustee and any predecessor Trustee against any and all loss,
damage, claim, liability or expense (including the cost of defending itself)
incurred by it in the acceptance or performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall
31
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld. This indemnification shall apply to officers, directors,
employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(d) or (e) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign with respect to the Securities of either or
both Series by so notifying the Company. The Holders of a majority in principal
amount of the Securities of either Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may remove
the Trustee with respect to Securities of either or both Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities of the
applicable Series may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
32
If a successor Trustee with respect to the Securities of either or
both Series does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of at
least 10% in principal amount of the Securities of the applicable Series may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee with respect to the Securities of either or both Series
fails to comply with Section 7.10, any Securityholder of the applicable Series
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its succession
to each Securityholder of each such Series. Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Company's obligations under Section
7.7 hereof shall continue for the benefit of the retiring trustee with respect
to expenses and liabilities incurred by it prior to such replacement.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1), (2) and (5). The Trustee shall always have a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
(S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated.
33
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of further effect
(except as hereinafter provided in this Section 8.1), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other
than Securities that have been destroyed, lost or stolen and that have
been replaced or paid) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee
for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity within one
year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
or
(4) are deemed paid and discharged pursuant to Section 8.3, as
applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to
the Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
34
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.7, and, if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the
provisions of Sections 2.3, 2.6, 2.7, 8.1, 8.2 and 8.5 shall survive.
Section 8.2. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money deposited with
the Trustee pursuant to Section 8.1, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and
all money received by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in
trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with
or received by the Trustee.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and
principal received in respect of such obligations other than any payable by
or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or money held by it as
provided in Sections 8.3 or 8.4 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited
for the purpose for which such U.S. Government Obligations or money were
deposited or received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations held under this Indenture.
Section 8.3. Legal Defeasance of Securities of Either Series.
The Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Securities of either Series on the 91st day
after the date of the deposit referred to in subparagraph (d) hereof, and the
provisions of this Indenture, as it relates to such outstanding Securities of
such Series, shall no longer be in effect (and the Trustee, at the expense of
the Company, shall, at Company Request, execute proper instruments acknowledging
the same), except as to:
(a) the rights of Holders of Securities of such Series to receive,
from the trust funds described in subparagraph (d) hereof, payment of the
principal of and each installment of principal of and interest on the
outstanding Securities of such Series on the Stated Maturity of such
principal or installment of principal or interest on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and the
35
Securities of such Series;
(b) the provisions of Sections 2.3, 2.6, 2.7, 2.10, 8.2, 8.3 and 8.5;
and
(c) the rights, powers, trust and immunities of the Trustee and the
Company's obligations in connection therewith;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of such Securities cash in
Dollars (or such other money or currencies as shall then be legal tender in
the United States) and/or U.S. Government Obligations, which through the
payment of interest and principal in respect thereof, in accordance with
their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day before
the due date of any payment of money, an amount in cash, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge each installment of principal of and interest, if any, on
all the Securities of such Series on the dates such installments of
interest or principal are due;
(e) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company or any of its subsidiaries is a party or
by which it is bound;
(f) no Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) or insofar as Events of
Default pursuant to Section 6.1(d) or Section 6.1(e) are concerned, during
the period ending on the 91st day after such date;
(g) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect (i) that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (B) since
the date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel 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 and (ii) after the
91st day following the date of the deposit, the trust funds will not be
subject to the effect of any applicable Bankruptcy Laws;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate
36
stating that the deposit was not made by the Company with the intent of
preferring the Holders of the Securities of such Series over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising from such
deposit constituting an investment company (as defined in the Investment
Company Act of 1940, as amended), or such trust shall be qualified under
such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with.
Section 8.4. Covenant Defeasance.
On and after the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to comply with any term, provision
or condition set forth under Sections 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, and 5.1
(and the failure to comply with any such covenants shall not constitute a
Default or Event of Default under Section 6.1) with respect to the Securities
of such Series, provided that the following conditions shall have been
satisfied:
(a) With reference to this Section 8.4, the Company has deposited or
caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities
cash in Dollars (or such other money or currencies as shall then be legal
tender in the United States) and/or U.S. Government Obligations, which
through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay principal, premium, if any, and interest,
if any, on the dates such installments of interest or principal are due;
(b) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company or any of its subsidiaries is a party or
by which it is bound;
(c) No Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) or insofar as Events of
Default pursuant to Section 6.1(d) or Section 6.1(e) are concerned, during
the period ending on the 91st day after such date;
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel confirming that (i) Holders of the Securities of such Series will
not recognize income, gain
37
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 amounts,
in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred and (ii) after the 91st day
following the date of the deposit, the trust funds will not be subject to
the effect of any applicable Bankruptcy Laws;
(e) The Company shall have delivered to the Trustee an Officers'
Certificate stating the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such Series over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
(f) The Company shall have 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 by
this Section have been complied with.
Section 8.5. Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal and interest that
remains unclaimed for two years. After that, Securityholders entitled to the
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of either or both Series without the consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to make any change that would provide any additional rights or
benefits to the Securityholders or does not adversely affect the rights of
any Securityholder;
(d) to provide for the issuance of and establish the form and terms
and conditions of Securities of either or both Series as permitted by this
Indenture;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of either
or both 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; or
38
(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders.
The Company and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Securityholders of each such Series. Except as
provided in Section 6.13, the Holders of at least a majority in principal amount
of the outstanding Securities of each Series affected by such waiver by notice
to the Trustee (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such Series) may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to
such Series.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Company shall mail to the Holders of
Securities affected thereby a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to mail or publish such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each Securityholder affected, an amendment or
waiver may not:
(a) reduce the principal amount of Securities of such series whose
Holders must consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest
(including default interest) on any Security of such series;
(c) reduce the principal on, or change the Stated Maturity of, any
Security of such series ;
(d) waive a Default or Event of Default in the payment of the
principal of, or interest, if any, on, any Security of such series (except
a rescission of acceleration of the Securities of either Series by the
Holders of at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that resulted
from such acceleration);
39
(e) make the principal of, or interest, if any, on, any Security
payable in any currency other than that stated in the Security;
(f) make any change in Sections 6.8, 6.13 or 9.3; or
(g) waive a redemption payment with respect to any Security or change
any of the provisions with respect to the redemption of any Securities.
Section 9.4. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of either or both
Series shall be set forth in a supplemental indenture hereto that complies with
the TIA as then in effect.
Section 9.5. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder
of each Series affected by such amendment or waiver unless it is of the type
described in any of clauses (a) through (g) of Section 9.3. In that case, the
amendment or waiver shall bind each Holder of a Security who has consented to it
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
Section 9.6. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or
waiver on any Security of either Series thereafter authenticated. The Company
in exchange for Securities of that Series may issue, and the Trustee shall
authenticate upon request, new Securities of that Series that reflect the
amendment or waiver.
Section 9.7. Trustee Protected.
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 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights.
40
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed to be included in this
Indenture by the TIA, such required or deemed provision shall control.
Section 10.2. Notices.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail:
if to the Company:
Xxxxxxx Corporation
0000 00xx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
(000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
if to the Trustee:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Corporate Trust Services Division
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder of either Series
or any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or the other Series.
If a notice or communication is mailed or published in the manner
provided above, within the time prescribed, it is duly given, whether or not the
Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3. Communication by Holders with Other Holders.
Securityholders of either Series may communicate pursuant to TIA
(S) 312(b) with
41
other Securityholders of that Series or the other Series with respect to their
rights under this Indenture or the Securities of that Series or the other
Series. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA (S) 312(c).
Section 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA (S) 314(a)(4)) shall comply with the provisions of TIA
(S) 314(e) and shall include:
(a) a statement that the person making such certificate or opinion has
read such covenant or condition;
(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 such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of either or both Series. Any Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 10.7. Legal Holidays.
A "Legal Holiday" is any day that is not a Business Day. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that
42
is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 10.10. Governing Laws.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS OF THE STATE OF NEW YORK).
Section 10.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 10.13. Severability.
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 10.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
43
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
Xxxxxxx Corporation
By: ____________________________________
Name: ______________________________
Title: _____________________________
The First National Bank of Chicago, as Trustee
By: ____________________________________
Name: ______________________________
Title: _____________________________
1
XXXXXXX CORPORATION
ANNEX A-1
---------
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE THEREOF. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, 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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
XXXXXXX CORPORATION
____% Senior Note
Due 2008
No. R-1 $_____________
CUSIP No. _______________
Xxxxxxx Corporation, a Delaware corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received promises to pay to
CEDE & CO. , or registered assigns,
the principal sum of _________________ MILLION DOLLARS
on _______________, 2008 and to pay interest thereon from _______________, 1998,
or the most recent interest payment date to which interest has been paid or
provided for, as the case may be,
2
payable on __________ and __________ of each year, commencing _______________,
1999, at the rate of ____% per annum, until the principal hereof is paid or made
available for payment, and (to the extent that the payment of such interest is
permitted by law) to pay interest at the rate per annum borne by this Security
on any overdue principal and on any overdue installment of interest until paid.
The interest so payable, and punctually paid or duly provided for, on any
interest payment date will be paid to the person in whose name this Security (or
one or more predecessor Securities) is registered at the close of business on
the regular record date for such interest, which shall be the __________ or
__________ (whether or not a Business Day), as the case may be, next preceding
such interest payment date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such regular
record date and may either be paid to the person in whose name this Security (or
one or more predecessor Securities) is registered at the close of business on a
special record date for the payment of such defaulted interest to be fixed by
the Company, notice thereof shall be given to Trustee and the Holders not less
than 15 days prior to such special record date, or be paid at any time in any
other lawful manner. Interest on the Securities shall be computed on the basis
of a 360-day year of twelve 30-day months.
Principal of and interest on the Securities will be payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, the transfer of the
Securities will be registrable, the Securities may be presented for exchange,
and notices and demands to or upon the Company in respect of this Security and
the Indenture may be served, at the office or agency of the Company maintained
for such purpose (which initially will be the ______________________________,
Attention: Corporate Trust Services); provided that, unless all of the
outstanding Securities are Global Securities, the Company will at all times
maintain an office or agency for such purposes in the Borough of Manhattan, The
City of New York; and provided, further, that, except as provided in the next
sentence, payment of interest may, at the option of the Company, be made by
check mailed to the address of the person entitled thereto. If this Security is
a Global Security, the interest payable on this Security will be paid to Cede &
Co., the nominee of the Depositary, or its registered assigns as the registered
owner of this Security, by wire transfer of immediately available funds on each
of the applicable interest payment dates.
Reference is hereby made to the further provisions of this Security
which further provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
3
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Date: _______________, ____
XXXXXXX CORPORATION
By: __________________________________ By: __________________________________
Name: Name:
Title: Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the ____% Senior Notes Due
2008 described in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
By:
Authorized Signatory
4
XXXXXXX CORPORATION
____% Senior Note Due 2008
1. General.
This Security is one of a duly authorized series of securities of the
Company issued and to be issued under an Indenture, dated as of _______________,
1998, as amended, modified or supplemented from time to time (the "Indenture"),
between the Company and The First National Bank of Chicago, as trustee (the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $____________ (herein called the "Securities").
All terms used but not defined in this Security shall have the meanings assigned
to them in the Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal of and interest on this Security at
the times, places and rate, and in the coin or currency, herein prescribed.
2. Indenture.
The terms of the Securities include those stated in the Indenture. The
Securities are subject to all such terms, and the Securityholders are referred
to the Indenture and the TIA for a statement of them.
3. Sinking Fund.
The Securities are not subject to any sinking fund, and the Securities are
not subject to redemption or repurchase by the Company at the option of the
Holders.
5
4. Optional Redemption.
The Securities will be redeemable, as a whole or in part, at the option of
the Company, at any time or from time to time, on at least 30 days, but not more
than 60 days prior notice mailed to the registered address of each holder of
Securities, at a redemption price equal to the greater of (i) 100% of the
principal amount of the Securities to be redeemed or (ii) the sum of the present
values of the Remaining Scheduled Payments (as defined below) discounted to the
redemption date, on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus ______ basis
points, plus, in the case of each of clause (i) and (ii) above, accrued interest
to the date of redemption.
"Comparable Treasury Issue" means the fixed rate United States Treasury
security selected by an Independent Investment Banker that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities. "Independent Investment Banker" means one of
the Reference Treasury Dealers appointed by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and ask prices for the Comparable Treasury Issue
(expressed in each case as percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest or lowest of such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of the bid and ask
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time on
the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Xxxxxxx Xxxxx Xxxxxx, Xxxxx
Securities Inc., First Chicago Capital Markets, Inc. and Xxxxxx Brothers, and
their respective successors; provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to each Security to be
redeemed, the remaining scheduled payments of the principal thereof and interest
thereon that would be due after the related redemption date but for such
redemption; provided, however, that if such redemption date
6
is not an interest payment date with respect to such Security, then for purposes
of computing Remaining Scheduled Payments, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest
accrued thereon to such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity (computed as of the
second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion thereof called for redemption. On or before the
redemption date, the Company shall deposit with a paying agent (or the Trustee)
money sufficient to pay the redemption price of and accrued interest on the
Securities to be redeemed on such date. If less than all of the Securities are
to be redeemed, the Securities to be redeemed shall be selected by the Trustee
by such method as the Trustee shall deem fair and appropriate.
5. Denominations; Transfer; Exchange.
This Security is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer, or the exchange for an equal principal amount,
of this Security is registrable with the Registrar upon surrender of this
Security for registration of transfer at the office or agency of the Registrar.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may, subject to certain exceptions, require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
6. Persons Deemed Owners.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Security is registered as the owner thereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
7. Unclaimed Money.
The Trustee and any Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
7
8. Defeasance Prior to Maturity.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Securities or (ii) certain covenants and Events of Default
with respect to the Securities, in each case upon compliance with certain
conditions set forth therein.
9. Amendment; Supplement; Waiver.
Subject to certain limitations described in the Indenture, the Indenture
permits the Company and the Trustee to enter into a supplemental indenture with
the written consent of the Holders of at least a majority in principal amount of
the outstanding Securities (including consents obtained in connection with a
tender offer or exchange offer for the Securities), for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Securityholders. Subject to certain limitations described in
the Indenture, the Holders of at least a majority in principal amount of the
outstanding Securities by notice to the Trustee (including consents obtained in
connection with a tender offer or exchange offer for the Securities) may waive
compliance by the Company with any provision of the Indenture or the Securities.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
10. Restrictive Covenants.
The Indenture imposes certain limitations on the Company's and its
Subsidiaries' ability to create or incur certain Liens on certain of their
respective properties or assets and to enter into certain sale and lease-back
transactions and on the Company's ability to engage in mergers or consolidations
or the conveyance, transfer or lease of all or substantially all of its
properties and assets. These limitations are subject to a number of important
qualifications and exceptions and reference is made to the Indenture for a
description thereof.
11. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of the
Securities may be declared (or, in certain cases, shall ipso facto become) due
and payable in the manner and with the effect provided in the Indenture.
8
12. Proceedings.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding, judicial
or otherwise, with respect to the Indenture or for the appointment of a receiver
or trustee, or for any other remedy under the Indenture, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities and unless also the Holders of at least
25% in principal amount of the Securities at the time outstanding shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceedings as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of Securities at the time
outstanding a direction inconsistent with such request, and shall have failed to
institute such proceeding, within 60 days. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of the principal hereof or any interest hereon on or after the
respective due dates expressed herein.
13. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may deal with the Company or an Affiliate of the Company with the same rights it
would have if it were not Trustee.
14. No Recourse Against Others.
A past, present or future director, officer, employee, shareholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under this Security or the
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities.
15. Governing Law.
The internal laws of the State of New York shall govern the Indenture and
the Securities.
9
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Security, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________ Custodian _________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act _____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
this Security and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________, Attorney,
to transfer this Security on the books of the Trustee, with full power of
substitution in the premises.
Dated:
10
Notice: The signature(s) on this Assignment must
correspond with the name(s) as written upon the
face of this Security in every particular, without
alteration or enlargement or any change
whatsoever.
11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Security, or exchanges
of a part of another Global Security or Definitive Security for an interest in
this Global Security, have been made:
Principal Amount Signature of
Amount of Amount of of this Global authorized
decrease in increase in Security officer of
Principal Amount Principal Amount following such Trustee or
Date of of this Global of this Global decrease Security
Exchange Security Security (or increase) Custodian
---------- ---------------- ---------------- ----------------- ------------
12
XXXXXXX CORPORATION
ANNEX A-2
---------
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE THEREOF. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, 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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
XXXXXXX CORPORATION
____% Senior Note
Due 2028
No. R-1 $_____________
CUSIP No. _______________
Xxxxxxx Corporation, a Delaware corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received promises to pay to
CEDE & CO. , or registered assigns,
13
the principal sum of __________________________ MILLION DOLLARS
on _______________, 2008 and to pay interest thereon from _______________, 1998,
or the most recent interest payment date to which interest has been paid or
provided for, as the case may be, payable on __________ and __________ of each
year, commencing _______________, 1999, at the rate of ____% per annum, until
the principal hereof is paid or made available for payment, and (to the extent
that the payment of such interest is permitted by law) to pay interest at the
rate per annum borne by this Security on any overdue principal and on any
overdue installment of interest until paid. The interest so payable, and
punctually paid or duly provided for, on any interest payment date will be paid
to the person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on the regular record date
for such interest, which shall be the __________ or __________ (whether or not a
Business Day), as the case may be, next preceding such interest payment date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such regular record date and may either be
paid to the person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Company, notice
thereof shall be given to Trustee and the Holders not less than 15 days prior to
such special record date, or be paid at any time in any other lawful manner.
Interest on the Securities shall be computed on the basis of a 360-day year of
twelve 30-day months.
Principal of and interest on the Securities will be payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, the transfer of the
Securities will be registrable, the Securities may be presented for exchange,
and notices and demands to or upon the Company in respect of this Security and
the Indenture may be served, at the office or agency of the Company maintained
for such purpose (which initially will be the ______________________________,
Attention: Corporate Trust Services); provided that, unless all of the
outstanding Securities are Global Securities, the Company will at all times
maintain an office or agency for such purposes in the Borough of Manhattan, The
City of New York; and provided, further, that, except as provided in the next
sentence, payment of interest may, at the option of the Company, be made by
check mailed to the address of the person entitled thereto. If this Security is
a Global Security, the interest payable on this Security will be paid to Cede &
Co., the nominee of the Depositary, or its registered assigns as the registered
owner of this Security, by wire transfer of immediately available funds on each
of the applicable interest payment dates.
Reference is hereby made to the further provisions of this Security
which further provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
14
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Date: _______________, ____
XXXXXXX CORPORATION
By: __________________________________ By: __________________________________
Name: Name:
Title: Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the ____% Senior Notes Due
2008 described in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
By:
Authorized Signatory
15
XXXXXXX CORPORATION
____% Senior Note Due 2028
1. General.
This Security is one of a duly authorized series of securities of the
Company issued and to be issued under an Indenture, dated as of _______________,
1998, as amended, modified or supplemented from time to time (the "Indenture"),
between the Company and The First National Bank of Chicago, as trustee (the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $____________ (herein called the "Securities").
All terms used but not defined in this Security shall have the meanings assigned
to them in the Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal of and interest on this Security at
the times, places and rate, and in the coin or currency, herein prescribed.
2. Indenture.
The terms of the Securities include those stated in the Indenture. The
Securities are subject to all such terms, and the Securityholders are referred
to the Indenture and the TIA for a statement of them.
3. Sinking Fund.
The Securities are not subject to any sinking fund, and the Securities are
not subject to redemption or repurchase by the Company at the option of the
Holders.
16
4. Optional Redemption.
The Securities will be redeemable, as a whole or in part, at the option of
the Company, at any time or from time to time, on at least 30 days, but not more
than 60 days prior notice mailed to the registered address of each holder of
Securities, at a redemption price equal to the greater of (i) 100% of the
principal amount of the Securities to be redeemed or (ii) the sum of the present
values of the Remaining Scheduled Payments (as defined below) discounted to the
redemption date, on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus ______ basis
points, plus, in the case of each of clause (i) and (ii) above, accrued interest
to the date of redemption.
"Comparable Treasury Issue" means the fixed rate United States Treasury
security selected by an Independent Investment Banker that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities. "Independent Investment Banker" means one of
the Reference Treasury Dealers appointed by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and ask prices for the Comparable Treasury Issue
(expressed in each case as percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest or lowest of such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of the bid and ask
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time on
the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Xxxxxxx Xxxxx Xxxxxx Inc.,
Xxxxx Securities Inc., First Chicago Capital Markets, Inc., and Xxxxxx Brothers,
Inc., and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to each Security to be
redeemed, the remaining scheduled payments of the principal thereof and interest
thereon that would be due after the related redemption date but for such
redemption; provided, however, that if such redemption date
17
is not an interest payment date with respect to such Security, then for purposes
of computing Remaining Scheduled Payments, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest
accrued thereon to such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity (computed as of the
second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion thereof called for redemption. On or before the
redemption date, the Company shall deposit with a paying agent (or the Trustee)
money sufficient to pay the redemption price of and accrued interest on the
Securities to be redeemed on such date. If less than all of the Securities are
to be redeemed, the Securities to be redeemed shall be selected by the Trustee
by such method as the Trustee shall deem fair and appropriate.
5. Denominations; Transfer; Exchange.
This Security is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer, or the exchange for an equal principal amount,
of this Security is registrable with the Registrar upon surrender of this
Security for registration of transfer at the office or agency of the Registrar.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may, subject to certain exceptions, require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
6. Persons Deemed Owners.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Security is registered as the owner thereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
7. Unclaimed Money.
The Trustee and any Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
18
8. Defeasance Prior to Maturity.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Securities or (ii) certain covenants and Events of Default
with respect to the Securities, in each case upon compliance with certain
conditions set forth therein.
9. Amendment; Supplement; Waiver.
Subject to certain limitations described in the Indenture, the Indenture
permits the Company and the Trustee to enter into a supplemental indenture with
the written consent of the Holders of at least a majority in principal amount of
the outstanding Securities (including consents obtained in connection with a
tender offer or exchange offer for the Securities), for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Securityholders. Subject to certain limitations described in
the Indenture, the Holders of at least a majority in principal amount of the
outstanding Securities by notice to the Trustee (including consents obtained in
connection with a tender offer or exchange offer for the Securities) may waive
compliance by the Company with any provision of the Indenture or the Securities.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
10. Restrictive Covenants.
The Indenture imposes certain limitations on the Company's and its
Subsidiaries' ability to create or incur certain Liens on certain of their
respective properties or assets and to enter into certain sale and lease-back
transactions and on the Company's ability to engage in mergers or consolidations
or the conveyance, transfer or lease of all or substantially all of its
properties and assets. These limitations are subject to a number of important
qualifications and exceptions and reference is made to the Indenture for a
description thereof.
11. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of the
Securities may be declared (or, in certain cases, shall ipso facto become) due
and payable in the manner and with the effect provided in the Indenture.
19
12. Proceedings.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding, judicial
or otherwise, with respect to the Indenture or for the appointment of a receiver
or trustee, or for any other remedy under the Indenture, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities and unless also the Holders of at least
25% in principal amount of the Securities at the time outstanding shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceedings as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of Securities at the time
outstanding a direction inconsistent with such request, and shall have failed to
institute such proceeding, within 60 days. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of the principal hereof or any interest hereon on or after the
respective due dates expressed herein.
13. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may deal with the Company or an Affiliate of the Company with the same rights it
would have if it were not Trustee.
14. No Recourse Against Others.
A past, present or future director, officer, employee, shareholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under this Security or the
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities.
15. Governing Law.
The internal laws of the State of New York shall govern the Indenture and
the Securities.
20
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Security, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________ Custodian _________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act _____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
this Security and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________, Attorney,
to transfer this Security on the books of the Trustee, with full power of
substitution in the premises.
Dated:
21
Notice: The signature(s) on this Assignment must
correspond with the name(s) as written upon the
face of this Security in every particular, without
alteration or enlargement or any change
whatsoever.
22
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Security, or exchanges
of a part of another Global Security or Definitive Security for an interest in
this Global Security, have been made:
Principal Amount Signature of
Amount of Amount of of this Global authorized
decrease in increase in Security officer of
Principal Amount Principal Amount following such Trustee or
Date of of this Global of this Global decrease Security
Exchange Security Security (or increase) Custodian
---------- ---------------- ---------------- ----------------- ------------
23
