[Revised--10/31/97]
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HEFTEL BROADCASTING CORPORATION
and
THE BANK OF NEW YORK
Trustee
SENIOR INDENTURE
Dated as of [ ], 199[ ]
Providing for Issuance of Securities in Series
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TABLE OF CONTENTS
PAGE
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Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . . . . .
Agreements of the Parties . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . .
Act . . . . . . . . . . . . . . . . . . . . . . . . . .
Affiliate . . . . . . . . . . . . . . . . . . . . . . .
Authenticating Agent . . . . . . . . . . . . . . . . .
Board of Directors . . . . . . . . . . . . . . . . . .
Board Resolution . . . . . . . . . . . . . . . . . . .
Business Day . . . . . . . . . . . . . . . . . . . . .
Commission . . . . . . . . . . . . . . . . . . . . . .
Company . . . . . . . . . . . . . . . . . . . . . . . .
Company Request, Company Order and Company Consent. . .
Corporate Trust Office . . . . . . . . . . . . . . . .
Defaulted Interest . . . . . . . . . . . . . . . . . .
Depositary . . . . . . . . . . . . . . . . . . . . . .
Event of Default . . . . . . . . . . . . . . . . . . .
Global Security . . . . . . . . . . . . . . . . . . . .
Holder . . . . . . . . . . . . . . . . . . . . . . . .
Indenture, this Indenture . . . . . . . . . . . . . . .
Interest . . . . . . . . . . . . . . . . . . . . . . .
Interest Payment Date . . . . . . . . . . . . . . . . .
Maturity . . . . . . . . . . . . . . . . . . . . . . .
Officers' Certificate . . . . . . . . . . . . . . . . .
Opinion of Counsel . . . . . . . . . . . . . . . . . .
Original Issue Discount Security . . . . . . . . . . .
Outstanding . . . . . . . . . . . . . . . . . . . . . .
Paying Agent . . . . . . . . . . . . . . . . . . . . .
Person . . . . . . . . . . . . . . . . . . . . . . . .
Place of Payment . . . . . . . . . . . . . . . . . . .
Predecessor Securities . . . . . . . . . . . . . . . .
Redemption Date . . . . . . . . . . . . . . . . . . . .
Redemption Price . . . . . . . . . . . . . . . . . . .
Regular Record Date . . . . . . . . . . . . . . . . . .
Repayment Date . . . . . . . . . . . . . . . . . . . .
Contents, p. 2
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Repayment Price . . . . . . . . . . . . . . . .
Responsible Officer . . . . . . . . . . . . . .
Security or Securities . . . . . . . . . . . .
Security Register . . . . . . . . . . . . . . .
Security Registrar . . . . . . . . . . . . . .
Securityholder . . . . . . . . . . . . . . . .
Special Record Date . . . . . . . . . . . . . .
Stated Maturity . . . . . . . . . . . . . . . .
Trust Indenture Act or TIA . . . . . . . . . .
Trustee . . . . . . . . . . . . . . . . . . . .
U.S. Government Obligations . . . . . . . . . .
Vice President . . . . . . . . . . . . . . . .
Voting Stock . . . . . . . . . . . . . . . . .
Section 102. Compliance Certificates and Opinions . . . . .
Section 103. Form of Documents Delivered to Trustee . . . .
Section 104. Acts of Securityholders . . . . . . . . . . . .
Section 105. Notices, etc., to Trustee and Company . . . . .
Section 106. Notices to Securityholders; Waiver . . . . . .
Section 107. Conflict with Trust Indenture Act . . . . . . .
Section 108. Effect of Headings and Table of Contents . . .
Section 109. Successors and Assigns . . . . . . . . . . . .
Section 110. Separability Clause . . . . . . . . . . . . . .
Section 111. Benefits of Indenture . . . . . . . . . . . . .
Section 112. Governing Law . . . . . . . . . . . . . . . . .
Section 113. Counterparts . . . . . . . . . . . . . . . . .
Section 114. Judgment Currency . . . . . . . . . . . . . . .
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally . . . . . . . . . . . . . . . .
Section 202. Forms of Securities . . . . . . . . . . . . . .
Section 203. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . .
Section 204. Securities Issuable in the Form of a Global .
Security . . . . . . . . . . . . . . . . . . .
Contents, p. 3
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ARTICLE THREE
THE SECURITIES
Section 301. General Title; General Limitations; Issuable
in Series; Terms of Particular Series . . . . .
Section 302. Denominations. . . . . . . . . . . . . . . . . .
Section 303. Execution, Authentication and Delivery and
Dating . . . . . . . . . . . . . . . . . . . . .
Section 304. Temporary Securities . . . . . . . . . . . . . .
Section 305. Registration, Transfer and Exchange. . . . . . .
Section 306. Mutilated, Destroyed, Lost and Stolen. . . . . .
Securities . . . . . . . . . . . . . . . . . . .
Section 307. Payment of Interest; Interest Rights Preserved .
Section 308. Persons Deemed Owners. . . . . . . . . . . . . .
Section 309. Cancellation . . . . . . . . . . . . . . . . . .
Section 310. Computation of Interest. . . . . . . . . . . . .
Section 311. Medium-Term Securities . . . . . . . . . . . . .
Section 312. CUSIP Numbers. . . . . . . . . . . . . . . . . .
Section 313. Global Securities. . . . . . . . . . . . . . . .
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE; UNCLAIMED MONEYS
Section 401. Applicability of Article . . . . . . . . . . . .
Section 402. Satisfaction and Discharge of Indenture;
Defeasance . . . . . . . . . . . . . . . . . . .
Section 403. Conditions of Defeasance . . . . . . . . . . . .
Section 404. Application of Trust Money . . . . . . . . . . .
Section 405. Repayment to Company . . . . . . . . . . . . . .
Section 406. Indemnity for U.S. Government Obligations. . . .
Section 407. Reinstatement. . . . . . . . . . . . . . . . . .
ARTICLE FIVE
REMEDIES
Section 501. Events of Default. . . . . . . . . . . . . . . .
Section 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . .
Contents, p. 4
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Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . .
Section 504. Trustee May File Proofs of Claim . . . . . . .
Section 505. Trustee May Enforce Claims Without Possession
of Securities. . . . . . . . . . . . . . . . .
Section 506. Application of Money Collected . . . . . . . .
Section 507. Limitation on Suits. . . . . . . . . . . . . .
Section 508. Unconditional Right of Securityholders to
Receive Principal, Premium and Interest . . .
Section 509. Restoration of Rights and Remedies . . . . . .
Section 510. Rights and Remedies Cumulative . . . . . . . .
Section 511. Delay or Omission Not Waiver . . . . . . . . .
Section 512. Control by Securityholders . . . . . . . . . .
Section 513. Waiver of Past Defaults. . . . . . . . . . . .
Section 514. Undertaking for Costs. . . . . . . . . . . . .
Section 515. Waiver of Stay or Extension Laws . . . . . . .
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities. . . . . .
Section 602. Notice of Defaults . . . . . . . . . . . . . .
Section 603. Certain Rights of Trustee. . . . . . . . . . .
Section 604. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . .
Section 605. May Hold Securities. . . . . . . . . . . . . .
Section 606. Money Held in Trust. . . . . . . . . . . . . .
Section 607. Compensation and Reimbursement . . . . . . . .
Section 608. Disqualification; Conflicting Interests. . . .
Section 609. Corporate Trustee Required; Eligibility. . . .
Section 610. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . .
Section 611. Acceptance of Appointment by Successor . . . .
Contents, p. 5
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Section 612. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . .
Section 613. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . .
Section 614. Appointment of Authenticating Agent . . . . . .
ARTICLE SEVEN
SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses
of Securityholders . . . . . . . . . . . . . .
Section 702. Preservation of Information; Communications to
Securityholders . . . . . . . . . . . . . . . .
Section 703. Reports by Trustee . . . . . . . . . . . . . .
Section 704. Reports by Company . . . . . . . . . . . . . .
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, etc., only on Certain
Terms . . . . . . . . . . . . . . . . . . . . .
Section 802. Successor Corporation Substituted . . . . . . .
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of
Securityholders . . . . . . . . . . . . . . . .
Section 902. Supplemental Indentures with Consent of
Securityholders . . . . . . . . . . . . . . . .
Section 903. Execution of Supplemental Indentures . . . . .
Section 904. Effect of Supplemental Indentures . . . . . . .
Section 905. Conformity with Trust Indenture Act . . . . . .
Section 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . .
Contents, p. 6
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ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest . .
Section 1002. Maintenance of Office or Agency. . . . . . . .
Section 1003. Money for Security Payments to Be Held in
Trust. . . . . . . . . . . . . . . . . . . . .
Section 1004. Statement as to Compliance . . . . . . . . . .
Section 1005. Corporate Existence. . . . . . . . . . . . . .
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article . . . . . . . . . . .
Section 1102. Election to Redeem; Notice to Trustee. . . . .
Section 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . .
Section 1104. Notice of Redemption . . . . . . . . . . . . .
Section 1105. Deposit of Redemption Price. . . . . . . . . .
Section 1106. Securities Payable on Redemption Date. . . . .
Section 1107. Securities Redeemed in Part. . . . . . . . . .
Section 1108. Provisions with Respect to any Sinking Funds .
THIS SENIOR INDENTURE (the "Indenture") between HEFTEL BROADCASTING
CORPORATION, a Delaware corporation (hereinafter called the "Company")
having its principal office at 000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, and THE BANK OF NEW YORK, a New York banking corporation,
trustee (hereinafter called the "Trustee"), is made and entered into as of
this [ ] day of [ ] 1997.
Recitals of the Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its Securities, notes, bonds or other
evidences of indebtedness, to be issued in one or more fully registered series.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Agreements of the Parties
To set forth or to provide for the establishment of the terms and
conditions upon which the Securities are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Securities
by the Holders thereof, it is mutually covenanted and agreed as follows, for the
equal and proportionate benefit of all Holders of the Securities or of a series
thereof, as the case may be:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. DEFINITIONS. For all purposes of this Indenture and of
any indenture supplemental hereto, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation;
(4) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this instrument as originally executed. The
words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) "including" and words of similar import shall be deemed to be
followed by "without limitation".
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Securityholder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
to authenticate Securities under Section 614.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee. 3
"Business Day" means each day which is neither a Saturday, Sunday
or other day on which banking institutions in the pertinent Place or Places
of Payment are authorized or required by law or executive order to be closed.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President or a Vice President, and by
its Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
in New York, New York at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof
is located at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
except that with respect to the presentation of Securities for payment or for
registration of
2
transfer and exchange, such term shall mean the office or the agency of the
Trustee in said city at which at any particular time its corporate agency
business shall be conducted, which office at the date hereof is located at
000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company
pursuant to either Section 204 or 301, with respect to Securities of any
series issuable or issued as a Global Security, The Depository Trust Company,
New York, New York, or any successor thereto registered as a clearing agency
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation.
"Event of Default" has the meaning specified in Article Five.
"Global Security" means with respect to any series of Securities
issued hereunder, a Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction, all in accordance with this Indenture and an
indenture supplemental hereto, if any, or Board Resolution and pursuant to a
Company Request, which shall be registered in the name of the Depositary or
its nominee and which shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Securities
of such series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates on
which principal is due, and interest rate or method of determining interest.
"Holder", when used with respect to any Security, means a
Securityholder.
"Indenture" or "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of any installment of interest on those
Securities.
"Maturity", when used with respect to any Securities, means the
date on which the principal of any such Security becomes due and payable as
therein or herein provided, whether on a Repayment Date, at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary
or an Assistant Secretary of the Company, and delivered to the Trustee.
Wherever this Indenture requires that an Officers' Certificate be signed also
by an engineer or an accountant or other expert, such engineer, accountant or
other expert (except as otherwise expressly provided in this Indenture) may
be in the employ of the Company, and shall be acceptable to the Trustee.
3
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of
or of counsel to the Company. Such counsel shall be acceptable to the
Trustee, whose acceptance shall not be unreasonably withheld.
"Original Issue Discount Security" means (i) any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof, and (ii)
any other Security deemed an Original Issue Discount Security for United
States Federal income tax purposes.
"Outstanding", when used with respect to Securities or Securities
of any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except: 6
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent in trust for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, or which shall have been paid pursuant to the terms of Section
306 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a
person in whose hands such Security is a legal, valid and binding
obligation of the Company).
In determining whether the Holders of the requisite principal amount of such
Securities Outstanding have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) the principal amount of
any Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as
of the date of the taking of such action upon a declaration of acceleration
of the Maturity thereof and (ii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding. In
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer assigned to the corporate trust
department of the Trustee knows to be owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right to act as owner with
respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on
behalf of the Company.
4
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means with respect to any series of Securities
issued hereunder the city or political subdivision so designated with respect
to the series of Securities in question in accordance with the provisions of
Section 301.
"Predecessor Securities" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price specified in the Security at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Security on
any Interest Payment Date means the date specified in such Security as the
Regular Record Date.
"Repayment Date", when used with respect to any Security to be
repaid, means the date fixed for such repayment pursuant to such Security.
"Repayment Price", when used with respect to any Security to be
repaid, means the price at which it is to be repaid pursuant to such Security.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer or trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case
may be, of any series authenticated and delivered from time to time under
this Indenture.
"Security Register" shall have the meaning specified in Section 305.
"Security Registrar" means the Person who keeps the Security
Register specified in Section 305.
"Securityholder" means a Person in whose name a Security is
registered in the Security Register.
5
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 307) means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended by the Trust Indenture Reform Act of 1990, as in force at
the date as of which this instrument was executed except as provided in
Section 905.
"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 and include each Person who is then a Trustee hereunder.
If at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof.
"Vice President" when used with respect to the Company or the
Trustee means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president", including,
without limitation, an assistant vice president.
"Voting Stock", as applied to the stock of any corporation, means
stock of any class or classes (however designated) having by the terms
thereof ordinary voting power to elect a majority of the members of the board
of directors (or other governing body) of such corporation other than stock
having such power only by reason of the happening of a contingency.
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such Counsel all
such conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the written
statement required by Section 1004) shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
6
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to the other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. ACTS OF SECURITYHOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders or Securityholders of
any series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by an
agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly
required, to the Company. If any Securities are denominated in coin or
currency other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of
Securities have taken any action as herein described, the principal amount of
such Securities shall be deemed to be that amount of United States dollars
that could be obtained for such principal amount on the basis of the spot
rate of exchange into United States dollars for the currency in which such
Securities are denominated (as evidenced to the Trustee by an Officers'
Certificate) as of the date the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee as provided in the
immediately preceding sentence. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Securityholders signing such instrument or
instruments.
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Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by an officer of a corporation or
a member of a partnership, on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other action,
the Company may, at its option, by Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Holders of record at the close of business on the record date shall be deemed
to be Holders for the purposes of determining whether Holders of the
requisite proportion of Securities Outstanding have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Securities Outstanding shall
be computed as of the record date; provided that no such authorization,
agreement or consent by the Holders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind the
Holder of every Security issued upon the transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done or suffered to be
done by the Trustee or the Company in reliance thereon whether or not
notation of such action is made upon such Security.
Section 105. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of
Securityholders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (except as provided in Section
501(4) or, in the case of a request for repayment, as specified in the
Security carrying the right to repayment) if in writing and mailed, first-
class postage prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the
Company.
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Section 106. NOTICES TO SECURITYHOLDERS; WAIVER. Where this
Indenture or any Security provides for notice to Securityholders of any
event, such notice shall be sufficiently given (unless otherwise herein or in
such Security expressly provided) if in writing and mailed, first-class
postage prepaid, to each Securityholder affected by such event, at his
address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of
such notice. In any case where notice to Securityholders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Securityholder shall affect the sufficiency of such
notice with respect to other Securityholders. Where this Indenture or any
Security provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Securityholders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or otherwise, it shall be impractical to
mail notice of any event to any Securityholder when such notice is required
to be given pursuant to any provision of this Indenture, then any method of
notification as shall be satisfactory to the Trustee and the Company shall be
deemed to be a sufficient giving of such notice.
Section 107. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with the duties imposed by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act through the
operation of Section 318(c) thereof, such imposed duties shall control.
Section 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
Section 110. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 111. BENEFITS OF INDENTURE. Nothing in this Indenture or
in any Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any Authenticating Agent
or Paying Agent, the Security Registrar and the Holders of Securities (or
such of them as may be affected thereby), any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. GOVERNING LAW. This Indenture shall be construed in
accordance with and governed by the laws of the State of New York.
Section 113. COUNTERPARTS. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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Section 114. JUDGMENT CURRENCY. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a)
if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the principal of, or premium or interest,
if any, on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in the City of New York the
Required Currency with the Judgment Currency on the New York Banking Day (as
defined below) preceding that on which final unappealable judgment is given
and (b) its obligations under this Indenture to make payments in the Required
Currency (i)shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any
other sum due under this Indenture. For purposes of the foregoing, "New York
Banking Day" means any day except a Saturday, Sunday or a legal holiday in
the City of New York or a day on which banking institutions in the City of
New York are authorized or required by law or executive order to close.
ARTICLE TWO
SECURITY FORMS
Section 201. FORMS GENERALLY. The Securities shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed
thereon, as may be required to comply with applicable laws or regulations or
with the rules of any securities exchange, or as may, consistently herewith,
be determined by the officers executing such Securities, as evidenced by
their execution of the Securities. Any portion of the text of any Security
may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities, subject, with respect to the Securities of any series, to the
rules of any securities exchange on which such Securities are listed.
Section 202. FORMS OF SECURITIES. Each Security shall be in one
of the forms approved from time to time by or pursuant to a Board Resolution,
or established in one or more indentures supplemental hereto. Prior to the
delivery of a Security to the Trustee for authentication in any form approved
by or pursuant to a Board Resolution, the Company shall deliver to the
Trustee the Board Resolution by or pursuant to which such form of Security
has been approved, which Board Resolution shall have attached thereto a true
and correct copy of the form of Security which has been approved thereby or,
if a Board Resolution authorizes a specific officer or officers to approve a
form of Security, a certificate of such officer or officers approving the
form of Security attached thereto. Any form of Security approved by or
pursuant to a Board Resolution must be acceptable as to form to the Trustee,
such acceptance to be evidenced by the Trustee's authentication
10
of Securities in that form or a certificate signed by a Responsible Officer
of the Trustee and delivered to the Company.
Section 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
form of Trustee's Certificate of Authentication for any Security issued
pursuant to this Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee,
Dated:_________________
By:________________________________
Authorized Signatory
Section 204. SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Sections 202 and 301 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee or its agent shall, in accordance with Section 303 and the Company
Request delivered to the Trustee or its agent thereunder, authenticate and
deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify
in a Company Request, (ii) shall be registered in the name of the Depositary
for such Global Security or Securities or its nominee, (iii) shall be
delivered by the Trustee or its agent to the Depositary or pursuant to the
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
the individual Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
(b) Notwithstanding any other provisions of this Section 204 or of
Section 305, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Security expressly permit such Global Security to be
exchanged in whole or in part for individual Securities, a Global Security
may be transferred, in whole but not in part and in the manner provided in
Section 305, only to a nominee of the Depositary for such Global Security, or
to the Depositary, or a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time the Depositary for the Securities for such
series ceases to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute,
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and the Trustee or its agent, upon receipt of a Company Request for the
authentication and delivery of individual Securities of such series in
exchange for such Global Security, will authenticate and deliver, individual
Securities of such series of like tenor and terms in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for
such Global Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Request for the
authentication and delivery of individual Securities of such series in
exchange in whole or in part for such Global Security, will authenticate and
deliver individual Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal
amount of such Global Security or Securities representing such series or
portion thereof in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 202 and 301
with respect to Securities issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such Global
Security in exchange in whole or in part for individual Securities of such
series of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depositary. Thereupon the Company shall
execute, and the Trustee or its agent shall authenticate and deliver, without
service charge, (1) to each Person specified by such Depositary a new
Security or Securities of the same series of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and (2) to such Depositary a new Global Security of like
tenor and terms and in an authorized denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to the Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Securities in definitive registered form
in authorized denominations. Upon the exchange of the entire principal
amount of a Global Security for individual Securities, such Global Security
shall be canceled by the Trustee or its agent. Except as provided in the
preceding paragraph, Securities issued in exchange for a Global Security
pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or the Security Registrar. The Trustee or the Security
Registrar shall deliver such Securities to the Persons in whose names such
Securities are so registered.
ARTICLE THREE
THE SECURITIES
Section 301. GENERAL TITLE; GENERAL LIMITATIONS; ISSUABLE IN
SERIES; TERMS OF PARTICULAR SERIES. The aggregate principal amount of
Securities which may be authenticated and delivered and Outstanding under
this Indenture is not limited.
The Securities may be issued in one or more series up to an aggregate
principal amount of Securities as from time to time may be authorized by the
Board of Directors. All Securities of each series under this Indenture shall in
all respects be equally and ratably entitled to
12
the benefits hereof with respect to such series without preference, priority
or distinction on account of the actual time of the authentication and
delivery or Stated Maturity of the Securities of such series.
Each series of Securities shall be created either by or pursuant to a
Board Resolution or by or pursuant to an indenture supplemental hereto. The
Securities of each such series may bear such date or dates, be payable at such
place or places, have such Stated Maturity or Maturities, be issuable at such
premium over or discount from their face value, bear interest at such rate or
rates (which may be fixed or floating), from such date or dates, payable in such
installments and on such dates and at such place or places to the Holders of
Securities registered as such on such Regular Record Dates, or may bear no
interest, and may be redeemable or repayable at such Redemption Price or Prices
or Repayment Price or Prices, as the case may be, whether at the option of the
Holder or otherwise, and upon such terms, all as shall be provided for in or
pursuant to the Board Resolution or in or pursuant to the supplemental indenture
creating that series. There may also be established in or pursuant to a Board
Resolution or in or pursuant to a supplemental indenture prior to the issuance
of Securities of each such series, provision for:
(1) the exchange or conversion of the Securities of that series, at
the option of the Holders thereof, for or into new Securities of a
different series or other securities or other property of the Company or
another Person, including shares of capital stock of the Company or any
subsidiary of the Company or of any other Person or securities directly or
indirectly convertible into or exchangeable for any such shares;
(2) a sinking or purchase fund or other analogous obligation;
(3) if other than U.S. dollars, the currency or currencies or units
based on or related to currencies (including European Currency Units) in
which the Securities of such series shall be denominated and in which
payments of principal of, and any premium and interest on, such Securities
shall or may be payable;
(4) if the principal of (and premium, if any) or interest, if any, on
the Securities of such series are to be payable, at the election of the
Company or a holder thereof, in a currency or currencies or units based on
or related to currencies (including European Currency Units) other than
that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(5) if the amount of payments of principal of (and premium, if any)
or interest, if any, on the Securities of such series may be determined
with reference to an index based on (i) a currency or currencies or units
based on or related to currencies (including European Currency Units) other
than that in which the Securities are stated to be payable, (ii) changes in
the price of one or more other securities or groups or indexes of
securities or (iii) changes in the prices of one or more commodities or
groups or indexes of commodities, or any combination of the foregoing, the
manner in which such amounts shall be determined;
(6) if the aggregate principal amount of the Securities of that
series is to be limited, such limitations, and the maturity date of the
principal amount of the Securities of that series (which may be fixed or
extendible), and the rate or rates (which may be fixed or floating) per
annum at which the Securities of that series will bear interest, if any, or
the
13
method of determining such rate or rates, and the payment dates and record
dates relating to such interest payments;
(7) the exchange of Securities of that series, at the option of the
Holders thereof, for other Securities of the same series of the same
aggregate principal amount of a different authorized kind or different
authorized denomination or denominations, or both;
(8) the appointment by the Trustee of an Authenticating Agent in one
or more places other than the location of the office of the Trustee with
power to act on behalf of the Trustee and subject to its direction in the
authentication and delivery of the Securities of any one or more series in
connection with such transactions as shall be specified in the provisions
of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series;
(9) the percentage of their principal amount at which such Securities
will be issued, and the portion of the principal amount of Securities of
the series, if other than the total principal amount thereof, which shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable in bankruptcy pursuant to Section 504;
(10) any Event of Default with respect to the Securities of such
series, if not set forth herein and any additions, deletions or other
changes to the Events of Default set forth herein that shall be applicable
to the Securities of such series (including a provision making any Event of
Default set forth herein inapplicable to the Securities of that series);
(11) any covenant solely for the benefit of the Securities of such
series and any additions, deletions or other changes to the provisions of
Article Ten or any definitions relating to such Article that shall be
applicable to the Securities of such series (including a provision making
any Section of such Article inapplicable to the Securities of such series);
(12) the applicability of Section 402(b) of this Indenture to the
Securities of such series;
(13) if the Securities of the series shall be issued in whole or in
part in the form of a Global Security or Global Securities, the terms and
conditions, if any, upon which such Global Security or Global Securities
may be exchanged in whole or in part for other individual Securities; and
the Depositary for such Global Security or Global Securities (if other than
the Depositary specified in Section 101 hereof);
(14) the subordination of the Securities of such series to any other
indebtedness of the Company, including without limitation, the Securities
of any other series; and
(15) any other terms of the series, which shall not be inconsistent
with the provisions of this Indenture, all upon such terms as may be
determined in or pursuant to a Board Resolution or in or pursuant to a
supplemental indenture with respect to such series. All Securities of the
same series shall be substantially identical in tenor and effect, except as
to denomination.
The form of the Securities of each series shall be established
pursuant to the provisions of this Indenture in or pursuant to the Board
Resolution or in or pursuant to the
14
supplemental indenture creating such series. The Securities of each series
shall be distinguished from the Securities of each other series in such
manner, reasonably satisfactory to the Trustee, as the Board of Directors may
determine.
Unless otherwise provided with respect to Securities of a
particular series, the Securities of any series may only be issuable in
registered form, without coupons.
Any terms or provisions in respect of the Securities of any series
issued under this Indenture may be determined pursuant to this Section by
providing in a Board Resolution or supplemental indenture for the method by
which such terms or provisions shall be determined.
Section 302. DENOMINATIONS. The Securities of each series shall
be issuable in such denominations and currency as shall be provided in the
provisions of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series. In the absence of any such
provisions with respect to the Securities of any series, the Securities of
that series shall be issuable only in fully registered form in denominations
of $1,000 and any integral multiple thereof.
Section 303. EXECUTION, AUTHENTICATION AND DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its President, one of its Vice Presidents or its Treasurer under
its corporate seal reproduced thereon and attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company
to the Trustee for authentication; and the Trustee shall, upon Company Order,
authenticate and make available for delivery such Securities as in this
Indenture provided and not otherwise.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, in addition to any Officers' Certificate and Opinion of
Counsel required to be furnished to the Trustee pursuant to Section 102, and
the Board Resolution and any certificate relating to the issuance of the
series of Securities required to be furnished pursuant to Section 202, an
Opinion of Counsel stating that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority hereunder
for the Trustee to authenticate and deliver such Securities;
(2) the form and terms (or in connection with the issuance of medium-
term Securities under Section 311, the manner of determining the terms) of
such Securities have been established in conformity with the provisions of
this Indenture;
(3) all laws and requirements with respect to the execution and
delivery by the Company of such Securities have been complied with, the
Company has the corporate power to issue such Securities and such
Securities have been duly authorized and delivered by the
15
Company and, assuming due authentication and delivery by the Trustee,
constitute legal, valid and binding obligations of the Company enforceable
in accordance with their terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, fraudulent conveyance,
moratorium or other laws and legal principles affecting creditors' rights
generally from time to time in effect and to general equitable principles,
whether applied in an action at law or in equity) and entitled to the
benefits of this Indenture, equally and ratably with all other Securities,
if any, of such series Outstanding; and
(4) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of Securities
created by an indenture supplemental hereto, also stating that all laws and
requirements with respect to the form and execution by the Company of the
supplemental indenture with respect to that series of Securities have been
complied with, the Company has corporate power to execute and deliver any
such supplemental indenture and has taken all necessary corporate action for
those purposes and any such supplemental indenture has been executed and
delivered and constitutes the legal, valid and binding obligation of the
Company enforceable in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent
conveyance, moratorium or other laws and legal principles affecting
creditors' rights generally from time to time in effect and to general
equitable principles, whether applied in an action at law or in equity).
The Trustee shall not be required to authenticate such Securities
if the issue thereof will adversely affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any series,
all Securities shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
Section 304. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute, and, upon
receipt of the documents required by Section 303, together with a Company
Order, the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment, without
charge to the Holder; and upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities
16
of such series of authorized denominations and of like tenor and terms.
Until so exchanged the temporary Securities of such series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 305. REGISTRATION, TRANSFER AND EXCHANGE. The Company
shall keep or cause to be kept a register (herein sometimes referred to as
the "Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of
Securities, or of Securities of a particular series, and for transfers of
Securities or of Securities of such series. Any such register shall be in
written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times the information
contained in such register or registers shall be available for inspection by
the Trustee at the office or agency to be maintained by the Company as
provided in Section 1002.
Subject to Section 204, upon surrender for transfer of any Security
of any series at the office or agency of the Company in a Place of Payment,
the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and
of like tenor and terms.
Subject to Section 204, at the option of the Holder, Securities of
any series may be exchanged for other Securities of such series of any
authorized denominations, of a like aggregate principal amount and Stated
Maturity and of like tenor and terms, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the
Securityholder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise provided in the Security to be transferred or
exchanged, no service charge shall be made on any Securityholder for any
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Security) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities, other than exchanges pursuant to Section
304 or 906 not involving any transfer.
The Company shall not be required (i) to issue, transfer or
exchange any Security of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption
of Securities of such series selected for redemption under Section 1103 and
ending at the close of business on the date of such mailing, or (ii) to
transfer or exchange any Security so selected for redemption in whole or in
part, except for the portion of such Security not so selected for redemption.
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None of the Company, the Trustee, any agent of the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company initially appoints the Trustee to act as Security
Registrar for the Securities on its behalf. The Company may at any time and
from time to time authorize any Person to act as Security Registrar in place
of the Trustee with respect to any series of Securities issued under this
Indenture.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If
(i) any mutilated Security is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, and (ii) there is delivered to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security, a new Security of like tenor, series, Stated Maturity and
principal amount, bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided with respect to such Security pursuant to Section
301, interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of his having
been such Holder; and, except as hereinafter provided, such Defaulted
Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or Clause (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names any such Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to the Holder of each such Security at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
If any installment of interest the Stated Maturity of which is on
or prior to the Redemption Date for any Security called for redemption
pursuant to Article Eleven is not paid or duly provided for on or prior to
the Redemption Date in accordance with the foregoing provisions of this
Section, such interest shall be payable as part of the Redemption Price of
such Securities.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu
of any other Security shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
Section 308. PERSONS DEEMED OWNERS. The Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name
any Security is registered in the Security Register as the owner of such
Security for the purpose of receiving payment of principal of (and premium,
if any), and (subject to Section 307) interest on, such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section 309. CANCELLATION. All Securities surrendered for
payment, redemption, transfer, conversion or exchange or credit against a
sinking fund shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and, if not already canceled, shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities
19
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Security shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. The Trustee shall return
all canceled Securities to the Company.
Section 310. COMPUTATION OF INTEREST. Unless otherwise provided
as contemplated in Section 301, interest on the Securities shall be
calculated on the basis of a 360-day year of twelve 30-day months.
Section 311. MEDIUM-TERM SECURITIES. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Company to deliver to
the Trustee an Officers' Certificate, Board Resolution, supplemental
indenture, Opinion of Counsel or Company Request otherwise required pursuant
to Sections 202, 301 and 303 at or prior to the time of authentication of
each Security of such series if such documents are delivered to the Trustee
or its agent at or prior to the authentication upon original issuance of the
first Security of such series to be issued; provided that any subsequent
request by the Company to the Trustee to authenticate Securities of such
series upon original issuance shall constitute a representation and warranty
by the Company that as of the date of such request, the statements made in
the Officers' Certificate delivered pursuant to Section 102 shall be true and
correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board
Resolution delivered by the Company to the Trustee in the circumstances set
forth in the preceding paragraph may provide that Securities which are the
subject thereof will be authenticated and delivered by the Trustee or its
agent on original issue from time to time upon the telephonic or written
order of persons designated in such Officers' Certificate, Board Resolution
or supplemental indenture (any such telephonic instructions to be confirmed
promptly in writing by such persons) and that such persons are authorized to
determine, consistent with such Officers' Certificate, supplemental indenture
or Board Resolution, such terms and conditions of said Securities as are
specified in such Officers' Certificate, supplemental indenture or Board
Resolution.
Section 312. CUSIP NUMBERS. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
Section 313. GLOBAL SECURITIES. (a) Each Global Security
authenticated under this Indenture shall be registered in the name of the
Depositary designated by the Company for such Global Security or a nominee
thereof and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single Security
for all purposes of this Indenture.
(b) Notwithstanding any other provision of this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such
20
Global Security or a nominee thereof unless (i) such Depositary (A) has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (B) has ceased to be a clearing agency registered
as such under the Exchange Act or announces an intention permanently to cease
business or does in fact do so or (ii) there shall have occurred and be
continuing an Event of Default with respect to such Global Security.
(c) If any Global Security is to be exchanged for other Securities
or canceled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Trustee, as Security Registrar, for exchange
or cancellation, as provided in this Article Three. If any Global Security is
to be exchanged for other Securities or canceled in part, or if another
Security is to be exchanged in whole or in part for a beneficial interest in
any Global Security, in each case, as provided in Section 305, then either
(i) such Global Security shall be so surrendered for exchange or
cancellation, as provided in this Article Three or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal to the principal amount of
such other Security to be so exchanged for a beneficial interest therein, as
the case may be, by means of an appropriate adjustment made on the records of
the Trustee, as Security Registrar, whereupon the Trustee, in accordance with
the Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any
such surrender or adjustment of a Global Security, the Trustee shall, subject
to Section 305 and as otherwise provided in this Article Three, authenticate
and deliver any Securities issuable in exchange for such Global Security (or
any portion thereof) to or upon the order of, and registered in such names as
may be directed by, the Depositary or its authorized representative. Upon the
request of the Trustee in connection with the occurrence of any of the events
specified in the preceding paragraph, the Company shall promptly make
available to the Trustee a reasonable supply of Securities that are not in
the form of Global Securities. The Trustee shall be entitled to rely upon any
order, direction or request of the Depositary or its authorized
representative which is given or made pursuant to this Article Three if such
order, direction or request is given or made in accordance with the
Applicable Procedures.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Article Three or otherwise, shall
be authenticated and delivered in the form of, and shall be, a registered
Global Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof, in
which case such Registered Security shall be authenticated and delivered in
definitive, fully registered form, without interest coupons.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
the Indenture and the Registered Securities, and owners of beneficial
interests in a Global Security shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such owner's beneficial interest in a
Global Security will be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Depositary or its
nominee or its Agent Members and such owners of beneficial interests in a
Global Security will not be considered the owners or holders thereof.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
Section 401. APPLICABILITY OF ARTICLE. If, pursuant to Section 301,
provision is made for the defeasance of Securities of a series and if the
Securities of such series are denominated and payable only in Dollars (except as
provided pursuant to Section 301), then the provisions of this Article Four
relating to defeasance of Securities shall be applicable except as otherwise
specified pursuant to Section 301 for Securities of such series. Defeasance
provisions, if any, for Securities denominated in a Foreign Currency may be
specified pursuant to Section 301.
Section 402. SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE.
(a) If at any time (i) the Company shall have delivered to the Trustee for
cancellation all Securities of any series theretofore authenticated and
delivered (other than (1) any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 306 and (2) Securities for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company as provided in Section
405) or (ii) all Securities of such series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee as trust funds the entire amount in the Currency in which such
Securities are denominated (except as otherwise provided pursuant to Section
301) sufficient (in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee) without consideration of any reinvestment and after payment of all
taxes or other charges and assessments in respect thereof payable by the
Trustee, to pay at maturity or upon redemption all Securities of such series not
theretofore delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due on such date of maturity or
redemption date, as the case may be, no default with respect to the Securities
has occurred and is continuing on the date of such deposit, such deposit does
not result in a breach or violation of, or constitute a default under, the
Indenture or any other agreement or instrument to which the Company is a party
and the Company delivers an Officers' Certificate and an Opinion of Counsel each
stating that such conditions have been complied with and if in either case the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of such
Securities herein expressly provided for and rights to receive payments of
principal of, and premium, if any, and interest on, such Securities) with
respect to the Securities of such series, and the Trustee, on demand of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture.
(b) Subject to Sections 402(c), 403 and 407, the Company at any time
may terminate, with respect to Securities of a particular series, (i) all its
obligations under the Securities of such series and this Indenture with respect
to the Securities of such series ("legal defeasance option") or (ii) its
obligations with respect to the Securities of such series under clause (3) of
Section 801 ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option, payment of the
Securities of the defeased series may not be accelerated because of an Event of
Default.
22
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clause (a) above and the exercise of the legal
defeasance option in clause (b) above, the Company's obligations in Sections
305, 306, 405, 406, 407, 607, 608, 701 and 1002 shall survive until the
Securities of the defeased series have been paid in full. Thereafter, the
Company's obligations in Sections 607, 405 and 406 shall survive.
Section 403. CONDITIONS OF DEFEASANCE. The Company may exercise its
legal defeasance option or its covenant defeasance option with respect to
Securities of a particular series only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Securities of such series to maturity
or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent public accountants expressing
their opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay the principal, premium, if any,
and interest when due on all the Securities of such series to maturity or
redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 501(5) or (6) with respect to the
Company occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(7) in the event of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from the Internal Revenue Service a ruling, or (ii)
since the date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
23
(8) in the event of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities of such series as contemplated
by this Article Four have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities of such series at a
future date in accordance with Article Four.
Section 404. APPLICATION OF TRUST MONEY. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article Four. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on,
the Securities of the defeased series.
Section 405. REPAYMENT TO COMPANY. The Trustee and any paying agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to such money must look to the Company
for payment as general creditors and all liability of the Trustee or such paying
agent with respect to such money shall thereupon cease.
Section 406. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Company
shall pay and shall indemnify the Trustee and the Holders against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
Section 407. REINSTATEMENT. If the Trustee or any paying agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article Four by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article Four until
such time as the Trustee or any paying agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article Four.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT. "Event of Default", wherever used
herein, means with respect to any series of Securities any one of the following
events (whatever the reason for such
24
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), unless such event is either inapplicable to a particular
series or it is specifically deleted or modified in the supplemental
indenture creating such series of Securities or in the form of Security for
such series:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of such series; or
(4) default in the performance of any covenant or warranty of the
Company in this Indenture in respect of the Securities of such series
(other than a covenant or warranty in respect of the Securities of such
series a default in the performance of which or the breach of which is
elsewhere in this Section specifically dealt with), all of such covenants
and warranties in the Indenture which are not expressly stated to be for
the benefit of a particular series of Securities being deemed in respect of
the Securities of all series for this purpose, and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities 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
(5) the entry of an order for relief against the Company under the
Federal Bankruptcy Code by a court having jurisdiction in the premises or a
decree or order by a court having jurisdiction in the premises adjudging
the Company a bankrupt or insolvent under any other applicable Federal or
State law, or the entry of a decree or order approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under the Federal Bankruptcy Code or any other
applicable Federal or State law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company
or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(6) the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security
for such series.
25
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If
an Event of Default described in paragraph (1), (2), (3), (4) or (7) (if the
Event of Default under paragraph (4) or (7) is with respect to less than all
series of Securities then Outstanding) of Section 501 occurs and is continuing
with respect to any series, then and in each and every such case, unless the
principal of all the Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding hereunder
(each such series acting as a separate class), by notice in writing to the
Company (and to the Trustee if given by Holders), may declare the principal
amount (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all the Securities of such series then Outstanding and
all accrued interest thereon to be due and payable immediately, and upon any
such declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Securities of such series contained to the
contrary notwithstanding. If an Event of Default described in paragraph (4) or
(7) (if the Event of Default under paragraph (4) or (7) is with respect to all
series of Securities then Outstanding), or (5) or (6) of Section 501 occurs and
is continuing, then and in each and every such case, unless the principal of all
the Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by notice in
writing to the Company (and to the Trustee if given by Holders), may declare the
principal amount (or, if any Securities are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms thereof)
of all the Securities then Outstanding and all accrued interest thereon, if any,
to be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, anything in this Indenture or
in the Securities contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been made
with respect to the Securities of any series and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on the Securities of
such series,
(B) the principal of (and premium, if any, on) any Securities of
such series which have become due otherwise than by such declaration
of acceleration, and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series, to the extent
that payment of such interest is lawful,
(C) interest upon overdue installments of interest at the rate or
rates prescribed therefor by the terms of the Securities of such
series to the extent that payment of such interest is lawful, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 607;
and
26
(2) all Events of Default with respect to such series of Securities,
other than the nonpayment of the principal of the Securities of such series
which have become due solely by such acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of any series,
and any such default continues for any period of grace provided with respect to
the Securities of such series, the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holder of any such Security (or the Holders of any
such series in the case of Clause (3) above), the whole amount then due and
payable on any such Security (or on the Securities of any such series in the
case of Clause (3) above) for principal (and premium, if any) and interest, with
interest, to the extent that payment of such interest shall be legally
enforceable, upon the overdue principal (and premium, if any) and upon overdue
installments of interest, at such rate or rates as may be prescribed therefor by
the terms of any such Security (or of Securities of any such series in the case
of Clause (3) above); 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 and all other amounts due the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of such series and
collect the money adjudged or decreed 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 series of Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of 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
27
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 proceedings or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary and
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 all other amounts due the Trustee
under Section 607) and of the Securityholders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Securityholder to make such payment to the Trustee and in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or 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 Securityholder in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series 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 agent and
counsel, be for the ratable benefit of the Holders of the Securities of the
series in respect of which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED. Any money collected by
the Trustee with respect to a series of Securities pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities of such
series and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607.
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of that series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and premium, if any) and
interest, respectively.
28
THIRD: To the Company.
Section 507. LIMITATION ON SUITS. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to Securities of such series;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series 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 Holders of Securities of such series, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Securities of such
series.
Section 508. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provisions in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date, as the case may be) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Securityholder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, then and in every such case the Company, the Trustee and the
Securityholders shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Securityholders shall
continue as though no such proceeding had been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders 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
29
in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Securityholders, as the case may be.
Section 512. CONTROL BY SECURITYHOLDERS. The Holders of a majority
in aggregate principal amount of the Outstanding Securities of any series shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series, provided
that
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default not theretofore cured
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any sinking
or purchase fund or analogous obligation with respect to the Securities of
such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. UNDERTAKING FOR COSTS. 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 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, against any party
30
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of
any series to which the suit relates, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption
or repayment, on or after the Redemption Date or Repayment Date).
Section 515. WAIVER OF STAY OR EXTENSION LAWS. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except during
the continuance of an Event of Default with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
31
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any 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; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. NOTICE OF DEFAULTS. Within 90 days after the occurrence
of any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Securityholders of such series, as their names and
addresses appear in the Security Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series or
in the payment of any sinking or purchase fund installment or analogous
obligation with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Securityholders of such series; and provided,
further, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series no such notice to
Securityholders of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default", with
respect to Securities of any series, means any event which is, or after notice
or lapse of time or both would become, an Event of Default with respect to
Securities of such series.
Section 603. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided
in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
32
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 605. MAY HOLD SECURITIES. The Trustee, any Paying Agent, the
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
Section 606. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 607. COMPENSATION AND REIMBURSEMENT. The Company agrees
(1) to pay to the Trustee from time to time such compensation for all
services rendered by it hereunder as the parties shall agree from time to
time (which compensation
33
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if any) or interest
on particular Securities.
Section 608. DISQUALIFICATION; CONFLICTING INTERESTS. The Trustee
for the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period of
time provided for therein. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act with respect to
the Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310(b) the Securities of every
other series issued under this Indenture (i) every series of securities issued
under the Indenture dated as of __________ __, 199_, between Heftel Broadcasting
Corporation and _________________, (ii) every series of securities issued under
the Indenture dated as of _________ __, 199_, between Heftel Broadcasting
Corporation and ____________. Nothing herein shall prevent the Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
Section 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at
all times be a Trustee hereunder with respect to each series of Securities,
which shall be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee with respect to any series of Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
34
(b) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal
amount of the Outstanding Securities of that series, delivered to the Trustee
and to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving
of such notice of removal, the removed Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 608(a) with respect to any series of
Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security of that series
for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, with respect to the series, or in the case of Clause (4), with
respect to all series, or (ii) subject to Section 514, any Securityholder who
has been a bona fide Holder of a Security of such series for at least 6
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to the series, or, in the
case of Xxxxxx (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur
in the office of the Trustee with respect to any series of Securities for any
cause, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee for that series of Securities. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to such series of Securities shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee with respect
to such series and supersede the successor Trustee appointed by the Company
with respect to such series. If no successor Trustee with respect to such
series shall have been so appointed by the Company or the Securityholders of
such series
35
and accepted appointment in the manner hereinafter provided, any
Securityholder who has been a bona fide Holder of a Security of that series
for at least 6 months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to any series and each appointment of a
successor Trustee with respect to any series by mailing written notice of
such event by first-class mail, postage prepaid, to the Holders of Securities
of that series as their names and addresses appear in the Security Register.
Each notice shall include the name of the successor Trustee and the address
of its principal Corporate Trust Office.
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver
to the Company and to the predecessor Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the predecessor
Trustee shall become effective with respect to any series as to which it is
resigning or being removed as Trustee, and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the predecessor Trustee with respect to any such
series; but, on request of the Company or the successor Trustee, such
predecessor Trustee shall, upon payment of its reasonable charges, if any,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the predecessor Trustee, and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such predecessor Trustee hereunder with respect to all or any such
series, subject nevertheless to its lien, if any, provided for in Section
607. Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the predecessor Trustee and each successor Trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Securities of any
series as to which the predecessor Trustee is not being succeeded shall
continue to be vested in the predecessor Trustee, and shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee.
No successor Trustee with respect to any series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to that series under
this Article.
Section 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or
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filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within 3 months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities (as defined in
Subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such 3-month period and valid as against
the Company and its other creditors, except any such reduction resulting
from the receipt or disposition of any property described in paragraph (2)
of this Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed by
or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such 3-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in
cash, securities or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such 3-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such 3-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in Subsection (c) of this Section
would occur within 3 months; or
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(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such 3-month period for property held as
security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for the purpose
of repaying or refunding any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Securityholders and the holders of other indenture
securities in such manner that the Trustee, the Securityholders and the
holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, the same
percentage of their respective claims, figured before crediting to the claim
of the Trustee anything on account of the receipt by it from the Company of
the funds and property in such special account and before crediting to the
respective claims of the Trustee and the Securityholders and the holders of
other indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law, but after crediting
thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities,
or other property, but shall not include any such distribution with respect
to the secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceedings for reorganization is pending shall
have jurisdiction (i) to apportion between the Trustee and the
Securityholders and the holders of other indenture securities in accordance
with the provisions of this paragraph, the funds and property held in such
special account and proceeds thereof, or (ii) in lieu of such apportionment,
in whole or in part, to give to the provisions of this paragraph due
consideration in determining the fairness of the distributions to be made to
the Trustee and the Securityholders and the holders of other indenture
securities with respect to their respective claims, in which event it shall
not be necessary to liquidate or to appraise the value of any securities or
other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning
of such 3-month period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such 3-month period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
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(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such 3-month
period; and
(ii) such receipt of property or reduction of claim occurred
within 3 months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Securityholders at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self liquidating paper as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable.
(2) The term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account.
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(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within 7 days after delivery
of the goods or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the Securities.
Section 614. APPOINTMENT OF AUTHENTICATING AGENT. At any time
when any of the Securities remain Outstanding the Trustee, with the approval
of the Company, may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof or pursuant
to Section 306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, authorized under such laws to
act as an Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and, if other than the Company itself, subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and, if other than the Company, to the Company.
The Trustee may at any time terminate
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the agency of an Authenticating Agent by giving written notice thereof to
such Authenticating Agent and, if other than the Company, to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee, with the
approval of the Company, may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent (other than
an Authenticating Agent appointed at the request of the Company from time to
time) reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
---------------------------------------
As Authenticating Agent
Date: By:
---------------- ---------------------------------------
Authorized Signatory
ARTICLE SEVEN
SECURITYHOLDERS' LISTS AND REPORTS BY
TRUSTEE AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS. The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, in each year in such form as the Trustee may reasonably require, a
list of the names and addresses of the Holders of Securities of such series
as of such date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
41
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
SECURITYHOLDERS. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Securities received by
the Trustee in its capacity as Security Registrar. The Trustee may destroy
any list furnished to it as provided in Section 701 upon receipt of a new
list so furnished.
(b) If 3 or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to
the Trustee reasonable proof that each such applicant has owned a Security of
such series for a period of at least 6 months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the
Holders of all Securities with respect to their rights under this Indenture
or under such Securities and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the
Trustee shall, within 5 Business Days after the receipt of such application,
at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 702(a), and as to the approximate cost
of mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or to all
Securityholders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
702(a), a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of
the reasonable expenses of mailing, unless, within 5 days after such tender,
the Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the Holders of Securities of such series or all
Securityholders, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more
of such objections, the Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained have been met and shall
enter an order so declaring, the Trustee shall mail copies of such material
to all Securityholders of such series or all Securityholders, as the case may
be, with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by
42
reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 702(b),
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(b).
Section 703. REPORTS BY TRUSTEE. (a) The term "reporting date"
as used in this Section means May 15 of each year. Within 60 days after the
reporting date in each year, beginning in 1998, the Trustee shall transmit by
mail to all Securityholders, as their names and addresses appear in the
Security Register, a brief report dated as of such reporting date with
respect to any of the following events which may have occurred during the 12
months preceding the date of such report (but if no such event has occurred
within such period no report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of Securities of any series, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount of the
Securities of such series outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in a manner described in Section 613(b)(2), (3), (4)
or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit by mail to all Securityholders, as
their names and addresses appear in the Security Register, a brief report
with respect to the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made by
the Trustee (as such) since the date of the last report transmitted pursuant
to Subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge,
43
prior to that of the Securities of any series, on property or funds held or
collected by it as Trustee, and which it has not previously reported pursuant
to this Subsection, except that the Trustee shall not be required (but may
elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Securities Outstanding
of such series at such time, such report to be transmitted within 90 days
after such time.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, and also with the Commission.
The Company will notify the Trustee when the Securities are listed on any
stock exchange.
Section 704. REPORTS BY COMPANY. The Company will
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Securityholders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United States
of America or any State or the District of Columbia, and shall
44
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any)
and interest on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
Section 802. SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer 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 corporation had been named as the Company herein. In the event of
any such conveyance or transfer, the Company as the predecessor corporation
may be dissolved, wound up or liquidated at any time thereafter.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. Without the consent of the Holders of any Securities, the
Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to add to the covenants of the Company, or to surrender any right
or power herein conferred upon the Company, for the benefit of the Holders
of the Securities of any or all series (and if such covenants or the
surrender of such right or power are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being
included or such surrenders are expressly being made solely for the benefit
of one or more specified series); or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; or
45
(4) to add to this Indenture such provisions as may be expressly
permitted by the TIA, excluding, however, the provisions referred to in
Section 316(a)(2) of the TIA as in effect at the date as of which this
instrument was executed or any corresponding provision in any similar
federal statute hereafter enacted; or
(5) to establish any form of Security, as provided in Article Two,
and to provide for the issuance of any series of Securities as provided in
Article Three and to set forth the terms thereof, and/or to add to the
rights of the Holders of the Securities of any series; or
(6) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one or
more series of Securities and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to Section 611; or
(7) to add any additional Events of Default in respect of the
Securities of any or all series (and if such additional Events of Default
are to be in respect of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the benefit
of one or more specified series); or
(8) to provide for the issuance of Securities in coupon as well as
fully registered form.
No supplemental indenture for the purposes identified in Clauses
(2), (3), (5) or (7) above may be entered into if to do so would adversely
affect the interest of the Holders of Securities of any series.
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series affected by
such supplemental indenture or indentures, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Securities of each
such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Maturity of the principal of, or the Stated Maturity
of any premium on, or any installment of interest on, any Security, or
reduce the principal amount thereof or the interest or any premium thereon,
or change the method of computing the amount of principal thereof or
interest thereon on any date or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Maturity or the Stated Maturity, as the
case may be, thereof (or, in the case of redemption or repayment, on or
after the Redemption Date or the Repayment Date, as the case may be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain
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provisions of this Indenture or certain defaults hereunder and their
consequences, provided for in this Indenture; or
(3) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not (except to the
extent required in the case of a supplemental indenture entered into under
Section 901(4) or 901(6)) be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby to the extent provided therein.
Section 905. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.
Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
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ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. With
respect to each series of Securities, the Company will duly and punctually
pay the principal of (and premium, if any) and interest on such Securities in
accordance with their terms and this Indenture, and will duly comply with all
the other terms, agreements and conditions contained in, or made in the
Indenture for the benefit of, the Securities of such series.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain an office or agency in each Place of Payment where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change
in the location, of such office or agency. If at any time the Company shall
fail to maintain such office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the principal Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Section 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST. If
the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on, any of the Securities of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal
of (and premium, if any) or interest on, any Securities of such series,
deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal (and premium, if
any) or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for
any series of Securities to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities of such series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any such
payment of principal (and premium, if any) or interest on the Securities of
such series; and
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(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series of
Securities or for any other purpose, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company
or such Paying Agent in respect of each and every series of Securities as
to which it seeks to discharge this Indenture or, if for any other purpose,
all sums so held in trust by the Company in respect of all Securities, such
sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease. The Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company mail to the Holders of the
Securities as to which the money to be repaid was held in trust, as their
names and addresses appear in the Security Register, a notice that such
moneys remain unclaimed and that, after a date specified in the notice, which
shall not be less than 30 days from the date on which the notice was first
mailed to the Holders of the Securities as to which the money to be repaid
was held in trust, any unclaimed balance of such moneys then remaining will
be paid to the Company free of the trust formerly impressed upon it.
The Company initially authorizes the Trustee to act as Paying Agent
for the Securities on its behalf. The Company may at any time and from time
to time authorize one or more Persons to act as Paying Agent in addition to
or in place of the Trustee with respect to any series of Securities issued
under this Indenture.
Section 1004. STATEMENT AS TO COMPLIANCE. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
written statement signed by the principal executive officer, principal
financial officer or principal accounting officer of the Company, stating that
(1) a review of the activities of the Company during such year and of
the Company's performance under this Indenture and under the terms of the
Securities has been made under his supervision; and
(2) to the best of his knowledge, based on such review, the Company
has complied with all conditions and covenants under this Indenture through
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof.
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For purposes of this Section 1004, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant
to the terms of this Indenture.
Section 1005. CORPORATE EXISTENCE. Subject to Article Eight the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE. The Company may reserve
the right to redeem and pay before Stated Maturity all or any part of the
Securities of any series, either by optional redemption, sinking or purchase
fund or analogous obligation or otherwise, by provision therefor in the form
of Security for such series established and approved pursuant to Section 202
and on such terms as are specified in such form or in the Board Resolution or
indenture supplemental hereto with respect to Securities of such series as
provided in Section 301. Redemption of Securities of any series shall be
made in accordance with the terms of such Securities and, to the extent that
this Article does not conflict with such terms, the succeeding Sections of
this Article. 71
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election
of the Company to redeem any Securities redeemable at the election of the
Company shall be evidenced by, or made pursuant to authority granted by, a
Board Resolution. In case of any redemption at the election of the Company
of any Securities of any series, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the
terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or
condition.
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of like tenor and terms of any series are to
be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
include provision for the selection for redemption of portions of the
principal of Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series. Unless
otherwise provided in the terms of a particular series of Securities, the
portions of the principal of Securities so selected for partial redemption
shall be equal to the minimum authorized denomination of the Securities of
such series, or an integral multiple thereof, and the principal amount which
remains outstanding shall not be less than the minimum authorized
denomination for Securities of such series. If less than all the
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Securities of unlike tenor and terms of a series are to be redeemed, the
particular Securities to be redeemed shall be selected by the Company.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal of such Security which has been or is to be
redeemed.
Section 1104. NOTICE OF REDEMPTION. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification, including CUSIP numbers, (and, in the case of
partial redemption, the respective principal amounts) of the Securities to
be redeemed, from the Holder to whom the notice is given;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest, if any, thereon
shall cease to accrue from and after said date;
(5) the place where such Securities are to be surrendered for payment
of the Redemption Price, which shall be the office or agency of the Company
in the Place of Payment; and
(6) that the redemption is on account of a sinking or purchase fund,
or other analogous obligation, if that be the case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company. Such notice shall
be deemed to have been given to each Holder if sent in accordance with
Section 105 hereof.
Section 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to 10:00
a.m. on any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of all the Securities which are to be
redeemed on that date.
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Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
Redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease
to bear interest. Upon surrender of such Securities for redemption in
accordance with the notice, such Securities shall be paid by the Company at
the Redemption Price. Installments of interest the Stated Maturity of which
is on or prior to the Redemption Date shall be payable to the Holders of such
Securities registered as such on the relevant Regular Record Dates according
to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security, or as
otherwise provided in such Security.
Section 1107. SECURITIES REDEEMED IN PART. Any Security which is
to be redeemed only in part shall be surrendered at the office or agency of
the Company in the Place of Payment with respect to that series (with, if the
Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security
or Securities of the same series and Stated Maturity and of like tenor and
terms, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
Section 1108. PROVISIONS WITH RESPECT TO ANY SINKING FUNDS. Unless
the form or terms of any series of Securities shall provide otherwise, in
lieu of making all or any part of any mandatory sinking fund payment with
respect to such series of Securities in cash, the Company may at its option
(1) deliver to the Trustee for cancellation any Securities of such series
theretofore acquired by the Company, or (2) receive credit for any Securities
of such series (not previously so credited) acquired by the Company and
theretofore delivered to the Trustee for cancelation or redeemed by the
Company other than through the mandatory sinking fund, and if it does so then
(i) Securities so delivered or credited shall be credited at the applicable
sinking fund Redemption Price with respect to Securities of such series, and
(ii) on or before the 60th day next preceding each sinking fund Redemption
Date with respect to such series of Securities, the Company will deliver to
the Trustee (A) an Officers' Certificate specifying the portions of such
sinking fund payment to be satisfied by payment of cash and by delivery or
credit of Securities of such series acquired by the Company or so redeemed,
and (B) such Securities so acquired, to the extent not previously
surrendered. Such Officers' Certificate shall also state the basis for such
credit and that the Securities for which the Company elects to receive credit
have not been previously so credited and were not redeemed by the Company
through operation of the mandatory sinking fund, if any, provided with
respect to such Securities and shall also state that no Event of Default with
respect to Securities of such series has occurred and is continuing. All
Securities so delivered to the Trustee shall be canceled by the Trustee and
no Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional)
with respect to any series of Securities made in cash plus any unused balance
of any preceding sinking fund payments with respect to Securities of such
series made in cash shall exceed $50,000 (or a lesser sum if the Company
shall so request), unless otherwise provided by the terms of such series of
Securities, that cash shall be applied by the Trustee on the sinking fund
Redemption Date with respect to Securities of such series next following the
date of such payment to the redemption of Securities of such series
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at the applicable sinking fund Redemption Price with respect to Securities of
such series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 1106. The Trustee shall
select, in the manner provided in Section 1103, for redemption on such
sinking fund Redemption Date a sufficient principal amount of Securities of
such series to utilize that cash and shall thereupon cause notice of
redemption of the Securities of such series for the sinking fund to be given
in the manner provided in Section 1104 (and with the effect provided in
Section 1106) for the redemption of Securities in part at the option of the
Company. Any sinking fund moneys not so applied or allocated by the Trustee
to the redemption of Securities of such series shall be added to the next
cash sinking fund payment with respect to Securities of such series received
by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 1108. Any and all sinking
fund moneys with respect to Securities of any series held by the Trustee at
the Maturity of Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of such
series at Maturity.
On or before each sinking fund Redemption Date provided with
respect to Securities of any series, the Company shall pay to the Trustee in
cash a sum equal to all accrued interest, if any, to the date fixed for
redemption on Securities to be redeemed on such sinking fund Redemption Date
pursuant to this Section 1108.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
HEFTEL BROADCASTING CORPORATION,
by
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
by
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Name:
Title:
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